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112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    112-322

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



 
        ENDANGERED SALMON AND FISHERIES PREDATION PREVENTION ACT

                                _______
                                

December 8, 2011.--Committed to the Committee of the Whole House on the 
              State of the Union and 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. 3069]

      [Including cost estimate of the Congressional Budget Office]

      The Committee on Natural Resources, to whom was referred 
the bill (H.R. 3069) to amend the Marine Mammal Protection Act 
of 1972 to reduce predation on endangered Columbia River salmon 
and other nonlisted species, and for other purposes, having 
considered the same, report favorably thereon without amendment 
and recommend that the bill do pass.

                          Purpose of the Bill

    The purpose of H.R. 3069 is to amend the Marine Mammal 
Protection Act of 1972 to reduce predation on endangered 
Columbia River salmon and other nonlisted species.

                  Background and Need for Legislation

    The Marine Mammal Protection Act (MMPA) has resulted in 
California sea lions and certain populations of Steller sea 
lions being restored to historic levels. Steller sea lions are 
protected under the MMPA and the Endangered Species Act (ESA), 
because the Western and Eastern populations of this species are 
listed as endangered and threatened, respectively. In August 
2010, the States of Washington, Oregon and Alaska filed two 
petitions with the National Oceanic and Atmospheric 
Administration's (NOAA) National Marine Fisheries Service 
(NMFS) to de-list the Eastern population of Steller sea lions, 
and NMFS has announced it is reviewing those petitions for a 
decision by the end of 2011.
    The current MMPA allows for the lethal removal of marine 
mammals in narrow instances. Section 120, which was added in 
1994 amendments to the MMPA, allows States to apply to the 
Secretary of Commerce for an authorization to lethally take a 
nuisance pinniped, except those listed under the ESA, 
identified as having a ``significant negative impact'' on ESA 
listed salmon stocks. This section requires the Secretary of 
Commerce to review the impacts of California sea lions and 
Pacific harbor seals on West Coast salmon and recommend a 
course of action. The original report was completed and 
submitted to Congress. A second report with specific 
recommendations for MMPA amendments was submitted by NMFS in 
1999. NMFS recommended that Congress amend MMPA to include 
site-specific management, including use of lethal and non-
lethal removal of California sea lions and harbor seals. No 
changes have been made to this authority since then, and the 
result has been a huge increase in sea lions feasting on an 
increasing amount of ESA-listed and other fish species in the 
Columbia River and other tributaries.
    Increasing Numbers of Sea Lions in Columbia River. The Army 
Corps of Engineers reports that the daily average of pinnipeds 
(harbor seals, steller sea lions, and California sea lions) at 
Bonneville Dam on the Columbia River have steadily increased 
over the past several years. NMFS reported that in a typical 
May there are roughly 3,000 Pacific harbor seals, 1,000 Steller 
sea lions, and 800 California sea lions resting in haul-out 
sites in the Columbia River estuary. All of these animals feed 
in the Columbia River and nearshore marine areas on a variety 
of prey, including squid, smelt, herring, flatfish, perch, 
pollock, hake, rockfish, sturgeon and salmon.
    Impacts on Endangered Species Act-listed Salmon and 
Steelhead and White Sturgeon. Estimates of annual predation on 
spawning ESA-listed salmon range between 4,000 to 6,000 per 
year since 2008 for spring salmon. The actual number is likely 
much higher, since many fish kills by sea lions are out of 
sight of observers. In addition, a growing number of Steller 
sea lions at Bonneville have increased predation of both salmon 
and non-listed white sturgeon, which are important species for 
State and tribal fisheries. An expert with the Oregon 
Department of Fish and Wildlife testified that data suggests 
that sea lions are consuming as much as 16 to 20 percent of 
endangered Spring Chinook salmon, an alarming number.
    Ineffectiveness and Litigation on Current Section 120. Due 
to increasing numbers of sea lions preying on salmon runs, in 
2006, the States of Oregon, Washington, and Idaho applied to 
NOAA for lethal take authority under Section 120 of the MMPA. 
NMFS established an 18-member Task Force, representing 
academic, scientific, environmental, tribal, federal and State 
agencies, that transmitted recommendations to NMFS on November 
5, 2007. The Task Force's recommendations ultimately resulted 
in partial approval of the States' application by NMFS on March 
18, 2008, to remove as many as 85 sea lions annually, with 
specific conditions.
    Shortly after, the Humane Society of the United States and 
other groups filed a federal lawsuit, alleging NMFS' approval 
of the lethal removal of California sea lions violated the MMPA 
and the National Environmental Policy Act (NEPA). In November 
2008, the district court upheld NMFS' approval of the lethal 
removal program and NMFS' evaluation of impacts under NEPA. 
Plaintiffs appealed. During the period between 2008 and 2010, 
the States of Washington and Oregon and the Columbia River 
Inter-Tribal Fish Commission continued to conduct non-lethal 
and lethal removal activities, and the U.S. Army Corps of 
Engineers modified fish passage facilities at Bonneville Dam to 
exclude sea lions and conducted active hazing. Between 2008 and 
2010, the States removed a total of 40 California sea lions. 
Ten were placed in public display facilities, four died while 
being examined and 26 were euthanized.
    On November 23, 2010, the Ninth Circuit instructed the 
district court to vacate NMFS' Section 120 decision and remand 
the decision to NMFS ``to afford the agency the opportunity 
either to articulate a reasoned explanation for its action or 
to adopt a different action with a reasoned explanation that 
supports it.'' Humane Society of the U.S. v. Locke, 626 F.3d 
1040, 1053 (2010).
    On May 13, 2011, NMFS, following recommendations by an 
independent Pinniped Task Force that the current non-lethal 
program was not effective in reducing impacts on salmon, 
announced it had properly responded to the federal district 
court's concerns and that it was resuming permission for 
Washington and Oregon to lethally remove individual 
identifiable California sea lions that were observed eating 
salmon or steelhead in the area immediately below Bonneville 
Dam. The Humane Society filed a lawsuit to block implementation 
a week later, and the States announced they would suspend 
lethal removal pending further direction. On July 26, 2011, 
NOAA announced it was withdrawing its authorization for 
Washington and Oregon to lethally remove California sea lions 
at Bonneville Dam, and instead accepted a new request, that the 
States, including the State of Idaho, submitted on August 22, 
2011. On September 12, 2011, NOAA announced it was convening 
the Pinniped Task Force to review the application.
    H.R. 3069 amends Section 120 of the Marine Mammal 
Protection Act to allow the Secretary of Commerce to issue 
permits to eligible States and tribes to lethally remove sea 
lions on the Columbia River or its tributaries. This new 
Secretarial authority could be suspended at the discretion of 
the Secretary, after consultation with effected States and 
tribes five years after the date of enactment if the Secretary 
determines that the lethal take of predatory sea lions is no 
longer necessary to protect salmon stocks. NEPA would not apply 
to this subsection or to any permits issued during the five-
year period beginning on the date of enactment of the Act.
    The Administration testified in support of a provision in 
an earlier version of the bill (H.R. 946) that attempted to 
streamline procedures necessary to take action on a growing 
wildlife problem, but did not officially endorse or oppose the 
bill. It raised concerns about H.R. 946, which have been 
addressed in H.R. 3069, including the removal of a provision 
that required identification of individual predatory sea lions, 
which NOAA noted would be impractical to apply; removal of a 
provision requiring a determination that non-lethal measures 
are ineffective, something that has already been determined by 
the Pinniped Task Force; removal of the reporting requirement, 
which NOAA noted has been complied with; and streamlining of 
the specific, difficult to implement provisions of the permits.
    The Directors of the Washington and Oregon Departments of 
Fish and Wildlife, the Columbia River Inter-Tribal Fish 
Commission, and the Confederated Tribes of the Yakama Indian 
Nation submitted letters supporting H.R. 3069.

                            Committee Action

    H.R. 3069 was introduced with broad bipartisan support on 
September 29, 2011, by Congressman Doc Hastings (R-WA), and 
cosponsored by Congressman Norm Dicks (D-WA), Congresswoman 
Jaime Herrera Beutler (R-WA), Congressman Kurt Schrader (D-OR), 
Congressman Greg Walden (R-OR) and Congressman Mike Simpson (R-
ID). It followed several versions from two previous Congresses, 
including one introduced by former Congressman Brian Baird (D-
WA) in 2007. H.R. 3069 was referred to the Committee on Natural 
Resources, and on October 5, 2011, the Full Natural Resources 
Committee met to consider the bill. Congresswoman Madeleine 
Bordallo (D-GU) offered amendment designated .002 to the bill; 
the amendment was not adopted by voice vote. Congresswoman 
Bordallo offered amendment designated .003 to the bill; the 
amendment was not adopted by voice vote. Congresswoman Bordallo 
offered amendment designated .010 to the bill; the amendment 
was not adopted by a rollcall vote of 17 to 26, as follows:


    Congressman Ed Markey (D-MA) offered amendment designated 
.001; the amendment was withdrawn. The bill was then ordered 
favorably reported to the House of Representatives by a 
bipartisan rollcall vote of 29 to 13, as follows:


                      Section-by-Section Analysis


Section 1. Short title

    This Act may be cited as the ``Endangered Salmon and 
Fisheries Predation Prevention Act.''

Section 2. Findings

    This section provides findings for the bill.

Section 3. Taking of sea lions on the Columbia River and its 
        tributaries to protect endangered and threatened species of 
        salmon and other nonlisted fish species

    Section 3 authorizes the Secretary of Commerce to issue 
annual permits to ``eligible entities'' to lethally remove up 
to 10 sea lions per permit, no more than 1 percent of potential 
biological removal level per year. ``Eligible entities'' are 
defined to include the States of Washington, Oregon and Idaho, 
the Nez Perce Tribe, the Confederated Tribes of the Umatilla 
Indian Reservation, the Confederated Tribes of the Warm Springs 
Reservation of Oregon, the Confederated Tribes and Bands of the 
Yakama Nation, and the Columbia Intertribal Fish Commission.
    The section authorizes any eligible permitted entity to 
lethally remove sea lions, to delegate its authority to any 
other eligible entity, and to allow States and tribes to 
further coordinate these ongoing efforts. Further, the section 
waives the application of the National Environmental Policy Act 
with regard to the process or implementation of lethal permits.
    The section also allows the Secretary of Commerce to 
suspend permitting authority, after consultation with the 
affected States and tribes, if the Secretary believes lethal 
removal is no longer necessary to protect fish species.

Section 4. Sense of Congress

    Section 4 includes the sense of the Congress that 
preventing predation by sea lions, recovery of listed salmon 
stocks, and preventing future listings of fish stocks in the 
Columbia River is a vital priority; permit holders exercising 
lethal removal authority should be trained in wildlife 
management; and the federal government should continue to fund 
lethal and nonlethal removal measures for preventing such 
predation.

Section 5. Treaty rights of federally recognized Indian tribes

    Section 5 ensures that the bill's provisions do not impact 
the treaty rights of any federally-recognized tribe.

            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. 3069--Endangered Salmon and Fisheries Predation Prevention Act

    H.R. 3069 would authorize the National Oceanic and 
Atmospheric Administration (NOAA) to issue permits to allow 
states and tribal entities in the Northwest United States to 
kill (engage in the lethal taking of) California sea lions 
under certain circumstances. Each permit would allow up to 10 
sea lions a year to be removed from healthy populations that 
threaten species of salmon and other fish that are listed as 
endangered or threatened under the Endangered Species Act.
    Under current law, NOAA has the authority to issue permits 
to kill certain marine mammals that threaten other species. 
Based on information provided by the agency, CB0 estimates that 
providing NOAA with the authority to issue such permits for 
California sea lions would have a negligible impact on the 
federal budget. Enacting H.R. 3069 would not affect direct 
spending or revenues; therefore, pay-as-you-go procedures do 
not apply.
    H.R. 3069 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Jeff LaFaye. The 
estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.
    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. Under current law, 
NOAA has the authority to issue permits to kill certain marine 
mammals that threaten other species. Based on information 
provided by the agency, CBO estimates that providing NOAA with 
the authority to issue permits for California sea lions would 
have a negligible 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 is to amend the Marine Mammal Protection 
Act of 1972 to reduce predation on endangered Columbia River 
salmon and other nonlisted species.

                           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 (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

MARINE MAMMAL PROTECTION ACT OF 1972

           *       *       *       *       *       *       *



TITLE I--CONSERVATION AND PROTECTION OF MARINE MAMMALS

           *       *       *       *       *       *       *



SEC. 120. PACIFIC COAST TASK FORCE; GULF OF MAINE.

  (a) * * *

           *       *       *       *       *       *       *

  [(f) California Sea Lions and Pacific Harbor Seals; 
Investigation and Report.--
          [(1) The Secretary shall engage in a scientific 
        investigation to determine whether California sea lions 
        and Pacific harbor seals--
                  [(A) are having a significant negative impact 
                on the recovery of salmonid fishery stocks 
                which have been listed as endangered species or 
                threatened species under the Endangered Species 
                Act of 1973 (16 U.S.C. 1531 et seq.), or which 
                the Secretary finds are approaching such 
                endangered species or threatened species 
                status; or
                  [(B) are having broader impacts on the 
                coastal ecosystems of Washington, Oregon, and 
                California.
        The Secretary shall conclude this investigation and 
        prepare a report on its results no later than October 
        1, 1995.
          [(2) Upon completion of the scientific investigation 
        required under paragraph (1), the Secretary shall enter 
        into discussions with the Pacific States Marine 
        Fisheries Commission, on behalf of the States of 
        Washington, Oregon, and California, for the purpose of 
        addressing any issues or problems identified as a 
        result of the scientific investigation, and to develop 
        recommendations to address such issues or problems. Any 
        recommendations resulting from such discussions shall 
        be submitted, along with the report, to the Committee 
        on Merchant Marine and Fisheries of the House of 
        Representatives and the Committee on Commerce, Science, 
        and Transportation of the Senate.
          [(3) The Secretary shall make the report and the 
        recommendations submitted under paragraph (2) available 
        to the public for review and comment for a period of 90 
        days.
          [(4) There are authorized to be appropriated to the 
        Secretary such sums as are necessary to carry out the 
        provisions of this subsection.
          [(5) The amounts appropriated under section 308(c) of 
        the Interjurisdictional Fisheries Act of 1986 (16 
        U.S.C. 4107(c)) and allocated to the Pacific States 
        Marine Fisheries Commission may be used by the 
        Commission to participate in discussions with the 
        Secretary under paragraph (2).]
  (f) Temporary Marine Mammal Removal Authority on the Waters 
of the Columbia River or Its Tributaries.--
          (1) Removal authority.--Notwithstanding any other 
        provision of this Act, the Secretary may issue a permit 
        to an eligible entity authorizing the intentional 
        lethal taking on the waters of the Columbia River and 
        its tributaries of sea lions that are part of a healthy 
        population that is not listed as an endangered species 
        or threatened species under the Endangered Species Act 
        of 1973 (16 U.S.C. 1531 et seq.), to protect endangered 
        and threatened species of salmon and other nonlisted 
        fish species.
          (2) Permit process.--
                  (A) In general.--An eligible entity may apply 
                to the Secretary for a permit under this 
                subsection.
                  (B) Deadline for consideration of 
                application.--The Secretary shall approve or 
                deny an application for a permit under this 
                subsection by not later than 30 days after 
                receiving the application.
                  (C) Duration of permit.--A permit under this 
                subsection shall be effective for no more than 
                one year after the date it is issued, but may 
                be renewed by the Secretary.
          (3) Limitations.--
                  (A) Limitation on permit authority.--Subject 
                to subparagraph (B), a permit issued under this 
                subsection shall not authorize the lethal 
                taking of more than 10 sea lions during the 
                duration of the permit.
                  (B) Limitation on annual takings.--The 
                cumulative number of sea lions authorized to be 
                taken each year under all permits in effect 
                under this subsection shall not exceed one 
                percent of the annual potential biological 
                removal level.
          (4) Delegation of permit authority.--Any eligible 
        entity may delegate to any other eligible entity the 
        authority to administer its permit authority under this 
        subsection.
          (5) Nepa.--Section 102(2)(C) of the National 
        Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)) 
        shall not apply with respect to this subsection and the 
        issuance of any permit under this subsection during the 
        5-year period beginning on the date of the enactment of 
        this subsection.
          (6) Suspension of permitting authority.--
                  If, 5 years after enactment, the Secretary, 
                after consulting with State and tribal fishery 
                managers, determines that lethal removal 
                authority is no longer necessary to protect 
                salmonid and other fish species from sea lion 
                predation, may suspend the issuance of permits 
                under this subsection.
          (7) Eligible entity defined.--In this subsection, the 
        term ``eligible entity'' means each of the State of 
        Washington, the State of Oregon, the State of Idaho, 
        the Nez Perce Tribe, the Confederated Tribes of the 
        Umatilla Indian Reservation, the Confederated Tribes of 
        the Warm Springs Reservation of Oregon, the 
        Confederated Tribes and Bands of the Yakama Nation, and 
        the Columbia River Inter-Tribal Fish Commission

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    H.R. 3069, the Endangered Salmon and Fisheries Predation 
Prevention Act, would amend the Marine Mammal Protection Act 
(MMPA) to authorize the Secretary of Commerce to issue annual 
permits to Washington, Oregon, Idaho and five tribal groups 
(Nez Perce, Umatilla, Warm Springs, Yakama, and the Columbia 
River Inter-Tribal Fish Commission) to lethally take sea lions. 
The bill's stated intent is intended to reduce the effect of 
predation by sea lions on salmon listed under the Endangered 
Species Act (ESA) and any non-listed fish. Under H.R. 3069, as 
many as 85 sea lions could be taken in a year, which exceeds 
the number of individuals identified at the Bonneville Dam in 
2011 (50 animals). H.R. 3069 also waives the application of 
Section 102(2)(c) of the National Environmental Policy Act 
(NEPA) to the permit process. This would eliminate the 
requirement that the Secretary consider the environmental 
impacts associated with the permit, and alternatives to the 
permitted action.
    H.R. 3069 targets the threat that any fish face from 
predation by marine mammals, specifically sea lions, but does 
not address other far more significant factors which impact 
endangered salmon or non-listed fish. Other threats to ESA-
listed salmon and non-listed fish in the Columbia River include 
hydropower development and habitat loss, fishing pressure, 
interactions with hatchery fish, climate change, pesticides, 
and predation.
    In contrast, the salmon predation rate by California sea 
lions (predation as a percent of the salmon run) below 
Bonneville Dam from January to May has declined each year since 
2007 from 4.2 percent to 2.2 percent in 2010. Preliminary 
results for 2011 indicate a predation rate of 1.4 percent with 
the fewest number of California sea lions than any year since 
2002. With a run size of 205,000 fish, 2011 marks the third 
highest spring salmon run size since 2002. California sea lions 
are eating only 10 percent the amount of salmon that fishermen 
are court-approved to take. Ironically, while H.R. 3069 focuses 
on the ``threat'' that marine mammals pose to salmon and other 
fish, the fact is that rates of predation increase in areas 
where human barriers, such as fishing locks or dams with fish 
ladders, increase the concentration of adult and juvenile 
salmon and other fish.
    During full committee mark-up of this bill on October 5, 
2011, Congresswoman Bordallo offered an amendment to require 
the Secretary of Commerce to make a determination that the 
killing of a sea lion is conducted humanely before a permit can 
be issued. H.R. 3069 places no stipulation as to the distance 
from which sea lions can be shot or the platforms from which 
shooting can take place. If a person is allowed to shoot a sea 
lion from an unstable platform, like a boat, this could result 
in an unpredictable and inhumane death. This amendment was 
defeated, with the Majority voting in opposition.
    H.R. 3069 has not received a legislative hearing, although 
on June 14, 2011, the Fisheries, Wildlife, Oceans, and Insular 
Affairs Subcommittee held a hearing on a predecessor bill, H.R. 
946, the Endangered Salmon Predation Prevention Act. The 
Administration did not support H.R. 946, due to concerns with 
streamlining the process for the lethal take of sea lions and 
the NEPA exemption. Despite these objections, H.R. 3069 expands 
the scope of H.R. 946 to allow the take of any sea lion, 
including California sea lions, which eat any fish, including 
but not limited to, endangered salmon. H.R. 3069 allows the 
Secretary of Commerce to renew permits to take sea lions 
without review. H.R. 3069 extends the NEPA waiver from 3 to 5 
years and expands the entities eligible to take sea lions to 
include the State of Idaho and the Columbia River Inter-Tribal 
Fish Commission.
    H.R. 3069, if enacted, would not put into place meaningful 
action needed to address all the threats faced by endangered 
salmon and non-listed species. For these reasons, we oppose 
H.R. 3069 as reported.
                                   Edward J. Markey.
                                   Rush Holt.
                                   Dale E. Kildee.
                                   Grace F. Napolitano.
                                   Niki Tsongas.
                                   Raul M. Grijalva.
                                   John Garamendi.