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113th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     113-330

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



 
        ENDANGERED SALMON AND FISHERIES PREDATION PREVENTION ACT

                                _______
                                

   January 23 (legislative day, January 21), 2014.--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. 1308]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 1308) 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. 1308 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 Western population of these 
sea lions is also listed under the Endangered Species Act 
(ESA). Another population of Steller sea lions, the Eastern 
population, was delisted under the ESA by the National Marine 
Fisheries Service (NMFS) in September 2013.
    The current MMPA allows for the lethal removal of marine 
mammals in narrow instances. Section 120, which was added by 
the 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 the use of lethal and non-
lethal removal of California sea lions and harbor seals. 
However, changes have been made to Section 120 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 its tributaries.
    Increasing Numbers of Sea Lions in Columbia River. The Army 
Corps of Engineers has reported 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. Each 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. 
The State of Oregon estimates that these animals consume 15 to 
30 pounds of fish per day.
    Impacts on ESA-listed Salmon and Steelhead and White 
Sturgeon. Estimates of annual predation on spawning ESA-listed 
salmon range between 12,000 to 20,000 per year. 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, since 
2006, the States of Oregon, Washington, and Idaho have applied 
to NMFS three separate times for lethal take authority under 
Section 120 of the MMPA. Each of these applications underwent a 
thorough and extensive National Environmental Policy Act (NEPA) 
review and approval by an 18-member Task Force, representing 
academic, scientific, environmental, tribal, federal and State 
agencies.
    The NMFS' approval of these state applications for lethal 
removal have been challenged by the Humane Society of the 
United States and other groups in federal court since 2008, 
including temporary and permanent injunction motions, appeals 
for emergency relief, appeals of district court orders that 
upheld NMFS' actions, new lawsuits filed in a different circuit 
court, and additional review by the Ninth Circuit Court of 
Appeals. Ultimately, in September 2013, the courts held that 
the NMFS actions to approve the lethal take applications were 
appropriate and warranted under the existing Section 120 
authority of the MMPA.
    H.R. 1308 amends Section 120 of the MMPA to allow the 
Secretary of Commerce to issue permits to eligible States and 
tribes to lethally remove healthy populations of sea lions, 
including de-listed Steller sea lions, on the Columbia River or 
its tributaries, including Steller sea lions which have grown 
in large numbers in recent years and have escalated predation 
of endangered salmon as well as non-listed, but state-regulated 
white sturgeon species. This new Secretarial authority could be 
suspended at the discretion of the Secretary, after 
consultation with affected 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. With the extensive, previous NEPA 
analyses upheld by multiple federal courts, NEPA analyses 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 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 have testified in support of H.R. 1308.

                            Committee Action

    H.R. 1308 was introduced on March 21, 2013, by Congressman 
Doc Hastings (R-WA). The bill was referred to the Committee on 
Natural Resources, and within the Committee to the Subcommittee 
on Fisheries, Wildlife, Oceans and Insular Affairs. On June 13, 
2013, the Subcommittee held a hearing on the bill. On November 
14, 2013, the Natural Resources Committee met to consider the 
bill. The Subcommittee on Fisheries, Wildlife, Oceans and 
Insular Affairs was discharged by unanimous consent. No 
amendments were offered, and the bill was adopted and ordered 
favorably reported to the House of Representatives by a roll 
call vote of 22 to 16, 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 NEPA 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. 1308--Endangered Salmon and Fisheries Predation Prevention Act

    H.R. 1308 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 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, CBO 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. 1308 would not affect direct 
spending or revenues; therefore, pay-as-you-go procedures do 
not apply.
    H.R. 1308 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Jeff LaFave. 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. CBO estimates that 
the bill 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.

                       Compliance With H. Res. 5

    Directed Rule Making. The Chairman does not believe that 
this bill directs any executive branch official to conduct any 
specific rule-making proceedings.
    Duplication of Existing Programs. This bill does not 
establish or reauthorize a program of the federal government 
known to be duplicative of another program. Such program was 
not included in any report from the Government Accountability 
Office to Congress pursuant to section 21 of Public Law 111-139 
or identified in the most recent Catalog of Federal Domestic 
Assistance published pursuant to the Federal Program 
Information Act (Public Law 95-220, as amended by Public Law 
98-169) as relating to other programs.

                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. 1308, 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 kill sea lions. The 
bill's stated intent is to reduce the effect of predation by 
sea lions on salmon listed under the Endangered Species Act 
(ESA), as well as any non-listed fish, which would include non-
native species that pose a greater threat to salmon than do sea 
lions. Under H.R. 1308, as many as 85 sea lions could be killed 
in a year. The authority to kill sea lions would no longer be 
limited to the ``bottleneck'' area immediately below the 
Bonneville Dam as it is under the existing NOAA lethal take 
authorization. H.R. 1308 also waives application of Section 
102(2)(c) of the National Environmental Policy Act (NEPA) to 
the permit process, eliminating the requirement that the 
Secretary consider the environmental impacts associated with 
the permit, and alternatives to the permitted action.
    H.R. 1308 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 by fish and wildlife other than sea lions, all of 
which appear to be worsening over time. In contrast, the 
percentage of salmon runs taken by California sea lions has 
declined from 4.2 percent in 2007 to 1.2 percent in 2012. Sea 
lion predation represents a small percentage of salmon 
mortality and the current authorization--which was recently 
upheld by the 9th Circuit Court of Appeals--is sufficient.
    H.R. 1308, if enacted, would not address the most serious 
threats faced by endangered salmon and non-listed species, but 
would needlessly target sea lions, which are a native and 
critical part of the Columbia River ecosystem. For these 
reasons, we oppose H.R. 1308, as reported.

                                   Peter DeFazio,
                                           Ranking Member, Committee on 
                                               Natural Resources.
                                   Gregorio Kilili Camacho Sablan.