H. Rept. 113-330 - ENDANGERED SALMON AND FISHERIES PREDATION PREVENTION ACT113th Congress (2013-2014)
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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.