[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
H.R. 946, ENDANGERED SALMON PREDATION PREVENTION ACT
=======================================================================
LEGISLATIVE HEARING
before the
SUBCOMMITTEE ON FISHERIES, WILDLIFE,
OCEANS AND INSULAR AFFAIRS
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
Tuesday, June 14, 2011
__________
Serial No. 112-41
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.fdsys.gov
or
Committee address: http://naturalresources.house.gov
_____
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COMMITTEE ON NATURAL RESOURCES
DOC HASTINGS, WA, Chairman
EDWARD J. MARKEY, MA, Ranking Democrat Member
Don Young, AK Dale E. Kildee, MI
John J. Duncan, Jr., TN Peter A. DeFazio, OR
Louie Gohmert, TX Eni F.H. Faleomavaega, AS
Rob Bishop, UT Frank Pallone, Jr., NJ
Doug Lamborn, CO Grace F. Napolitano, CA
Robert J. Wittman, VA Rush D. Holt, NJ
Paul C. Broun, GA Raul M. Grijalva, AZ
John Fleming, LA Madeleine Z. Bordallo, GU
Mike Coffman, CO Jim Costa, CA
Tom McClintock, CA Dan Boren, OK
Glenn Thompson, PA Gregorio Kilili Camacho Sablan,
Jeff Denham, CA CNMI
Dan Benishek, MI Martin Heinrich, NM
David Rivera, FL Ben Ray Lujan, NM
Jeff Duncan, SC John P. Sarbanes, MD
Scott R. Tipton, CO Betty Sutton, OH
Paul A. Gosar, AZ Niki Tsongas, MA
Raul R. Labrador, ID Pedro R. Pierluisi, PR
Kristi L. Noem, SD John Garamendi, CA
Steve Southerland II, FL Colleen W. Hanabusa, HI
Bill Flores, TX Vacancy
Andy Harris, MD
Jeffrey M. Landry, LA
Charles J. ``Chuck'' Fleischmann,
TN
Jon Runyan, NJ
Bill Johnson, OH
Todd Young, Chief of Staff
Lisa Pittman, Chief Counsel
Jeffrey Duncan, Democrat Staff Director
David Watkins, Democrat Chief Counsel
------
SUBCOMMITTEE ON FISHERIES, WILDLIFE, OCEANS
AND INSULAR AFFAIRS
JOHN FLEMING, LA, Chairman
GREGORIO KILILI CAMACHO SABLAN, CNMI, Ranking Democrat Member
Don Young, AK Eni F.H. Faleomavaega, AS
Robert J. Wittman, VA Frank Pallone, Jr., NJ
Jeff Duncan, SC Madeleine Z. Bordallo, GU
Steve Southerland, II, FL Pedro R. Pierluisi, PR
Bill Flores, TX Colleen W. Hanabusa, HI
Andy Harris, MD Vacancy
Jeffrey M. Landry, LA Edward J. Markey, MA, ex officio
Jon Runyan, NJ
Doc Hastings, WA, ex officio
CONTENTS
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Page
Hearing held on Tuesday, June 14, 2011........................... 1
Statement of Members:
Bordallo, Hon. Madeleine Z., a Delegate in Congress from Guam 2
Prepared statement of.................................... 3
Fleming, Hon. John, a Representative in Congress from the
State of Louisiana......................................... 1
Prepared statement of.................................... 2
Hastings, Hon. Doc, a Representative in Congress from the
State of Washington........................................ 3
Prepared statement of.................................... 5
Walden, Hon. Greg, a Representative in Congress from the
State of Oregon, Statement submitted for the record........ 3
Statement of Witnesses:
Brown, Robin F., Program Leader, Marine Mammal Research and
Management, Oregon Department of Fish and Wildlife......... 13
Prepared statement of.................................... 14
Lecky, James, Director, Office of Protected Resources,
National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, U.S. Department of Commerce.... 6
Prepared statement of.................................... 8
Lewis, Hon. Virgil, Sr., Confederated Tribes and Bands of the
Yakama Nation, and Commissioner, Columbia River Inter-
Tribal Fish Commission..................................... 23
Prepared statement of.................................... 24
Norman, Guy R., Regional Director, Washington Department of
Fish and Wildlife.......................................... 17
Prepared statement of.................................... 19
Young, Sharon B., Marine Issues Field Director, The Humane
Society of the United States............................... 29
Prepared statement of.................................... 31
Additional materials supplied:
Frank, Billy, Chairman, Northwest Indian Fishing Commission,
Statement submitted for the record by The Honorable Doc
Hastings................................................... 44
International Fund for Animals, Letter submitted for the
record..................................................... 38
LEGISLATIVE HEARING ON H.R. 946, TO AMEND THE MARINE MAMMAL PROTECTION
ACT OF 1972 TO REDUCE PREDATION ON ENDANGERED COLUMBIA RIVER SALMON,
AND FOR OTHER PURPOSES. "ENDANGERED SALMON PREDATION PREVENTION ACT.''
----------
Tuesday, June 14, 2011
U.S. House of Representatives
Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs
Committee on Natural Resources
Washington, D.C.
----------
The Subcommittee met, pursuant to call, at 10:01 a.m. in
Room 1324, Longworth House Office Building, Hon. John Fleming
[Chairman of the Subcommittee] presiding.
Present: Representatives Fleming, Southerland, Hastings,
[ex officio] and Bordallo.
STATEMENT OF HON. JOHN FLEMING, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF LOUISIANA
Dr. Fleming. The Subcommittee will come to order. The
Chairman notes the presence of a quorum. Good morning. Today,
the Subcommittee on Fisheries, Wildlife, Oceans and Insular
Affairs, will conduct a legislative hearing on H.R. 946, the
``Endangered Salmon Predation Prevention Act''.
Under Committee Rule 4[f], opening statements are limited
to the Chairman and Ranking Member of the Subcommittee so that
we can hear from our witnesses more quickly. However, I ask
unanimous consent to include any other Members' opening
statements in the hearing record if submitted to the Clerk by
the close of business today. Hearing no objection, so ordered.
Marine mammals were given Federal protection in 1972 with
the enactment of the Marine Mammal Protection Act. Congress
enacted the law in part to address the decline of many marine
mammal populations from various human activities.
The Act has been very successful in protecting and
restoring marine mammal species to abundant levels. The
California sea lion population is an example of the Act's
success.
However, the high number of sea lions is having an adverse
impact on salmon and steelhead species listed under the
Endangered Species Act. In 1994, the Marine Mammal Protection
Act was amended to authorize the use of deterrence methods to
reduce sea lion predation on the listed fish species.
However, the nonlethal removal measures have not been
successful. H.R. 946 would require the Secretary of Commerce to
make a determination that nonlethal deterrence measures are not
working to protect listed salmon species.
The Secretary would then be authorized to use a temporary
expedited permit process to allow the States to lethally remove
a limited number of sea lions to protect threatened and
endangered salmon migrating up the Columbia River to spawn.
I look forward to hearing from our distinguished witnesses,
and now recognize our Acting Ranking Member, Ms. Bordallo, for
any statement that she would like to make.
[The prepared statement of Dr. Fleming follows:]
Statement of The Honorable John Fleming, Chairman,
Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs
Good morning, we are here today to discuss H.R. 946, the Salmon
Predation Prevention Act, a bill sponsored by our Full Committee
Chairman, Doc Hastings.
Marine Mammals were given federal protection in 1972, with the
enactment of the Marine Mammal Protection Act. Congress enacted the law
in part to address the decline of many marine mammal populations from
various human activities. The Act has been very successful in
protecting and restoring marine mammal populations to abundant levels--
the California sea lion population is an example of the Act's success.
However, the high sea lion population is having an adverse impact on
salmon and steelhead stocks which are listed under the Endangered
Species Act.
______
STATEMENT OF HON. MADELEINE Z. BORDALLO, A DELEGATE IN CONGRESS
FROM THE TERRITORY OF GUAM
Ms. Bordallo. Thank you very much, Mr. Chairman, and good
morning to all the witnesses. This morning's hearing on H.R.
946, The Endangered Salmon Predation Prevention Act, focuses on
an issue important to Members in the Pacific Northwest.
H.R. 946 would authorize the Secretary of Commerce to issue
permits enabling the States of Washington and Oregon, and
tribes that are members of the Columbia River Intertribal Fish
Commission, to take lethal measures against sea lions preying
on endangered salmon throughout the Columbia River.
The bill would also waive the application of the National
Environmental Policy Act to the permit process. This would
eliminate the requirement that the Secretary consider the
environmental impacts and alternatives, as well as the public
input, to take lethal action against the sea lions.
There already is a provision in the Marine Mammal
Protection Act that was included in 1994 to address salmon
predation by sea lions. Section 120 authorizes the Secretary to
permit the intentional lethal taking of sea lions and, to date,
37 California sea lions have been removed from the Bonneville
Dam area.
H.R. 946 focuses on the impact of predation by California
sea lions on endangered salmon. According to the Army Corps of
Engineers, California sea lions have only consumed 1.4 percent
of this year's salmon run, which is the lowest percentage since
2003.
Meanwhile, salmon populations battle a variety of other
threats, including hydropower development, habitat loss,
fishing pressure, interactions with hatchery fish, pesticide
exposure, and climate change.
So it is critical that we support efforts to restore and
maintain healthy salmon populations in the Pacific Northwest by
addressing all of these significant threats to salmon. And with
that, I look forward to hearing from our witnesses today and
learning more about this issue. I thank you.
[The prepared statement of Ms. Bordallo follows:]
Statement of The Honorable Madeleine Z. Bordallo, Ranking Member,
Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs
Thank you, Mr. Chairman. This morning's hearing on H.R. 946, the
Endangered Salmon Predation Prevention Act, focuses on an issue
important to Members in the Pacific Northwest. H.R. 946 would authorize
the Secretary of Commerce to issue permits enabling the states of
Washington and Oregon, and tribes that are members of the Columbia
River Inter-Tribal Fish Commission, to take lethal measures against sea
lions preying on endangered salmon throughout the Columbia River. The
bill would also waive the application of the National Environmental
Policy Act to the permit process. This would eliminate the requirement
that the Secretary consider the environmental impacts and alternatives,
as well as public input, to lethal action against the sea lions.
There already is a provision in the Marine Mammal Protection Act
that was included in 1994 to address salmon predation by sea lions.
Section 120 authorizes the Secretary to permit the intentional lethal
taking of sea lions and to date, 37 California sea lions have been
removed from the Bonneville Dam area.
H.R. 946 focuses on the impact of predation by California sea lions
on endangered salmon. According to the Army Corps of Engineers,
California sea lions have only consumed 1.4 percent of this year's
salmon run, which is the lowest percentage since 2003.
Meanwhile salmon populations battle a variety of other threats,
including hydropower development, habitat loss, fishing pressure,
interactions with hatchery fish, pesticide exposure, and climate
change.
It is critical that we support efforts to restore and maintain
healthy salmon populations in the Pacific Northwest, by addressing all
of these significant threats to salmon.
With that, I look forward to hearing from our witnesses today and
learning more about this issue, and I thank you.
______
Dr. Fleming. I thank the gentlelady, the Ranking Member. I
now recognize Chairman Doc Hastings for any opening statement
that he may have on this bill.
STATEMENT OF HON. DOC HASTINGS, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF WASHINGTON
Mr. Hastings. Thank you, Mr. Chairman, for holding this
hearing on this bill that is important to my area in the
Northwest, and before I begin, I would ask unanimous consent
that the statement of my colleague from Oregon, Mr. Walden,
appear in the record. He is a cosponsor of the bill.
Dr. Fleming. If there is no objection, it is so ordered.
[The prepared statement of Mr. Walden follows:]
Statement submitted for the record by The Honorable Greg Walden, a
Representative in Congress from the State of Oregon
Dear Chairman Fleming and Ranking Member Sablan:
I write in support of H.R. 946, the Endangered Salmon Predation
Prevention Act, and in appreciation of your commitment to moving this
bill through the Committee on Natural Resources. This is an important
step in ongoing efforts to reduce the predation of salmon listed on the
Endangered Species Act (ESA) in the Columbia River system.
As you know, the Endangered Salmon Predation Prevention Act would
authorize the states of Oregon and Washington and four Columbia River
treaty tribes, including the Confederated Tribes of Warm Springs
Reservation and the Confederated Tribes of the Umatilla Indian
Reservation in Oregon, to obtain permits for the lethal removal of
California sea lions caught eating salmon and steelhead in the Columbia
River near Bonneville Dam. The bill would accomplish this by amending
the Marine Mammal Protection Act of 1972 (MMPA) to allow the Secretary
of Commerce--more specifically, the National Marine Fisheries Service
(NMFS)--to issue permits to the eligible entities. Before utilizing a
lethal take permit, the permit holder must first determine that the sea
lions have preyed upon ESA-listed salmon and then exhaust all nonlethal
alternatives to deter predation. According to the Oregon Department of
Fish and Wildlife, the MMPA has helped the population of California sea
lions increase from 10,000 in the 1950s to 300,000, a level that is
near the highest sustainable level.
In 2005 and 2006, I joined Congressmen Brian Baird (D-WA) and Norm
Dicks (D-WA) in holding bipartisan regional forums, including one in
Pendleton, Ore., to explore ways to improve the survival of adult
salmon and steelhead in the Columbia River system. At the Pendleton
forum, the U.S. Army Corps of Engineers testified that the consumption
of fish by sea lions in the vicinity of Bonneville Dam had been on a
steady increase and that the sea lions had even figured out how to
enter the fish ladders at Bonneville Dam to gorge themselves on
endangered salmon and steelhead.
Since then, efforts to enact legislation to allow the lethal take
of sea lions found to be eating endangered salmon at the mouth of these
fish ladders have not been successful. As an original cosponsor of H.R.
946 and having a keen interest in improving the survival of this
important fish species, I welcome today's legislative hearing and look
forward to working with you to ensure that this bill is signed into
law. With Pacific Northwest ratepayers contributing nearly $1 billion
each year to protect salmon, this common-sense solution cannot wait.
______
Mr. Hastings. Since 1992, NOAA has listed 28 populations of
salmon, including 12 in the Columbia and Snake Rivers, as
either threatened or endangered under the Endangered Species
Act.
Northwest citizens have invested billions of dollars to
fund significant Federal, State, tribal, and local salmon
activities. These efforts include a plan now before a Federal
Judge, supported by the Administration, States, and several
upper and lower Columbia River tribes, that would ensure the
continued operation of several major Federal hydropower dams on
the Snake and Columbia Rivers.
Great progress has been made to recover salmon, as
witnessed by several consecutive years of near-record runs.
Yet, growing numbers of aggressive sea lions are consuming
endangered salmon.
The Army Corps of Engineers reported late last year that
the average number of sea lions observed at Bonneville Dam over
the past three years has increased by nearly 50 percent, from
83 to 123 per year.
Despite extensive efforts by Federal, State, and tribal
officials to discourage predation through aggressive nonlethal
hazing, the Corps recently estimated that sea lions consume
over 6,000 salmon alone.
In 1994, Congress added Section 120 to the Marine Mammal
Protection Act to allow lethal removal of sea lions that were
eating salmon at the Ballard Locks in Seattle. However,
extensive studies and attempts by States have demonstrated that
this authority as written has proven inadequate and cumbersome.
Last year, a NOAA 18-member task force, comprised of
Federal, State, and tribal scientists, concluded that current
efforts authorized under Section 120 had been ineffective at
controlling sea lions from preying on salmon.
Earlier this year, I applauded NOAA for defending its
approval to States to use lethal removal to control sea lions
that are eating alarming numbers of salmon on the Columbia
River.
Unfortunately, last month, yet another lawsuit blocked this
approval at a time when tens of thousands of salmon are
returning through Bonneville Dam. H.R. 946 and this hearing
today are designed to find a common-sense path forward to
protect our substantial investment in salmon recovery and
provide Federal, State, and tribal fish managers the tools
necessary to control sea lions.
This bipartisan legislation, similar to that which has been
introduced in prior Congresses, would provide temporary
expedited authorities for States and tribes to manage sea lion
problems while States obtain longer-term authority through the
Marine Mammal Protection Act.
The bill recognizes the four lower Columbia River tribes,
as well as the States of Oregon and Washington, that should be
eligible to obtain permits to control these predatory sea
lions.
In addition, the proposal would require the Commerce
Secretary to report to Congress on possible amendments to the
Marine Mammal Protection Act to address conflicts between
marine mammals and fish species listed under ESA.
So again I want to thank the Subcommittee for this hearing,
and I look forward to hearing the testimony from our witnesses,
and with that, Mr. Chairman, thank you again for the courtesy,
and I yield back my time.
[The prepared statement of Mr. Hastings follows:]
Statement of The Honorable Doc Hastings, Chairman,
Committee on Natural Resources
Thank you, Chairman Fleming for holding this hearing on H.R. 946,
the Endangered Salmon Predation Prevention Act.
Since 1992, the National Oceanic and Atmospheric Administration
(NOAA) has listed 28 populations of salmon-including 12 in the Columbia
and Snake Rivers--as either threatened or endangered under the
Endangered Species Act.
Northwest citizens have invested billions of dollars to fund
significant federal, state, tribal and local salmon activities.
These efforts include a plan now before a federal judge, supported
by the Administration, states and several upper and lower Columbia
River tribes--that would ensure the continued operation of several
major federal hydropower darns on the Columbia and Snake Rivers.
Great progress has been made to recover salmon, as witnessed by
several consecutive years of record or near-record runs. Yet, growing
numbers of aggressive sea lions are consuming endangered salmon.
The Army Corps of Engineers reported late last year that the
average number of sea lions observed at Bonneville Dam over the past
three years increased by nearly 50%--from 83 to 124 per year.
Despite extensive efforts by federal, state, and tribal officials
to discourage predation through aggressive nonlethal hazing, the Corps'
recently estimated that sea lions consumed over 6,000 salmon last year.
alone.
In 1994, Congress added Section 120 to the MMPA to allow lethal
removal of sea lions that were eating salmon at the Ballard Locks of
Seattle. However, extensive studies and attempts by states have
demonstrated that this authority as written has proven inadequate and
cumbersome.
Last December, a NOAA 18-member task force, comprised of federal,
state and tribal scientists, concluded that current efforts authorized
under Section 120 have been ineffective at controlling sea lions from
preying on salmon.
Earlier this year, I applauded NOAA for defending its approval to
states to use lethal removal to control sea lions that are eating
alarming numbers of salmon on the Columbia River.
Unfortunately, last month, yet another lawsuit blocked this
approval at a time when tens of thousands of salmon were returning to
Bonneville Dam.
H.R. 946 and this hearing today are designed to find a common-sense
path forward to protect our substantial investment in salmon recovery
and provide federal, state, and tribal fish managers the tools
necessary to control sea lions.
This bipartisan legislation, similar to that introduced in prior
Congresses, would provide temporary expedited authority for states and
tribes to manage the sea lion problem while the states obtain longer-
term authority through the Marine Mammal Protection Act.
The bill recognizes that four lower Columbia River tribes, as well
as the states of Oregon and Washington, should be eligible to obtain
permits to control predatory sea lions.
In addition, the proposal would require the Commerce Secretary to
report to Congress on possible amendments to the Marine Mammal
Protection Act to address conflicts between marine mammals and fish
species listed under the ESA.
I again thank the Subcommittee for holding this hearing, and I look
forward to hearing from the states and tribes represented here today on
how this bipartisan bill might be further improved as it moves through
the legislative process.
______
Dr. Fleming. I thank the Chairman. The Chairman yields his
time back. We will now hear from our witnesses. Like all
witnesses, your written testimony will appear in full in the
hearing record.
So I ask that you keep your oral statements to five minutes
as outlined in our invitation letter to you, and under
Committee Rule 4[a]. Our microphones are not automatic, and so
please press the button when you are ready to begin.
I also want to explain how the timing lights work. When you
begin to speak, our Clerk will start the timer and the green
light will appear. After four minutes a yellow light will
appear, and at that time, you should begin to conclude your
statement, and at five minutes the red light will come on.
So obviously you get four minutes with a green light, and
one minute with a yellow, and then red, which means that you
need to write it up in a hurry.
So I will begin to welcome our witnesses today. First, we
have Mr. Eric Schwaab, Assistant Administrator for the National
Marine Fisheries Service, National Oceanic and Atmospheric
Administration.
[Pause.]
Dr. Fleming. OK. I am sorry. I had to get updated
information. Mr. James Lecky. Am I saying that right, sir?
Mr. Lecky. Yes.
Dr. Fleming. And I am not sure exactly what your position
is, but I assume that you are with the same organization, the
National Marine Fisheries Services, National Oceanic and
Atmospheric Administration.
Then Mr. Guy Norman, Southwest Regional Director,
Washington Department of Fish and Wildlife; Mr. Robin Brown,
Program Leader, Marine Mammal Research, Oregon Department of
Fish and Wildlife; Mr. Virgil Lewis, Tribal Council Member,
Yakama Nation. Am I saying that right, Yakama?
Mr. Lewis. Yakama.
Dr. Fleming. Yakama. OK. I knew that it didn't sound quite
right. Ms. Sharon B. Young, Marine Issues Field Director, The
Humane Society of the United States. OK. Mr. Lecky, you are now
recognized for five minutes, sir.
STATEMENT OF JAMES LECKY, DIRECTOR, OFFICE OF PROTECTED
RESOURCES, NATIONAL MARINE FISHERIES SERVICE
Mr. Lecky. Thank you. Good morning, Chairman Hastings, and
Chairman Fleming, and Members of the Subcommittee. I am Jim
Lecky, and I am the Director of the Office of Protected
Resources for NOAA's National Marine Fisheries Service. Thank
you for the opportunity to testify today on H.R. 946, and the
issues of increasing pinniped predation on threatened and
endangered salmon in the Columbia River.
NOAA protects seals and sea lions along the West Coast
under the Marine Mammal Protection Act, and promotes recovery
of threatened and endangered salmon and steelhead under the
Endangered Species Act.
NMFS has experienced challenges in reconciling these duties
and welcomes guidance on how to address the effects of
predation by a robust population of sea lions on the
conservation of threatened and endangered populations of salmon
and steelhead.
This morning I will described these challenges, and our
experience in addressing the conflict, using existing
authorities, and provide NMFS's view on H.R. 946. Under the
Marine Mammal Protection Act, most seal and seal lion
populations on the West Coast have recovered to healthy levels.
Currently, California sea lion numbers exceed 238,000
individuals, and the population is believed to be at or near
carrying capacity. At the same time many West Coast salmon
populations have undergone substantial declines as a result of
habitat loss and degradation from the development of land and
water resources, overfishing, and unsustainable hatchery
practices.
Out of 52 population groups of salmon spawning in
California, Idaho, and Washington, 28 are listed as threatened
under the Endangered Species Act, threatened or endangered
under the Endangered Species Act.
NOAA has worked with its partners for nearly 20 years at
considerable cost to address the factors that have contributed
to the decline of these important resources. We have also
worked with States and others to explore not only nonlethal
methods of deterring pinnipeds from stealing catch, damaging
fishing gear, damaging private and public property, and preying
on listed salmon, and for the most part these efforts have
yielded limited success.
In November of 2006, Oregon, Washington, and Idaho applied
for authority pursuant to Section 120 of the Marine Mammal
Protection Act to lethally remove California sea lions at
Bonneville Dam to protect the Columbia River's salmonids.
In response, NMFS convened a pinniped fishing interaction
task force, which recommended approval of the application and
NMFS completed the authorization process in time for the 2008
Spring Chinook salmon run under that authority.
Under that authority, 37 individually identified California
sea lions have been removed to permanent captivity or humanely
killed. In 2008, the Humane Society filed a complaint
contending that in issuing the authorization that NMFS violated
the Marine Mammal Protection Act, the National Environmental
Policy Act, and the Administrative Procedures Act, and the
decision authorizing lethal removal was vacated and remanded to
NMFS for further explanation of its finding that sea lion
predation was having a significant negative impact on the
recovery of salmonids in the Columbia River.
On May 12 of this year, NMFS reissued its lethal removal
authorizations to the States, and on May 19, the Humane Society
again filed a complaint. In addition to the litigation
challenges, some of the provisions of Section 120 make NMFS and
its ability to use that authority difficult.
For example, the requirements to identify individual sea
lions foraging on salmon prior to taking action is extremely
difficult given the enormity of the Columbia River. We
understand the behavior or sea lions well enough to know that
when they are in the vicinity of Bonneville Dam, they are there
to take advantage of the salmon resource.
With respect to H.R. 946, we are pleased that it recognizes
the limitation of nonlethal methods to protect salmonids from
sea lion predation, and that it acknowledges the enormous
investment that many agencies, organizations, and the public
have made to the recovery of Columbia River salmonids, and it
recognizes the role for the Columbia River Intertribal Fish
Commission and its tribes.
However, NMFS is troubled by some of the provisions in the
bill. For example, the bill requiring NMFS to make
determinations that nonlethal measures are ineffective, and
then require each permit holder to duplicate that determination
for each sea lion prior to removal. It is not clear why such
duplication is necessary.
And we think that NEPA can add value to the process and
suggest that time be added to the process for NEPA analysis.
Also, coordinating the activity of permit holders would be
challenging, in that multiple permits may be issued to six
different eligible entities, but each entity may use only one
permit during any particular two week period. Tracking such a
system would be difficult to implement.
In conclusion, NMFS believes that specifically and narrowly
tailored changes to the Marine Mammal Protection Act that
reflects sound principles of wildlife management, and allow for
both marine mammal conservation and salmonid recovery.
NMFS recommends that the Subcommittee consider a
comprehensive approach to the use of lethal measures to manage
pinnipeds, just as they are allowed for many high profile
species of terrestrial animals.
Thank you again for the opportunity to testify, and we
would be pleased to work with the Committee and staff to refine
a bill for further consideration, and I would be happy to
answer any of your questions.
[The prepared statement of Mr. Lecky follows:]
Statement of James Lecky, Director, Office of Protected Resources,
National Marine Fisheries Service, National Oceanic and Atmospheric
Administration, U.S. Department of Commerce
Introduction
Good morning, Chairmen Hastings and Fleming and members of the
Subcommittee. I am Jim Lecky, Director of the Office of Protected
Resources in the National Oceanic and Atmospheric Administration's
(NOAA) National Marine Fisheries Service (NMFS). Thank you for the
opportunity to present NOAA's views on California sea lion predation on
at-risk, threatened, or endangered salmon and steelhead and H.R. 946,
which would establish a temporary permitting procedure for allowing the
removal of California sea lions to protect salmonids in the Columbia
River. While I have been in my present position since 2004, I spent
nearly 30 years working for NOAA on marine mammal and endangered
species issues in our Southwest Region and am very familiar with
problems associated with increasing seal and sea lion populations,
including the ongoing predation of threatened and endangered salmonids
in the Columbia River and its tributaries.
NOAA is responsible for protecting most marine mammal populations
along the west coast under the Marine Mammal Protection Act (MMPA) and
for promoting the recovery of threatened and endangered species under
the Endangered Species Act (ESA), including listed salmon and steelhead
trout, collectively called salmonids. The MMPA and ESA are strong
conservation laws, but the MMPA does not provide flexible tools for
dealing with species whose populations have reached healthy levels and
that are creating conflicts with, among other things, conservation
efforts for ESA protected species. Therefore, NOAA appreciates the
Chairs' acknowledgment of the seriousness of this issue and the
opportunity to explore development of additional tools for efficient
and effective resolution of such conflicts.
In my remarks today, I will describe the ecological and management
context that currently exists, NOAA's previous experience in addressing
the conflict with increasing populations of pinnipeds under existing
authorities, and NOAA's comments on H.R. 946.
Ecological and Management Context
I am pleased to report that the MMPA has been successful at
recovering most stocks of seals and sea lions along the west coast to
optimum sustainable levels. California sea lion numbers have increased
from the few thousands in the 1920s to more than 238,000 today. An
analysis of pup counts in California through 2005 suggests the
population likely achieved its maximum net productivity level in 1997
and may currently be at or near its carrying capacity. Populations of
harbor seals and elephant seals are healthy and, in the Pacific
Northwest, while the Eastern stock of Steller sea lions is listed as
threatened under the Endangered Species Act, we have seen steady
improvements in it.
After breeding in southern California rookeries, male California
sea lions migrate north in search of food. Some of these animals feed
along the California coast while others disperse as far north as
Alaska. During winter and spring, more than 1,000 California sea lions
may be found near the mouth of the Columbia River. Some of these
animals make their way up the Columbia River to Bonneville Dam (nearly
150 miles upriver) feeding on spring smelt and salmonid runs. Some feed
on listed salmonids at Willamette Falls where there have been
aggressive interactions with recreational fishers targeting hatchery
fish.
In contrast to robust west coast seal and sea lion populations,
many west coast salmonid populations have declined from historic
levels. Of 52 recognized population groups of salmonids spawning in
California, Oregon, Idaho, and Washington, 28 are listed as threatened
or endangered under the Endangered Species Act, 13 of which spawn in
the Columbia River or its tributaries. These salmonid populations are
at risk because of multiple threats: habitat loss and degradation,
harmful hatchery practices, predation and competition, and harvest. All
threats must be addressed to recover listed salmonids in the Columbia
Basin. Our recovery approach has been to seek reductions in mortality
from all sources, with the goal of reducing overall mortality to the
point that each species can survive and recover.
Over the years, NOAA has worked diligently with states and others
to explore nonlethal methods for deterring pinnipeds from preying on
listed salmonids. Unfortunately, these efforts have yielded limited
success. Congress recognized the limits of nonlethal deterrence in
passing the MMPA amendments of 1994. These amendments included MMPA
section 120, which allows states to apply for authority to lethally
remove California sea lions or Pacific harbor seals to protect at-risk
salmonid populations. These amendments also required NMFS to prepare a
report to Congress describing the impacts of pinniped predation on the
recovery of threatened and endangered salmonids and more broadly on
coastal ecosystems of Washington, Oregon, and California. NMFS
completed the scientific investigation and submitted its report to
Congress in February 1999.
The report to Congress described the potential for pinniped impacts
on the decline or recovery of at-risk fish stocks in Washington,
Oregon, Idaho, and California and the expanding pinniped conflict with
human economic and recreational activity in the affected areas. As a
result of these findings, NMFS recommended that Congress amend the MMPA
to include a site-specific management regime including the use of
lethal and nonlethal removal of California sea lions and harbor seals.
It also suggested further investigation of nonlethal deterrence methods
and the collection of information needed to allow more informed
decision-making for appropriate conservation of pinnipeds and other
living marine resources.
NMFS has testified before this Subcommittee three times in support
of the recommendations of the 1999 report. Joe Scordino (retired,
Deputy Regional Administrator, NMFS/NWR) represented NMFS at a hearing
in Washington, D.C., in October 2001, and I represented NMFS at a field
hearing in San Diego, CA, in August 2003. In addition D. Robert Lohn
testified to this Subcommittee in 2007 on H.R. 1769, a bill similar to
H.R. 946 being discussed today.
Reducing Sea Lion Predation on Salmonids: History to Present
In addition to the 1994 Amendments allowing lethal removal of
pinnipeds (Section 120), the MMPA includes two potential alternatives
for authorizing lethal taking of marine mammals in response to marine
resource management challenges such as those I have described. Section
101 provides authority for the Secretary to waive the take moratorium
and adopt suitable regulations to permit taking by lethal methods,
through a formal rule-making process. Section 109 provides Secretarial
authority to transfer management authority to a state on its request. A
state receiving management authority for marine mammals from the
Secretary must have adopted a management plan that could include lethal
taking, approved by the Secretary prior to the transfer of management.
Congress adopted Section 120 as a more streamlined approach to dealing
with circumstances such as the one at Bonneville Dam.
Under section 120, NMFS has received two applications from states
to lethally remove California sea lions to protect at-risk salmonids.
In 1994, the State of Washington requested authority to remove selected
sea lions to protect a small winter-run steelhead population that
migrated into the Lake Washington drainage at the Ballard Locks in
Seattle, WA. NMFS and the States attempted to protect the steelhead run
using nonlethal deterrence and conducted predation monitoring
activities for nearly a decade prior to the 1994 amendments. The States
submitted an application under the new section and NMFS convened a
Pinniped-Fishery Interaction Task Force to consider the application.
Following Task Force recommendations, NMFS and the States continued a
number of nonlethal deterrence actions such as acoustic barriers, flow
modification, trap and hold, and trap and haul before March of 1996
when NMFS approved the States' request for lethal removal of five
specific animals. None of those animals was lethally removed but three
were relocated to Sea World of Orlando, FL, for permanent captivity and
public display. California sea lion predation events on steelhead
returning to Lake Washington subsided following the 1996 steelhead
return due to the removal of the worst offending animals, continued
implementation of a nonlethal deterrence strategy, and the collapse of
the steelhead run, which has not yet recovered. Over the past several
years, NMFS has received anecdotal reports of sea lion predation on
Chinook salmon at the Ballard Locks but there have been insufficient
resources available to implement systematic monitoring to quantify the
extent of the impacts to this ESA listed run.
In November 2006, the states of Oregon, Washington, and Idaho
applied to NMFS for authority to lethally remove California sea lions
at Bonneville Dam to protect threatened or endangered salmonids in the
Columbia River. The states' application noted that sea lion predation
on salmonids at the dam is a relatively recent phenomenon with only
occasional sightings of sea lions at or near the dam prior to 2000. In
2000, predation events began to increase and have been documented since
2002 when 30 California sea lions were identified feeding at the dam.
Between 2002 and 2006 the estimated California sea lion predation on
salmonids at the dam increased annually from just over 1000 to about
3000 fish.
In addition to reviewing the pinniped salmon conflict, the states'
application also described many other efforts, for which hundreds of
millions of dollars have been spent, to provide a comprehensive
recovery strategy for salmonids in the Columbia River basin. These
efforts include harvest reduction, hydroelectric system modification
and mitigation, habitat improvement, predator controls, and hatchery
reform.
After receiving the states' 2006 application, NMFS, as required by
section 120, provided notice of the states' application, convened a
Pinniped-Fishery Interaction Task Force, and complied with other
applicable laws (e.g., National Environmental Policy Act (NEPA) and
Endangered Species Act (ESA)). Due to the seasonal commitments of
potential Task Force members, various procedural requirements and
requisite environmental analyses, NMFS was not able to complete the
section 120 process in time for the 2007 spring Chinook salmon run. In
the fall of 2007, the Task Force recommended approval of the lethal
removal application, with a minority dissenting vote, and NMFS
completed the authorization process prior to the start of the 2008
spring Chinook salmon run.
Since then, the number of California sea lions at the dam has
averaged about 75 animals per year and they have been observed eating
an ever-increasing number of salmon below the dam, with an estimated
high of 5,000 salmon taken by California sea lions in 2010 (total
estimated predation by all pinnipeds at Bonneville Dam in 2010 was over
6,000 salmon). Although the percentage of the runs consumed annually
varies with run size, the estimated number of individual fish taken has
generally increased each year since 2005. I note that this estimate of
predation is based on documented predation events observed from the dam
structure. Thus, the 2010 mortality estimate attributable to California
sea lions at the dam is not an estimate of the total predation, but
observed predation, on salmonids by California sea lions in the
Columbia River. California sea lions have been reported feeding on
salmonids along the entire main stem of the Columbia River and in
several tributaries from its mouth to the Dalles Dam, 191 miles from
the ocean. However, predation rates have not been quantified except in
the area visible from Bonneville Dam and the estimate only represents
the observed area. Systematic observations of predation elsewhere in
lower Columbia River to identify the animals involved or to quantify
the impacts of predation have not been done. The lower Columbia River
up to the Dalles Dam is a huge area and systematic observation of the
entire area would be an extremely difficult and costly venture.
NMFS, the U.S. Army Corps of Engineers (which operates Bonneville
Dam), the states, and the Columbia River Intertribal Fish Commission
and their member Tribes have aggressively employed nonlethal deterrence
methods to protect salmonids near the dam since 2006. From March 2008
when the section 120 removal authorization was issued to the states
through 2010, 37 individually identified California sea lions were
removed to permanent captivity or humanely killed. Nevertheless,
predation continued to increase.
After the close of the 2010 season, NMFS reconvened the Task Force
to evaluate the effectiveness of the removal program and consider
information accumulated since the program's initiation. Following its
review, the Task Force concluded that the program had not been
sufficiently successful at reducing pinniped predation on salmonids and
made several recommendations to improve the effectiveness of the
removal program.
The section 120 process has proven litigious. After the issuance of
the removal authorization in 2008, the Humane Society of the United
States filed a complaint in the U.S. District Court in Oregon.
Plaintiffs contended that NMFS violated the MMPA, NEPA, and the
Administrative Procedure Act (APA) when it authorized the lethal
removal of individually identifiable California sea lions. In
particular, plaintiffs argued NMFS' decision was factually indefensible
and inconsistent with other agency decisions under NEPA and the ESA
involving salmon (specifically fishery harvest and hydropower
operations), and that NMFS failed to provide an adequate explanation
under the APA as to why sea lion predation was significant as defined
under the MMPA, whereas take by fisheries and hydropower operations was
insignificant as defined under other applicable laws (e.g., NEPA).
In November 2008, the district court upheld NMFS' lethal removal
authorization and NEPA analysis. Plaintiffs appealed and on November
23, 2010, the Ninth Circuit issued a partially favorable decision to
plaintiffs. The Ninth Circuit held, for purposes of the MMPA
authorization, that NMFS failed to provide a satisfactory explanation
concerning two main points: (1) the seemingly inconsistent findings
that sea lion predation is significant for purposes of the MMPA, but
similar or greater levels of take of the same salmonid populations by
other activities--such as fishery harvests in the Columbia River--are
not significant under NEPA; and (2) the agency's failure to explain
adequately what the court viewed as the agency's implicit finding that
a California sea lion predation rate of greater than 1% results in a
significant negative impact on the decline or recovery of salmonid
populations. Despite the adverse MMPA decision, the Ninth Circuit
upheld the NEPA analysis. The Ninth Circuit directed the district court
to vacate the decision authorizing lethal removal and remanded it 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.'' HSUS v. Locke, 626 F.3d 1040, 1053 (9th Cir.
2010).
On May 12, 2011, NMFS, having considered the available information
accumulated since 2008 and its previous effects analysis under NEPA and
the ESA, and following the appellate court's instruction, reissued its
lethal removal authorization. The terms and conditions of the current
authorization are virtually the same as those in the 2008
authorization.
The spring Chinook salmon run past Bonneville Dam began several
weeks late in 2011, but increased rapidly beginning April 25.
California sea lions also arrived at the dam later and in smaller
numbers than in recent years. Non-lethal deterrence measures were
implemented through most of the 2011 season. Predation numbers were
lower than the previous year for the first time since 2005. On May 18,
2011, following receipt of the re-issued authorization the States
successfully captured one of the individually identifiable California
sea lions that was authorized for removal and it was humanely killed.
NMFS' and the States' efforts to control California sea lion predation
at Bonneville Dam has once again been challenged by the Humane Society
of the United States. A lawsuit was filed on May 19, 2011, in the U.S.
District Court for the District of Columbia. Similar to the previous
litigation, the Humane Society asserts that NMFS, in issuing the
section 120 authorization, violated the MMPA, NEPA, and APA.
H.R. 946
Representative Hastings and his colleagues introduced H.R. 946 in
March 2011. This bill is a modified version of Representative Baird's
H.R. 1769 introduced in the 110th Congress and to H.R. 6241, introduced
in the 109th Congress. Several aspects of H.R. 946 are consistent with
our 1999 Report to Congress. The bill identifies and aims to address
the complicated and controversial wildlife management conflict we face
on the Columbia River today. It correctly recognizes: the limitations
of nonlethal methods to protect salmonids from sea lion predation; the
enormous investment that many agencies, organizations, and the public
have made to conserve and recover at-risk salmon and steelhead
populations in the Columbia River basin; and that the Columbia River
Intertribal Fish Commission and their member Tribes should be included
in addressing this conflict.
We appreciate the bill's attempts to streamline procedures
necessary to take action. Our goal is a delicate balance between
protecting marine mammals under the MMPA and recovering ESA-listed
salmonids. With that in mind, we are careful in how and when we take
action to lethally remove California sea lions to protect listed
salmonids. From experience, however, we note that we have faced
numerous challenges with the requirement regarding individual
identification of sea lions foraging on salmon. This requirement is
extremely difficult given the enormity of the Columbia River basin and
encumbers the ability to remove the animals and provide efficient and
effective protection for salmon. This requirement would also be
extremely difficult to meet if it is determined that broader action is
needed elsewhere in the Columbia River basin. We also do not support
the exemption from NEPA. We found the environmental review process
valuable when reaching our determination at Bonneville Dam and would
support legislative solutions that allow adequate time to complete an
environmental review. We would be happy to further discuss this and
potential solutions with the Committee at your convenience.
The bill would also require NMFS to make a determination that
nonlethal measures are ineffective--following a public review and
comment period--and then require each permit holder to duplicate that
determination for each sea lion prior to removal. It is not clear why
the permit holder determination is necessary when NMFS would have
already made such a determination. Indeed, NMFS has already made such a
determination in its 2008 section 120 decision documents regarding
California sea lions at Bonneville Dam.
The bill also requires NMFS to prepare a report to Congress on the
need for additional legislation. This requirement should be made
precatory, to respect the President's prerogatives under the
Recommendations Clause. As previously described, NMFS prepared such a
report in 1999. California sea lion predation on salmonids at
Bonneville Dam has become a significant problem since the report was
completed.
Besides the streamlining concerns noted above, there are a few
operational challenges in the bill and some provisions are confusing.
Coordinating the activity of permit holders also seems difficult in
that multiple permits may be issued to six different ``eligible
entities'' but each entity may use only one permit during any 2-week
period. Tracking such a system would be difficult.
Conclusion
The MMPA has provided strong protections for all marine mammals,
regardless of their population status, for more than 30 years. The
Administration believes that in some cases lethal removal may be
necessary to manage pinniped-fishery conflicts, and that such
management is not inconsistent with the purposes and policies of the
Act. We appreciate this bill's recognition of that need and stand ready
to work with the Committee to address our concerns with the bill.
______
Dr. Fleming. Thank you, Mr. Lecky, and that was perfect
timing. Next is Mr. Brown, Program Leader for Marine Mammal
Research, Oregon Department of Fish and Wildlife. You have five
minutes, sir.
STATEMENT OF ROBIN BROWN, PROGRAM LEADER, MARINE MAMMAL
RESEARCH, OREGON DEPARTMENT OF FISH AND WILDLIFE
Mr. Brown. Thank you, Mr. Chairman, and Members of the
Subcommittee. My name is Robin Brown. I am the Program Leader
for Marine Mammal Research and Management with the State of
Oregon Department of Fish and Wildlife. I have been working in
the area of seal and sea lion population biology, food habits,
and interaction with fisheries and fish resources for 35 years.
We thank you for your interest in this issue, and we also
thank the NOAA Fisheries Service for working closely with the
States to evaluate and address the resource conflicts that
arise between at-risk salmon and steelhead populations, and
abundant seal and sea lion populations.
Over the past four years, we have encountered a number of
problems and roadblocks with implementation of our Section 120
authority, the tool that was created by Congress in 1994, and
we recognize the efforts of Representative Hastings and this
Subcommittee in drafting H.R. 946 in response to the current
limitations of Section 120.
Hopefully the comments that I can provide for you here and
in my written testimony will help you understand the problems
that we have experienced. First, a little background on
California sea lions. As has been stated the population is
extremely healthy and is at or near historic population levels.
There is absolutely no risk that the removal of small
numbers of sea lions from the population will have any negative
effect on the robust status of the population as a whole.
Archeological and anthropological evidence demonstrates
that the California sea lions were not historically found in
the Columbia River. Therefore, the argument that the California
sea lions have always occurred in this area, and are only
exhibiting historical use of traditional foraging areas is not
true.
Only over the past 10 years have more than just two or
three California sea lions been observing feeding below the
Bonneville Dam, 145 miles from the Pacific Ocean. We believe
that the intent of Congress in adding Section 120 to the MMPA,
Marine Mammal Protection Act, was to favor at-risk salmon and
steelhead stocks over abundant pinniped populations.
This point was made in the original preamble, title, and
findings of Section 120. We have made important initial
progress at reducing the abundance of habitual predatory
California sea lions, taking salmon and steelhead at Bonneville
Dam.
However, during this past 2011 field season, we lost the
opportunity to continue that downward trend of predatory sea
lion numbers in the Columbia River. A major constraint with
Section 120 involves the vague definition of what is
significant in terms of losses of ESA listed salmonids to
predatory pinnipeds.
At present, resource managers are not permitted to take
proactive measures to prevent smaller manageable problems from
growing into major ones. This is a classic Catch 22 situation.
The problem cannot be addressed until it is very large, and
once it has reached that level, it is very difficult to
resolve. Had we been able to act in 2002 by removing just a few
predatory California sea lions each year as they began feeding
below Bonneville Dam, far more ESA listed salmon would have
been saved, and far fewer sea lions would have had to have been
removed, and something that all of us would prefer to see.
The costs involved with the protracted management process
currently required under Section 120, including responding to
legal challenges at the State and Federal level, are immense,
and could be greatly reduced with the appropriate modifications
to the current law.
Our esteemed colleague here, Sharon Young, will argue that
Section 120 was meant to be used only in situations involving
small numbers of predatory sea lions, but there is the Catch-22
dilemma again.
Section 120 as currently written cannot be used when small
numbers of predators are involved because in nearly all cases
demonstrating a significant negative impact to the salmon and
steelhead would not be possible.
Currently, we are seeing similar problems develop in other
areas in the Columbia River Basin, including the Willamette
River, a major tributary to the Columbia. If we were able to
remove small numbers of animals there ahead of time, we could
avoid a very large problem in the future.
Another overly restrictive and unnecessary measure in
Section 120 is the requirement to know predatory pinnipeds as
individuals. We know from decades of research that these
animals repeat individual feeding behaviors year after year.
Of the quarter-million in the United States population, our
research demonstrates that only about 200 to 300 individual
California sea lions, no more than one percent of the entire
population, have ever been seen up-river foraging for salmon
and steelhead.
Clearly, this is a group of individual animals that are
exhibiting a unique feeding behavior. Currently, the option of
Section 120 is not geographically limited to the Columbia
Basin. This would be an important measure to retain since we
have seen problems arising in other areas.
However, Section 120 currently addresses only ESA listed
salmon, and we are seeing significant problems with other fish
resources and sea lion predation. We feel that the opportunity
to use Section 120 should be expanded to other fishery
resources that are at risk due to pinniped predation. Thank you
very much for the time, and we are grateful for the work of the
Subcommittee on this important issue to us.
[The prepared statement of Mr. Brown follows:]
Statement of Mr. Robin F. Brown, Program Leader, Marine Mammal Research
and Management, Oregon Department of Fish and Wildlife, State of Oregon
Introduction
I am Robin Brown, Program Leader for Marine Mammal Research and
Management with the Oregon Department of Fish and Wildlife. I have been
working as a professional biologist in the area of seal and sea lion
population biology for 35 years and have extensive experience in the
area of seal and sea lion (pinnipeds) food habits and the interactions
of these animals with fish resources, and with sport and commercial
fisheries.
I thank the chair and the members of this committee for their
interest in addressing the conflicts that often arise between healthy
and robust pinniped populations and important, at-risk fish resources
currently at low abundance levels. We appreciate the opportunity to
provide these written comments on H.R. 946 and to present oral comments
at the hearing on June 14, 2011.
I also thank the NOAA Fisheries Service for working closely with
the state fish and wildlife management agencies to evaluate and address
these resource conflicts. We have all come to recognize the
contradictions that sometimes arise between efforts to protect and
recover salmonid species listed under the Endangered Species Act (ESA),
and the management of robust and healthy pinniped populations protected
under the Marine Mammal Protection Act (MMPA). Resolving these issues
is a critical effort that will contribute to the recovery of ESA-listed
salmonids and other valuable fish resources in the Pacific Northwest.
All contributions to fish population recovery are important, no matter
how small, in order to achieve success.
In 2008, under Section 120 of the MMPA, NOAA Fisheries granted
authority to the States of Oregon and Washington to lethally remove
predatory California sea lions that are having significant negative
impacts on threatened and endangered salmonid populations in the
Columbia River Basin. Over the past four years, during the application
of the Section 120 authority, we have encountered a number of problems
and roadblocks that have seriously limited our ability to successfully
implement this management tool. I will focus the comments in my
testimony before this committee on those problems.
Background: California Sea Lions in the Columbia River
Contrary to the statements of many, California sea lions are not
endemic to the Columbia River. Archeological and anthropological
evidence demonstrates that California sea lions were not historically
found in the lower Columbia River. Observations of this species
foraging in the Columbia River have been common only over the past 40
years as a result of population growth following implementation of the
MMPA in 1972. Therefore, the argument that California sea lions have
always occurred in the Columbia River and are only exhibiting the
historic use of traditional foraging areas is a false statement. These
animals are quick to learn and highly adaptable. As such they have
found new areas to feed in recent years and the Columbia River below
Bonneville Dam is one of those relatively new feeding areas. Only over
the past ten years have more than just two or three California sea
lions been observed feeding below Bonneville Dam, 145 miles up the
Columbia River from the Pacific Ocean.
MMPA Section 120 Authority for Lethal Removal of Predatory Pinnipeds
We believe that the addition of Sec 120 to the MMPA in 1994 was the
first attempt by Congress to provide the States with a new management
option for reducing pinniped predation on ESA-listed salmonid
populations, and that the intent of Congress was to favor at-risk
salmonid stocks over abundant pinniped populations. This point was made
clear in the Preamble and in the Title and Findings stated by Congress
when developing the Section 120 language in 1994.
However, in attempting to implement the congressional intent of
managing in favor of the species at greatest risk, the States and NOAA
Fisheries Service have encountered significant roadblocks to the
successful use of Section 120. We need the help of Congress to amend
the MMPA to resolve the problems encountered by state and federal
resource management agencies while attempting to use Section 120 to
successfully manage the problems of abundant, non-listed pinnipeds
preying on populations of threatened and endangered salmonid
populations.
We recognize that the effort of Representative Hastings and this
committee in drafting HR 946 is in response to the limitations of Sec
120 as currently written, and that HR 946 is intended to provide a more
functional and effective option for management agencies that are
attempting to deal with these resource conflicts. We certainly
appreciate your work in this area.
While, under the current Section 120 authority, we have made
important initial progress at reducing the abundance of habitual
predatory California sea lions taking salmon and steelhead at
Bonneville Dam, a number of problems have arisen that have limited our
success. The major issues we have encountered are described below.
The repeated legal challenges of the Section 120 authority issued
by NOAA Fisheries to the States has restricted our ability to remove
predatory California sea lions in a timely manner. During this past
2011 spring field season, we missed the opportunity to remove an
additional 15-20 sea lions. This was particularly troublesome since the
number of habitual predators had been noticeably reduced by removals
made during the previous three years, and California sea lion numbers
at Bonneville Dam this year were consistently below recent averages. We
lost the ability to continue that downward trend in predators by not
having the ability to remove predators this year.
The Term ``Significant'' in the Current Section 120 Language
A major problem with Section 120, as currently written, involves
the vague definition of what is ``significant'' in terms of loses of
ESA-listed salmonids to predatory pinnipeds. At present, resources
managers are not permitted to take proactive measures to prevent
smaller, manageable problems from growing into major ones. Section 120
requires managers to wait until the problem of predation is very large
and nearly unmanageable before a Section 120 removal authority can be
issued. This is a classic ``Catch-22'' situation. The problem can not
be addressed until it is ``significant'', and once it has reached that
level, it is very difficult to resolve. Had the States been able to act
in 2002 by removing just a few predatory California sea lions each year
as they began feeding below Bonneville Dam, far more ESA-listed
salmonids would have been saved and far fewer sea lions would have had
to be removed, something all of us would prefer. The costs involved
with the protracted management process currently required under Section
120, including responding to legal challenges, are immense and could be
greatly reduced with appropriate modifications to the current law.
Some will argue that Section 120 was meant to be used only in
situations involving small numbers of predatory sea lions. But there is
the ``Catch-22'' dilemma. Section 120 as currently written can not be
used when small numbers of predators are involved because in nearly all
cases, demonstrating a ``significant'' negative impact to the salmonids
would not be possible.
The States feel that Congress added Section 120 to the MMPA to deal
with just the type of problem we have at Bonneville Dam, and that is to
protect at-risk, ESA-listed salmonids from abundant predatory
pinnipeds. Currently, we are seeing similar problems developing in
other locations in the Columbia River Basin, including on the
Willamette River, a major tributary to the Columbia. At this location
we have a small, but growing number of predatory sea lions consuming
salmonids, including ESA-listed stocks. If we were able to remove a
small number of predators now, we could avoid a very large problem in
the future. But again, Section 120 will not let us be proactive, but
instead we must wait until the problem is very large and becomes
difficult and very costly to manage, resulting in the death of more
salmonids and more sea lions than is desired or necessary to resolve
the problem.
We feel that waiting to document ``a significant negative impact''
as required in the current Section 120 language is an inappropriate
approach to determining that predatory pinnipeds will negatively impact
ESA-listed salmonid stocks. By now we know from experience that when a
small number of California sea lions find a new foraging area and begin
consuming salmonids, resource managers should have the option to take
proactive measures to avoid the development of a large and unmanageable
situation. By doing so we can minimize both the number of salmonids
lost to predation and the number of pinnipeds that must be removed to
save those fish. In addition, the total cost of such a program would be
far less than that required under the current Section 120 process.
The Identification of ``Individual'' Predatory Sea Lions
Another unnecessary restriction in Section 120 at this time is the
requirement to know predatory pinnipeds as individual animals. We know
from decades of research that individual sea lions learn and repeat
specific feeding behaviors at specific locations at specific times of
the year. We have documented this through capture and marking programs,
through use of satellite-linked telemetry to track foraging
individuals, and by many thousands of hours of direct observations of
foraging sea lions at many locations. The U.S. California sea lion
population is estimated at nearly 250,000 animals. The species is very
healthy, in robust condition, and is likely at or above historical
population levels. Yet of those 250,000 animals, our marking studies
document that only about 3,000 California sea lions have ever occurred
in the lower Columbia River estuary within just 10 miles of the ocean.
These same studies demonstrate that, of the more than 1300 California
sea lions that have been branded in the estuary, less than 10% have
ever been observed at upriver areas foraging for salmonids. As a
result, there are probably no more than 200-300 individual California
sea lions, or no more than 1% of the entire population, that ever
travel up the Columbia River in search of salmon and steelhead.
Ten years of direct observations at Bonneville Dam have shown that
some 100-200 individual California sea lions have been observed at this
location 145 miles from the ocean, and the vast majority of those
animals have been seen there consuming salmonids over many years.
Clearly this is a group of individual animals that has learned this
feeding behavior and repeats it year after year. The remaining 99% of
the population, in all likelihood, has never entered the Columbia River
and prefers to forage in the near-shore ocean. The sea lions that
forage in the Columbia River over 100 miles from the ocean are
individual animals exhibiting a specific and repeated foraging
behavior. They are individual animals, exhibiting feeding behaviors
completely unlike the overwhelming majority of the population.
Section 120 and Other Important Fish Resources
Currently the option to apply for Section 120 removal authority for
predatory pinnipeds is not geographically limited to the Columbia River
Basin. This is an important option to retain in the current law since
we have seen the potential for similar predation problems to develop at
other locations in the Pacific Northwest. However, Section 120
currently addresses only pinniped predation on ESA-listed salmonids.
Recently we have documented significant problems of pinniped predation
on important fish resources other than salmonids that have the
potential to severely impact fish stocks currently at low levels of
abundance. A primary example of this concern is the predation by
California sea lions and, more importantly, Steller sea lions on White
Sturgeon in the Columbia River. Over the past ten years many thousands
of these fish have been killed by pinnipeds in the lower Columbia River
and more are being taken each year. We feel the Section 120 option for
lethal removal of predatory pinnipeds should be broadened to include
not only ESA-listed fish, but also those fish determined by federal and
state resource management agencies to be a great risk due to increasing
pinniped predation.
Closing Comments
We are grateful for the work NOAA Fisheries has done to issue the
current Section 120 authority to the States for removal of predatory
California sea lions taking ESA-listed salmonids in the Columbia River.
We believe it is important to retain this authority and will work
closely with NOAA Fisheries to insure that it remains available as a
management tool.
Finally, we greatly appreciate the work of the House Natural
Resource Committee and that of our Northwest Congressional
representatives aimed at addressing the problems of abundant pinnipeds
negatively impacting ESA-listed salmonids and other important cultural
and commercial fish resources.
______
Dr. Fleming. Thank you, Mr. Brown. Next, we have Mr.
Norman. You have five minutes, sir.
STATEMENT OF GUY R. NORMAN, SOUTHWEST REGIONAL DIRECTOR,
WASHINGTON DEPARTMENT OF FISH AND WILDLIFE
Mr. Norman. Thank you, Mr. Chairman, and Members of the
Committee, I am Guy Norman, and I am the Regional Director for
the Washington State Department of Fish and Wildlife. I
appreciate the opportunity to speak with you today regarding
the importance of salmon to the people of the Northwest, and
the expected consequences to salmon recovery efforts if we are
unable to manage increasing sea lion predation of Columbia
River salmon.
Now, the decline in wild salmon is not due to any one
factor, but a cumulative effect of increased mortality
throughout the salmon life cycle. In response, there has been
an extraordinary and collaborative effort in the Northwest by
the public, local governments, State and Federal agencies, and
the tribes to recover salmon by addressing all manageable
sources of mortality.
For example, habitat is being improved for salmon through
changes in land use, local dam operations, water access, and
millions of dollars are being invested in habitat restoration
projects.
The Federal dam operators are now investing hundreds of
millions of dollars annually through dam operation changes, and
other recovery actions to support salmon. Fisheries have been
reduced to meet the needs of endangered salmon with significant
costs to Northwest communities and cultural consequences to
Columbia River tribes.
Hatchery operators are investing changes to ensure hatchery
support recovery while they continue to provide salmon for
fisheries. Now, predation by some natural predators has
increased dramatically in the Columbia Basin in recent years.
This is partly due to changing habitat, but also due to the
success of protection measures, including the Marine Mammal
Protection Act with regard to sea lions. In circumstances where
the predation is now out of balance and growing, it cannot be
ignored in a comprehensive recovery strategy.
Recovery plans list increasing sea lion predation as one of
the highest limiting factors in the estuary portion of the
salmon's migration route. There are 32 separate wild chinook
populations at various levels of extinction risk that are
intercepted by these sea lions in the spring in the Columbia
River.
In contrast, both sport and commercial fisheries in these
same waters are required to keep marked hatchery fish, and
release wild salmon unharmed. Tribal fisheries are also limited
by their status of wildlife fish, and often reduced to levels
below their minimal cultural and subsistence needs.
The region cannot afford to allow sea lion predation to
continue to increase, or it would effectively cancel out other
costly recovery actions. The idea is to reduce predation, and
not eliminate it, which is consistent with the approach in
managing other sources of human impact to the salmon.
Now, since we began addressing California sea lion
predation a few years ago, a new sea lion problem has emerged
even more recently with increasing numbers of stellar sea lions
in the Columbia River.
The stellar sea lions are targeting sturgeon before the
spring salmon arrive, and biologists are now projecting over
10,000 sturgeon will be consumed by sea lions this year alone
in an increasing trend.
There is currently no provision in Section 120 to manage
sea lion predation on a fishery resource other than listed
salmon and steelhead. Now, the Section 120 requirement that an
individual sea lion be identified as causing a significant
effect on listed salmon or steelhead creates additional work
and expense, limits the area that can be managed, and has been
the focus of legal challenges.
However, we do appreciate the current authority under
Section 120, and we will assist the National Marine and Fishery
Service in defending it. It is important to maintain this
authority to provide some level of relief and hopefully prevent
the problem from getting worse while legislation is being
considered.
We appreciate the work of Natural Resources Committee
Chairman Doc Hastings, and Representative Walden, in drafting
H.R. 946. I want to thank Chairman Fleming for the opportunity
to speak to this Subcommittee today. I look forward to the
development of this legislation. Thank you very much.
[The prepared statement of Mr. Norman follows:]
Statement of Mr. Guy R. Norman, Regional Director,
Washington Department of Fish and Wildlife, State of Washington
Introduction
I am Guy Norman, Southwest Washington Regional Director for the
Washington State Department of Fish and Wildlife (WDFW). I oversee
agency policy in Southwest Washington, including management of natural
resources in the lower Columbia basin. I I have been involved in
Columbia River salmon management for over 30 years, including
participation in collaborative inter-governmental and public processes
focused on recovering Columbia basin fishery resources.
The WDFW appreciates the opportunity to present the following
written testimony on H.R. 946 to the Chair and members of this
Subcommittee regarding sea lion predation on threatened and endangered
salmon and steelhead of the Columbia River. The sea lion predation is a
serious and growing concern and the magnitude of the impact to salmon
has the potential to void other major investments the region is making
to restore these fishery resources.
WDFW serves Washington citizens by protecting, restoring and
enhancing fish and wildlife and their habitats, while providing
sustainable and wildlife-related recreational and commercial
opportunity. We hold this public trust in high esteem and strive to
meet these challenges that put our focus on fish and wildlife
sustainability to the test. We understand that without abundant
populations of fish and wildlife, the quality of life in the Northwest
and economies that depend on these natural resources will continue to
be seriously compromised.
Columbia Basin Salmon Decline and Recovery Efforts
Northwest states, federal agencies, and tribes have been involved
in efforts to restore wild salmon and steelhead populations in the
Columbia basin for several decades. Washington has worked cooperatively
with Oregon, Idaho, and the Columbia River Treaty Indian tribes for
over 40 years to manage fisheries and to rebuild salmon populations
through a series of management agreements. However, due to a
combination of factors, most Columbia River basin wild salmon and
steelhead populations have declined to a level where they are listed
under the Endangered Species Act (ESA) as threatened or endangered.
This decline is not associated with just one factor, but a cumulative
effect of increased mortality throughout the salmon life cycle. From
their beginning as juveniles in a stream, to their migration through
the Columbia River, to their ocean residence, and return to the stream
of origin as adults to spawn, the Columbia River salmon are subjected
to various sources of mortality.
In response to the endangered or threatened status of many wild
salmon populations, there has been an extraordinary and unprecedented
cooperative effort in the Columbia River region to protect and recover
salmon and steelhead. ESA-guided recovery plans have been developed and
implementation is underway in every watershed; to restore important
habitat, improve dam passage survival, re-tool hatchery programs to
assist wild populations, and closing or reshaping fisheries to focus on
selectively harvesting healthy hatchery fish. These are comprehensive
recovery plans that identify and provide an implementation strategy to
reduce all sources of mortality throughout the salmon's life cycle.
Examples of salmon recovery commitments include:
1. Habitat--Local area watershed recovery boards have been
established and funded for every region (or domain) in which
ESA-listed salmon and steelhead populations originate. These
recovery boards have been charged with developing action plans
aimed at recovery of local salmon populations. These board
members include representatives of local county and city
governments, tribes, state and federal agencies, and local
citizens. The recovery boards take inventory of the primary
limiting factors and develop a corresponding suite of actions
needed to remedy those factors. The action plans cover changes
in land use, water access, and restoration of local habitat,
local utility dam operations, as well as changes in salmon
hatchery practices and restricted or closed fisheries. There is
also an established Columbia River Estuary Partnership that
consists of state, federal and tribal representatives and
includes active involvement of local habitat restoration-
focused environmental organizations. Estuary recovery actions
address habitat restoration, water flow, and predation in the
lower 145 miles of the Columbia River in which all listed
populations pass through on the way to and from the ocean. The
recovery plans include reduction of excessive bird, fish, and
marine mammal predation as a key component of a comprehensive
recovery strategy.
2. Hydropower--The Federal Columbia River Power System (FCRPS)
is operated to benefit the citizens of the Northwest through
flood control and generated clean energy. Operation of the
system also includes a legal obligation to operate in a manner
that mitigates the effects of the Columbia River federal hydro-
system so as to not jeopardize the continued existence of
endangered and threatened salmon and steelhead populations. A
collaborative process led to the most recent plan for salmon
protection and recovery in 2008 that commits the federal power
system operators to invest hundreds of millions of dollars to
support both operational changes to improve fish passage
through the hydro-system as well as funding support for other
important actions involving habitat restoration, hatchery
reform, fishery management, and reducing predation by fish,
birds, and marine mammals. This mitigation commitment provides
much of the funding for the actions developed in the local ESA
recovery plans.
3. Harvest--Fisheries that effect Columbia River salmon
populations have been progressively reduced over the past
several decades in response to the declining salmon
populations. The states and tribes have implemented actions
through management agreements to ensure fisheries are operated
in a manner that protects the weaker salmon populations while
ensuring federal court orders that require salmon harvest to be
shared equitably between treaty Indian and non-Indian citizens
are upheld. Formal actions include International Agreements
through the Pacific Salmon Treaty with Canada as well as U.S.
v. Oregon court ordered agreements for Columbia River fisheries
that include ESA provisions to ensure that Columbia River
harvest does not jeopardize wild salmon populations. These
harvest actions have greatly reduced fisheries from past levels
with significant economic consequences to Northwest communities
that rely on fisheries as well as economic and cultural effects
on the Columbia River tribes. State managers, with federal
assistance, are further developing selective fishery practices
to enable better fishery access to hatchery-produced fish while
avoiding or minimizing impacts to wild fish.
4. Hatcheries--The federal, state, and tribal managers in the
Columbia basin have been and continue to develop and implement
operational plans for Columbia River salmon hatcheries to
ensure that they are operated in a way that supports wild
salmon recovery while continuing to provide hatchery fish to
support Pacific Ocean and Columbia River fisheries and the
economies that depend on these fisheries. A federally supported
process included a recent basin-wide inventory by a panel of
scientists called the Hatchery Scientific Review Group (HSRG).
The HSRG has provided a set of recommendations for operation of
each Columbia Basin hatchery consistent with wild fish
recovery. The agencies and tribes are cooperatively addressing
hatchery management measures in the basin and the federal power
system agencies have committed to investing in hatchery reform
and monitoring as part of their support of basin-wide salmon
recovery efforts.
5. Predation--The effects of certain natural predators of
salmon in the basin has increased dramatically from historical
levels. This is partly due to changing habitat more appealing
to certain fish and birds and partly due to increased numbers
of predators due to various protection measures, including the
Marine Mammal Protection Act (MMPA). Although the predation of
salmon by birds, fish, and marine mammals may be natural, there
are specific circumstances in the Columbia basin where the
predation has grown to a level where it is significantly out of
balance with historic levels and cannot be ignored in a
comprehensive recovery strategy. Because of this reality, the
hydropower operators fund large programs to reduce northern
pike minnow fish predation on juvenile salmon by reducing their
numbers through a bounty reward program and to re-locate record
numbers of Caspian terns to alternative bird colony locations
to reduce the impact on migrating salmon juveniles. The states
were authorized and funded to remove certain identifiable
predatory California sea lions at Bonneville Dam beginning in
2008 and have made some progress to date. However, the
conditions associated with the current requirements of Section
120 of the MMPA are difficult to implement and legal challenges
have slowed the progress towards reducing impacts to salmon.
The habitat, hydro, harvest, hatchery, and predation recovery
actions represent a major monetary and social investment in the region,
underscoring the importance of maintaining salmon populations to the
citizens and governments of the four states and tribes that reside in
the Columbia basin. The people of the Northwest have supported
restoration efforts, and are willing to bear the costs, because of the
importance of salmon to our heritage, the cultural value to Native
Americans, and the economic value of salmon to our communities. State
and federal agencies, tribal and local governments, and the public,
have developed these salmon recovery plans through an extraordinary
collaborative effort and are committed to rebuild these depleted salmon
populations.
Sea Lion Predation and the Future of ESA Listed Salmon Populations
There are thirteen separate Columbia River salmon and steelhead
population segments that were listed under the ESA during 1991-2005.
There are multiple individual populations within each population
segment that are at various levels of extinction risk. The
aforementioned recovery plans and associated actions are designed to
reduce extinction risk for each individual population and provide the
conditions for recovery of each of the thirteen population segments.
In order to ensure the survival and recovery of the listed salmon
it is important to have protection and recovery actions that are
tailored to the needs of each individual population. To accomplish
this, actions are planned and implemented in each watershed where these
unique populations reside. Additional survival improvement actions are
implemented in places the various populations share as they all migrate
downstream through the Columbia River to the ocean as juveniles and
back upstream through the Columbia River and into various tributaries
to spawn as adults. The efforts to improve survival in the local
watersheds can include significant land use changes effecting urban and
rural development, logging, agriculture, dam operations, reductions in
hatchery fish produced, and closure of local fisheries. These local
efforts, and associated costs, cannot alone adequately protect and
restore salmon. The local actions must be combined with additional
actions outside of the watershed, including predation reduction, to
achieve a cumulative increased survival effect. Each incremental
survival improvement during the salmon's life experience becomes an
essential component of recovery.
The National Marine Fisheries Service (NMFS) has endorsed recovery
plans that list predation (including sea lion predation) as one of the
highest limiting factors in the estuary portion of the salmon migration
route.
There has been a significant change in behavior of an increasing
number of male California sea lions during the past nine years. Instead
of concentrating forage activity in the ocean or in the lower estuary
area of the Columbia River, they began swimming 145 miles up the
Columbia River in the winter and spring to prey on threatened and
endangered adult salmon while the fish attempt to locate and pass
through fish ladders at Bonneville Dam. Having survived various sources
of mortality as downstream migrating juveniles and again as returning
adults, many of these adult wild salmon still have over 500 miles to
travel before completing their journey from the river mouth to their
spawning grounds, if they make it past the foraging sea lions. There
are 32 separate ESA-listed wild spring Chinook salmon populations, at
various levels of extinction risk, that are exposed to this
concentrated sea lion predation during the late winter and spring
period.
In contrast, both sport and commercial fishing regulations for
spring salmon in these same waters require that only marked hatchery
fish can be retained, while unmarked wild salmon must be released
unharmed. Harvest opportunity on the healthy hatchery salmon is
controlled by limits on incidental impacts to wild salmon that are
released while fishing for hatchery fish. Tribal fisheries are
prosecuted consistent with federal treaty trust responsibility, but are
also limited by status of wild fish and often reduced to levels below
their minimum cultural and subsistence needs. The harvest impact limits
are established in Federal Court agreements that comply with ESA, are
reduced significantly from past levels, and represent an increase in
survival of wild salmon through this particular source of mortality.
The NMFS endorsed comprehensive recovery plans recognize and count on
this increase in survival of salmon through the fisheries. Fisheries
are closely monitored to ensure the expected salmon recovery
contribution is met.
Management Objective
The fundamental objective shared by states, federal agencies, and
tribes is to reduce the sea lion predation of salmon so there is an
increase in the overall survival of the wild salmon. Additionally, the
region cannot afford to allow sea lion predation of wild salmon to
continue to increase, or it would effectively cancel out a portion of
other more costly recovery actions. The idea is to reduce predation,
not eliminate it, which is consistent with the approach taken to manage
other sources of impact to the salmon. Sea Lions, birds, and fish
should be able to continue to predate on salmon, just as people that
benefit from the Columbia River water, power, and fishery resources
should not be completely extracted from a manageable level of those
benefits. However, if salmon are to continue to exist and rebuild, all
sources of mortality must be managed within a balance that makes it
possible to achieve recovery. It is the combined effect of these
reductions that will make it possible to meet the goal.
Sea Lion Predation on Columbia River Sturgeon
While managers have focused on California sea lion predation of
salmon, a new management problem has arisen with Steller sea lion
predation of Columbia River sturgeon. Since 2008, the number of Steller
sea lions present in the Columbia River as far as 145 miles inland to
Bonneville Dam has increased significantly. The Steller sea lions are
arriving in the Columbia River in the fall and concentrating on
sturgeon as a primary food source before the salmon begin to return to
the Columbia River in the spring. The Steller sea lion consumption of
listed salmon is also increasing, but the most dramatic increase has
occurred with sturgeon. Washington and Oregon biologists have projected
that sea lion consumption of sturgeon will increase to over 10,000 fish
in 2011. The Columbia River sturgeon population below Bonneville Dam
rebounded from depressed levels 60 years ago. However, recent years
have seen a decline in sturgeon numbers and managers have repeatedly
reduced harvest and added protections in an attempt to maintain a
healthy sturgeon population. State managers are concerned about the
increasing and unregulated impact of Steller sea lions on the future
health of the sturgeon population. There is particular concern with
increasing predation of large female sturgeon (above five feet in
length) that are of mature reproduction size. There is currently no
provision in Section 120 to manage sea lion predation of a fishery
resource other then ESA-listed salmon and steelhead.
Need for a Reasonable Resource Management Tool
It is important that state and tribal natural resource managers
have the necessary tools to restore a balance between abundant and
healthy sea lion populations and the endangered and threatened salmon
and steelhead populations in the Columbia River, and in other areas
where sea lion predation develops into an additional new threat to ESA-
listed salmon recovery efforts. It is also important that managers have
the tools to address other developing resource management challenges
such as increasing threats to sturgeon in the Columbia River.
The benefit of a law that enables efficient and timely permanent
removal of California sea lions that travel far inland to feed on wild
salmon is to reduce a recent and significant source of mortality and
avoid compromising the ongoing federal, state and tribal efforts to
recover ESA-listed salmon and steelhead populations in the Columbia
River basin. It is not our contention that California sea lion
predation is more significant than other sources of mortality to
Columbia River ESA-listed salmon, but simply that it is significant and
that resource managers must have the ability to deal with sea lions
predation in a timely and reasonable manner as we do with other
resource management issues.
The current Section 120 provisions require that an individual and
identifiable sea lion is causing a significant impact to the decline or
recovery of ESA-listed salmon or steelhead stocks before it is eligible
for removal by the states. These provisions require a significant
amount of added work by state and federal biologists to meet the
requirements of removal authority under section 120. These requirements
have increased costs, reduced the numbers of sea lions removed, limited
the geographic area in which the problem can be managed, and slowed
progress towards reducing the impact to salmon.
We appreciate the current authority that has been granted by NMFS
through Section 120 and will work directly with NMFS to defend that
authority as we address the most recent legal challenge. We believe it
is important to maintain this authority to provide some level of relief
and hopefully prevent the California sea lion predation level from
increasing further while we await additional legislation.
We appreciate the work of the Natural Resource Committee Chairman,
Representative Doc Hastings, and representatives Norm Dicks, Jaime
Herrera-Beutler, and Greg Walden in drafting H.R. 946 in an effort to
provide the states and tribes a more effective and efficient means to
protect Northwest salmon and steelhead resources. We are thankful that
our Northwest Congressional representatives understand the enormous
investment that the region is making to recover salmon and are prepared
to assist us in effectively managing for those recovery goals.
NMFS convened a Pinniped Task Force in 2010 to review the progress
of the states Section 120 authority in the Columbia River. The majority
of the Task Force members recommended increasing the level of removal
of California sea lions that occurred in the first three years. A more
efficient and effective legal tool through H.R. 946 would provide the
opportunity for state and tribes to more adequately manage the sea lion
predation.
I want to thank the Subcommittee Chairman, Representative John
Fleming, M.D., for the opportunity to provide this written testimony
and to speak to the members of this Subcommittee regarding our concerns
for recovery of salmon in the Northwest. We look forward to development
of this legislation to enable appropriate management of predatory sea
lions that threaten Northwest salmon and other fishery resources.
______
Dr. Fleming. Thank you, Mr. Norman. Next is Mr. Virgil
Lewis.
STATEMENT OF VIRGIL LEWIS, SR.,
TRIBAL COUNCIL MEMBER, YAKAMA NATION
Mr. Lewis. Chairman Fleming and Committee Members, thank
you for the opportunity to testify today. I have submitted a
detailed statement, including video footage, photographs, and
written testimony from the Confederated Tribes of the Umatilla
Reservation.
I am Saluscum, and my English name is Virgil Lewis, Senior.
I am an elected Member of the Tribal Council for the Umatilla
Nation, where I also serve on the tribe's Fish and Wildlife
Committee. I am also a Commissioner of the Columbia River
Intertribal Fish Commission.
In addition to the Yakama Nation, the three members of the
CRITFC are the Confederated Tribes of the Warm Springs
Reservation, the Nez Perce Tribe, and the Confederated Tribes
of the Umatilla Reservation.
I am accompanied today by Charles Hudson of our commission
staff, along with George Waters, who works for my tribe. They
are here to help answer questions that you might have. We
strongly support H.R. 946, the Endangered Salmon Predation
Prevention Act sponsored by Chairman Hastings, and cosponsored
by Representatives Dicks, Walden, Simpson, and Herrera Beutler,
and we appreciate it that these elected officials have the
foresight to understand that this problem must be dealt with.
We are fully supporting of H.R. 946 for the following
reasons. Recently litigation makes it clear that the Marine
Mammal Protection Act, Section 120, needs clarification from
Congress.
H.R. 946 provides management access to our tribes and
CRITFC, a weakness of the original Act. H.R. 946 requires a
comprehensive review of the Marine Mammal Protection Act, and
recommendations for amendment.
Columbia Basin salmon recovery cannot afford a setback as
we witnessed in the Puget Sound's Ballard Locks, where winter
steel had become functionally extinct due to sea lion
predation, exacerbated by prolonged litigation. Tribal
ceremonial subsistence and commercial fisheries experienced
unique and unmitigated damage from growing sea lion predation.
We believe that H.R. 946 can be improved with tribal
treaty-saving language. Our written testimony offers such
recommended language. In 1905 in the case of the United States
v. Winans, the Supreme Court stated to the Yakima Indian people
the right of taking salmon in the Columbia River Basin was not
much less necessary to the existence of the Indians than the
atmosphere that they breathe.
We have come before the Congress and the highest courts in
the land to protect the sacred salmon, and we will never back
down from this duty. We are pleased that the highest courts in
the land have repeatedly affirmed our treaty fishing rights,
and obligation of the respective governments to protect that
resource.
Sea lions are damaging salmon runs, particularly the prior
spring chinook salmon. There is also no question that sea lions
are at historically high abundance since Congress enacted the
Marine Mammal Protection Act.
I was amazed to learn that the sea lion population is now
over 300,000. This is a six-fold increase since the enactment
of the Marine Mammal Protection Act. They are growing at a rate
of 5 to 6 percent a year.
I wish the same thing could be said for runs of salmon in
the Columbia River Basin. There are now 13 salmon and steelhead
populations in the Columbia Basin listed under the Endangered
Species Act.
We are concerned that they will soon be joined by the
Pacific Lamprey, White Sturgeon, and Smelt. Tribal people
acknowledge that a place for sea lions in the Columbia in fact
made traditional use of their skins and oils. Another aspect of
that relationship included lethal removal by tribal people when
they harmed fish runs.
Two things have changed the historical balance. As the
legislation points out, there have been a seven-fold increase
in the number of salmon killed by sea lions since 2002. There
are approximately 100 sea lions in the area below Bonneville
Dam.
If they ate only two salmon a day, which is a conservative
estimate, over the 88 days that they have been staying in this
area, they would destroy over 17,000 salmon, a significant
percentage, between 15 to 17 percent of the entire run.
The lower percentage figures that you will hear are simply
the number of salmon seen by humans above the surface of the
water with the salmon in their mouths as the percentage of the
salmon run. That is hardly a scientific way of determining the
extent of the sea lion take.
This is no longer just nature taking its course. Man's
involvement has tilted the scales away from the salmon, and we
must intervene to help counter-balance the impact. The Marine
Mammal Protection Act has taken away cultural and managerial
tools.
This 35 year old rigid statute, while benefiting sea lions,
is too inflexible to take into account the damage being done to
salmon, and therefore to the Indian people who are dependent on
the salmon for so many aspects of our lives.
Mr. Chairman, tribal crews have been involved in a
comprehensive effort with the State and Federal agencies to
nonlethally remove sea lions, and we have increased hazing to
seven days a week when the sea lions are in the vicinity of the
Bonneville Dam.
H.R. 946 contains a very responsible approach that will
allow for animal lethal takes of the most problematic sea
lions, and it contains numerous safeguards. We greatly
appreciate the inclusion of our tribes in this legislation.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Lewis follows:]
Statement of The Honorable Virgil Lewis, Sr., Confederated Tribes and
Bands of the Yakama Nation, and Commissioner, Columbia River Inter-
Tribal Fish Commission
Chairman Fleming, Ranking Member Sablan and distinguished Members
of the Fisheries, Wildlife, Oceans and Insular Affairs Subcommittee, on
behalf of the Yakama Nation and the Columbia River Inter-Tribal Fish
Commission (CRITFC), thank you for inviting me to testify in favor of
the Endangered Salmon Predation Prevention Act. I also want to extend
our great appreciation to Representatives Hastings, Dicks, Herrera,
Schrader, Simpson, and Walden for having introducing and co-sponsoring
this needed legislation.
We strongly support H.R. 946:
The Marine Mammal Protection Act's (MMPA) Section 120
needs clarification from Congress.
H.R. 946 provides management access to our tribes and
CRITFC, an unfortunate oversight of the original Act.
H.R. 946 requires a comprehensive review of MMPA and
recommendations for amendment. The MMPA is overdue for a
comprehensive review.
Columbia Basin salmon recovery can't afford a setback
as we witnessed in Puget Sound's Ballard Locks where winter
Steelhead became functionally extinct due to sea lion
predation.
Tribal ceremonial, subsistence and commercial
fisheries experience unique and unmitigated damage from growing
sea lion predation.
We believe H.R. 946 can be improved with tribal treaty savings
language and offer such later in this testimony.
Commission History and Legal Authorities
The Columbia River Inter-Tribal Fish Commission was formed in 1977
by resolutions from the four Columbia River treaty tribes: Confederated
Tribes of the Umatilla Indian Reservation, Confederated Tribes of the
Warm Springs Reservation of Oregon, Confederated Tribes and Bands of
the Yakama Nation, and Nez Perce Tribe. CRITFC's mission is to ensure a
unified voice in the overall management of the fishery resource and to
assist in protecting reserved treaty rights through the exercise of the
inherent sovereign powers of the tribes. CRITFC provides coordination
and technical assistance to the tribes in regional, national and
international efforts to ensure that outstanding treaty fishing rights
issues are resolved in a way that guarantees the continuation and
restoration of our tribal fisheries into perpetuity.
The combined ancestral homelands of our four tribes cover roughly
one-third of the entire Columbia River Basin in Washington, Oregon and
Idaho. Our existence on the Columbia River stretches beyond 10,000
years to time immemorial. Salmon has always been a unifying figure and
we rely on its abundance for physical and cultural sustenance.
Collectively, we gathered at places like Celilo Falls to share in the
harvest, forging alliances that exist today. Our fishing practices were
disciplined and designed to ensure that the salmon resource was
protected, and even worshipped, so it would always flourish.
Salmon was so fundamental to our society that in 1855 when our four
sovereign tribes \1\ and the United States collaborated and negotiated
treaties, our tribal leaders explicitly reserved--and the U.S. agreed
to assure--our right to fish in perpetuity within our ancestral
homelands as well as to ``take fish at all usual and accustomed
places''. We kept our word by ceding about 40 million acres of our
homelands to the U.S. and the U.S. pledged to honor our ancestral
rights. It was the expectation of our treaty negotiators then that we
would always have access to abundant runs of salmon; it is our
expectation now that the U.S. government will honor that commitment and
take the steps necessary to protect our treaty resources. The treaties
of 1855 were all ratified by the Senate of the United States. The
Supremacy Clause of the Constitution applies to all such treaties.
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\1\ Treaty with the Yakama Tribe, June 9, 1855, 12 Stat. 951;
Treaty with the Tribes of Middle Oregon, June 25, 1855, 12 Stat. 963;
Treaty with the Umatilla Tribe, June 9, 1855, 12 Stat. 945; Treaty with
the Nez Perce Tribe, June 11, 1855, 12 Stat. 957.
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The importance of fish, especially salmon, to our tribes cannot be
overstated. In U.S. v. Winans, the U.S. Supreme Court stated that
fishing was ``not much less necessary to the existence of the Indians
than the atmosphere they breathed.'' The salmon are an integral part of
our cultural, economic and spiritual well-being. They are a major food
source and our consumption is nearly ten times higher than the national
average. Salmon is fundamental to a healthy tribal diet and it plays a
significant role in combating the risks of heart disease and diabetes
in our communities.
Our livelihood evolved over thousands of years and our physical and
cultural survival was intimately tied to the salmon. Ceremony became
essential to insure the continued survival of the salmon, our
traditions, and thus ourselves. Without salmon and without ceremony, we
would cease being Indian people. We are longhouse people and these
ceremonies have gone on without interruption for thousands of years. It
is essential for all parties involved to understand how important these
fish are to our people. This is why we are alarmed over the increasing
impact by sea lions during low salmon returns.
A Brief History of Salmon Decline
The Columbia Basin and its tributaries began seeing major changes
in the 1800's as agricultural lands were developed and dams harnessed
the natural flows to build a western economy with low cost electrical
power, navigation, and irrigation. Commercial fishing lacked restraint
decimating salmon runs without regard for future generations. Logging,
mining and agriculture bit into the earth, fouling clean waters, and
degrading riparian habitat crucial to salmon survival. Nature's
bounties were exploited to build bigger cities with bigger economies,
and the energy and infrastructure to support them was siphoned from the
river. As more lands were flooded more promises flowed. Tribal leaders
were told the dams would actually make life easier on salmon as the
roaring pace of the river was reduced. We were also told that if any
impacts occurred they would be mitigated.
The mitigation and recovery of our treaty fishing resources has
been rather slow. Thirteen salmon and steelhead populations in the
Columbia Basin are listed under the Endangered Species Act (ESA).
Pacific lamprey and white sturgeon populations are also depressed and
resources to rebuild them are slim, making us worry if they too will be
listed under ESA. On the other hand, California sea lions, protected by
the Marine Mammal Protection Act (MMPA) are at historically robust
population levels. Unfortunately, the success of the MMPA is exacting a
toll on the recovery of ESA listed species and other natural stocks in
the Columbia Basin.
Regional Recovery Efforts
We have been doing our best to bring the salmon back. In
cooperation with States, Federal Agencies, and our neighbors in the
Columbia Basin we are making huge financial and social investments in
recovery efforts. The Tribes have long shouldered a heavy conservation
burden through voluntary harvest reductions on our fishery. Our treaty
rights extend below Bonneville Dam; however harvest agreements allow
non-tribal sport and commercial fisheries to enjoy harvests.
In 2008 CRITFC and its member tribes successfully concluded lengthy
negotiations resulting in three landmark agreements: 1) the Columbia
Basin Fish Accords \2\ with federal action agencies overseeing the
federal hydro system in the Columbia Basin, 2) a Ten-Year Fisheries
Management Plan with federal, tribal and state parties under U.S. v OR,
and 3) a new Chinook Chapter of the Pacific Salmon Treaty.\3\ These
agreements establish regional and international commitments on harvest
and fish production efforts, commitments to critical investments in
habitat restoration, and resolving contentious issues by seeking
balance of the many demands within the Columbia River basin.
---------------------------------------------------------------------------
\2\ The Nez Perce Tribe is not a Columbia Basin Fish Accord
signatory
\3\ See ``Salmon Win A Triple Crown'' at http://www.critfc.org/
text/wana_w09.pdf
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Impacts of California Sea Lions on Tribal families
Salmon fishing has long been a traditional way of providing the
necessary means to safeguard our families economically. Even the
settlers who descended upon our ancestral homelands capitalized on the
abundant salmon runs to secure an economic foothold in the region. In
the middle the 1900's, spring salmon runs dwindled and we had to forgo
a tribal commercial harvest. However, when runs rebounded slightly from
2000 to the present we were able to open limited commercial tribal
harvests. Unfortunately, the strong runs also brought the sea lions
upstream in larger numbers.
A commercial tribal fishery diversifies economic opportunities in
what are traditionally hard hit rural economies. We have made
considerable investments to rebuild our salmon economy and increase the
commercial value of tribally caught salmon. Not long ago, the tribal
commercial fishermen were receiving 30 to 40% less than market value.
Today we have overcome this disparity. It has taken several years to
build a brand identity for tribally caught salmon. Soon we hope to open
a fish processing facility near White Salmon, WA to provide an even
better product and return on value. The public is embracing the
benefits of buying the products of our tribal fishery and demand is
outstripping supply.
While the sea lion problem occurs year round in the lower Columbia
River, the mainstay of our salmon economy is the spring Chinook where
the sea lion predation is greatest. Some fish buyers won't purchase
damaged fish and the value can drop as much as 50%. The growing level
of sea lion predation can devastate the hard earned value of the tribal
commercial fishery. Also submitted accompanying this testimony are
photographs of Columbia River Spring Chinook showing damage from sea
lions.
Marine Mammals--a growing management problem
California sea lions and other marine mammals have always existed
in the river as has a respectful relationship between them and tribal
people. Tribal members harvested them for their skins and oils. Tribal
members also killed marine mammals that were disruptive to fishing
activities. Though well intentioned, the MMPA has made the river more
hospitable to opportunistic sea lions and less hospitable to salmon,
lamprey and sturgeon survival by limiting traditional and modern
management methods. The sea lions have learned to profit from the
abnormal situation by preying on salmon and other treaty protected
resources particularly at vulnerable areas like Bonneville Dam. They
are cunning as proven by their ability to outmaneuver the exclusion
devices placed in the fish ladders and their ability to ride the
shipping barges through the dam's locks. While we admit that the
Creator intended a place for them, it doesn't lessen the problem they
are causing by exploiting an unnatural environment.
There was a time when a portion of a state fishing license fee was
used to manage the sea lion population to reduce their predation.
Historically, when sea lions made it up to those parts of the river
where the dams now sit, they would be shot and they would be bled out
in the river. Sea lions are shrewd enough to then understand that this
was an area they needed to avoid. Things have changed for the worse now
because man has changed the nature of the river. Now returning salmon
must pass artificial dams and must go up man made cement fish ladders
to get upstream. They are trapped by sea lions who understand the
salmon must go right by them if they hang out close to the ladders. We
ask our friends in the animal rights community to understand that we
are dealing with basic nature when the ability of endangered salmon to
defend themselves has been so compromised.
Some people claim that placing blame on the sea lions is a ruse to
divert attention away from the dams' impact on salmon survival. If they
understood our dilemma they would clearly recognize that attention is
actually being drawn to Bonneville Dam where a growing number of sea
lions have learned to exploit an artificial situation to
disproportionately impact depressed salmon runs. Increasing numbers of
sea lions have been documented returning year after year. In the last
five years, over a hundred animals have learned to prey on threatened
and endangered spring Chinook as they converge on the entrances to the
dam's fish ladder.
Significant predation at the dam is rising, evidenced by the number
of salmonids eaten by sea lions. As the size of the natural salmon runs
dwindle in numbers the impact of predation on wild fish is greater. The
states and NOAA estimate 18,000 to 25,000 adult salmonids are lost to
sea lions annually between Bonneville Dam and the mouth of the river.
In addition, impacts by sea lions are disproportionally distributed
during the early portion of the run. For the period of March and April
there are many days when the take by sea lions exceeds the fish count
in the ladders. We are concerned that these early returning fish may be
from stocks that are most at risk of extinction.
Every year a few sea lions pass through the Bonneville Dam lock.
These animals damage fishing gear and steal salmon from our fishers. In
2009, a California sea lion spent the entire summer upstream of the dam
impacting fishers and feeding on fish as the exited the fish ladders.
Studies show that the farther upstream the sea lions travel, the higher
percentage of salmon and steelhead in their diet. Additional studies
indicate that salmon comprise 10-30% of their diet. The latest
available sampling data beginning in 2001 shows that each year slightly
over 30% of the spring salmon passing though Bonneville's fish ladder
have suffered some form of injury caused by marine mammals. Those
salmon that escape with harsh wounds are less likely to survive their
upstream journey and unlikely to successfully spawn. Tribal and non-
tribal fishermen who harvest these injured fish cannot fully utilize
them for their subsistence, sport and commercial value.
Hazing--Necessary but Insufficient
Since 2005, CRITFC along with Washington and Oregon, have tried
dispersing sea lions from the dam through daytime hazing from boats.
Our actions have been limited to the area just downstream from the dam
and not the entire 150 river miles from the dam to the Pacific Ocean.
Nonlethal hazing appears to have been slightly more successful this
year based upon evidence from the USACE observers, however after the
crew is done for the day the sea lions move back into the prime feeding
positions. Hazing is difficult and risky due to daylight-only
limitations and frequent hazardous water conditions. Even under ideal
conditions hazing alone is inadequate to remedy the predation problem.
We do recognize that some animals respond to hazing better than
others and that it will remain a component of any future robust
management package. CRITFC and tribal crews wish to continue
implementing hazing functions as well as telemetry tracking and
monitoring of pinnipeds. Initially CRITFC diverted a portion of our
Bureau of Indian Affairs funding to pay for our hazing efforts, however
the Bonneville Power Administration has funded our hazing efforts since
2007.
Justification of Support for H.R. 946
The California sea lion problem exists in multiple waters along the
Pacific coast but it is perhaps nowhere more alarming than what is
occurring in the Columbia River. That is why we support The Endangered
Salmon Predation Prevention Act and we applaud its introduction. This
legislation will help us employ new alternatives to provide us with a
means to help us deal with only those select animals responsible for
the greatest impact. This legislation can ease the depredation
occurring on our treaty protected resources as well as help curb
predation on ESA listed species over the next five critical years. We
should not be forced to stand back as sea lions cause other species,
such as sturgeon and lamprey, to become listed under ESA.
We do not take the National Environmental Protection Act exemption
lightly. However, this is a short term, three year exemption focused
exclusively on managing the most aggressive individual California sea
lions whose predation severely impacts an entire wild salmon
population. The legislation is also limited solely to the Columbia
River and its tributaries. It relies on the taking of California sea
lions within biological limits spread over the total California sea
lion population. The exemption is necessary to give the fishery
managers the ability to respond swiftly to avoid extraordinary delay
that puts the species, our investments, and our livelihood at risk.
We support the legislation's provision which provides the public an
opportunity to submit comments. The language calls for consultation in
order to issue a permit and establishes accountability through an
annual reporting requirement concerning the implementation of any
taking of California sea lions.
We are grateful that the authors of this legislation are including
each of our four member tribes as eligible entities for applying for a
permit, and identifying the Columbia River Inter-Tribal Fish Commission
as an eligible entity to delegate permit authority. We are very
capable, professional fishery managers with the necessary skills to
administer and implement the provisions of a permit.
There are provisions for de-listing species under the ESA--
something we all aspire to achieve with salmon. The same consideration
should be given to marine mammals who have achieved their optimum
sustainable populations as provided under the MMPA. We agree with the
legislative language calling for the Secretary of Commerce to issue
Congress a report on the issue of marine mammal predation on ESA listed
species. MMPA is overdue for reauthorization and we urge Congress and
the administration to take this matter up and reconcile the disparity
over one species being caught in the middle when two environmental
protection laws clash.
The states of Washington, Idaho and Oregon have applied for
management tools under Section 120 of the MMPA. Each of our four tribes
and CRITFC committed representatives to each of the two convenings of
the Pinniped Interaction Task Force. In each case the Task Force
developed sound and effective recommendations to NOAA for proceeding
with the real challenge which is NOAA's ability to shepherd any
decision through the NEPA process. If the consideration of new sea lion
management alternatives is bogged down, as shown in Seattle's Ballard
Locks experience, considerable predation will continue during future
spring runs.
Healthy spring Chinook returns in recent years lead to more sea
lion and human conflict. If we return to using the same failed tactics
we use today, then it will be difficult to answer to the region, the
region's fishermen, and the taxpayers who have invested in salmon
restoration across the Columbia Basin.
A recommendation for amendment--Treaty Savings language
H.R. 946 would successfully amend the Marine Mammal Protection Act
allowing it to stand alongside as a visionary and effective law in the
Columbia Basin like the Northwest Power Act. To clarify that this
amendment does not affect or impact tribal treaties we recommend Treaty
Savings language such as that included in the Northwest Power Act, 16
U.S.C. 839g (e).
``Nothing in this chapter shall be construed to affect or
modify any treaty or other right of an Indian tribe.''
In conclusion, the United States made many promises beginning in
1855 with our treaties and subsequently when the dams were constructed.
The treaty rights are meant to preserve our physical, cultural and
economic livelihood--the U.S. committed to protecting these rights. We
were further promised that any harm done to our fisheries attributed to
the dams would be taken care of--Bonneville Dam has created an
artificial situation the sea lions have learned to exploit. We have run
out of options and any new technology will not be available in the near
future to deal with the current dilemma.
We need more options to deal with the growing sea lion depredation
and we need timely solutions to protect our ceremonial, subsistence and
commercial harvests for salmon, lamprey and sturgeon.
Again, thank you for this opportunity to share our concerns and to
express our support for this legislation.
CRITFC Contact:
Charles Hudson
hudc@critfc.org
Phone: 503-238-0667
Fax: 503-235-4228
Columbia River Inter-Tribal Fish Commission
729 NE Oregon, Suite 200
Portland, OR 97232
www.critfc.org
______
Dr. Fleming. Thank you, Mr. Lewis. Last, Ms. Young, you
have five minutes, Ma'am.
STATEMENT OF SHARON B. YOUNG, MARINE ISSUES FIELD DIRECTOR, THE
HUMANE SOCIETY OF THE UNITED STATES
Ms. Young. Mr. Chairman and Members of the Subcommittee, my
name is Sharon Young, and I am the Marine Issues Field Director
for The Humane Society of the United States.
I am a member of the Bonneville Dam Pinniped Task Force
that has met pursuant to Section 120 of the MMPA. As such, I am
familiar with the data on the interactions between salmon and
sea lions in the Columbia River.
I am grateful for the opportunity to present our views on
H.R. 946, the Endangered Salmon Predation Prevention Act. We
are concerned that not only will this bill not prevent
predation, but that it may seriously undermine other key
legislation.
The issue of predation in the Columbia is not as it has
been portrayed. This is not an issue of charismatic sea lions
versus endangered salmon. It is an issue of whether killing sea
lions is necessary, or even effective, in promoting salmon
recovery.
Sea lions do eat salmon in the Columbia, but the predation
is not an imminent threat as suggested. The National Marine
Fishery Service has stated that the spring salmon runs are
stable or increasing, and they have been at near-record levels
in recent years.
They are not in imminent danger of collapse. Monitoring by
the Army Corps of Engineers at the Bonneville Dam provide some
facts about what is happening. Since the States first applied
to kill sea lions at the dam in 2007, the Army Corps reports
tell us that observed predation as a percentage of runs has
declined every year for the last four, even when killing was
not authorized.
Predation is estimated at 1.4 percent of the 2011 run. At
the same time, fisheries take these same ESA listed fish at a
rate that regularly exceeds annual quotas, and the take was 17
percent of the total run of spring chinook in 2010 when sea
lion predation was observed at three percent.
Most importantly the number of sea lions at the dam this
year was lower than any year since 2002, even though no sea
lions were killed. Their residency time at the dam is shorter.
Sea lions continually go in and out of the river. In any
given year, 30 to 70 percent of the sea lions at the dam have
not been previously identified. As the findings section of the
bill acknowledges, there are up to a thousand sea lions in and
around the Columbia River.
Telemetry data and I.D. at the dam confirm that sea lions
regularly come and go. This is not a situation, such as Ballard
Locks, where a handful of resident animals might be removed and
thus end predation.
Even NMFS projected in their 2007 environmental assessment
that because of this replacement, no reliable estimate of
reduction in sea lion predation could be made as a result of
lethal take.
As sea lions are killed or otherwise removed others simply
take their place. Killing sea lions distracts attention from
the number of key problems that are going on unaddressed, and
that could make a significant difference in the trajectory of
salmon recovery.
A 2009 Congressionally established science panel strongly
criticized the operation of harvest and hatchery programs,
stating that they posed a barrier to recovery. Yet, its
recommendations remain largely unaddressed.
Deliberate stocking of non-native sport fish, such as bass
and walleye, has resulted in an estimated three million
juvenile salmon being eaten each year, and poses a threat that
NMFS scientists have deemed greater than habitat impacts.
Although increased survival of juvenile salmon is one of
the primary recommendations in the salmon recovery plans, this,
too, remains largely unaddressed. But we are also concerned
that this bill has less apparent dangers inherent in its
language.
By broadening the field of those who can kill sea lions to
include non-uniform, non-government personnel, and by loosening
the conditions under which killing takes place, members of the
public may mistake shooters along the river as providing tacit
permission for them to kill sea lions as well.
More dangerously, in exempting killing sea lions from both
the narrow scriptures of the MMPA, and the public review of
impacts under the National Environmental Policy Act, the bill
would sacrifice transparency and deliberation in the name of
expediency.
Contrary to the stated intent of the 1994 predecessor of
this Committee, H.R. 946 would casually lift protections for
marine mammals, while dramatically limiting public involvement
and obviating a deliberative approach.
It sets the dangerous precedent of exempting a
controversial wildlife management program from NEPA analysis.
Expediting the approval of killing sea lions will not speed
salmon recovery. We believe that it will simply waste time that
salmon can ill afford, and waste the lives of sea lions, while
major threats to recovering salmon remain unaddressed.
Some of my fellow panelists wish that this bill would
include killing sea lions for eating non-listed fish, such as
sturgeon, and to broaden the bill's application to other
situations even beyond the Columbia, or to selectively admit
coverage under the MMPA for certain species deemed troublesome.
This is something that we would adamantly oppose.
The result of this bill we fear may be a form of vigilante
response to sea lions not seen since the passage of the Marine
Mammal Protection Act in 1972. Thank you.
[The prepared statement of Ms. Young follows:]
Statement of Sharon B. Young, Marine Issues Field Director,
The Humane Society of the United States
Mr. Chairman and members of the Subcommittee, my name is Sharon
Young and I am the Marine Issues Field Director for the Humane Society
of the United States (HSUS). On behalf of the HSUS and its more than 11
million members and constituents, I am grateful for the opportunity to
present our views on H.R. 946, the Endangered Salmon Predation
Prevention Act.
I am an appointed member of the Bonneville Dam Pinniped Task Force
that has met pursuant to Section 120 of the Marine Mammal Protection
Act (MMPA). As such, I am very familiar with the interactions between
salmon and sea lions in the Columbia River and with the data and
science surrounding salmon management and recovery.
Salmon stocks along the west coast struggle to recover from habitat
loss and degradation and decades of poor management. Although sea lions
and other marine mammals eat salmon, their impact pales in comparison
to that of other unaddressed and ongoing impacts. These ongoing threats
include competition with hatchery fish and with non-native introduced
fish. Not only is predation a lesser impact than that of fisheries that
incidentally kill the very same salmon stocks, but killing sea lions
will not prevent their predation, as this bill's title contends.
Expediting the approval of killing sea lions will not speed recovery.
We fear, instead, that it will simply undermine important environmental
legislation and lead to a form of vigilante response not seen since the
passage of the Marine Mammal Protection Act in 1972.
Background on Predation in the Columbia River
No one disputes that sea lions eat salmon. For millennia sea lions
have eaten salmon. Lewis and Clark documented their presence in their
exploration of the Columbia River valley. Sea lions journeyed from the
sea up to Celilo Falls, which was the first great hurdle for salmon
prior to construction of any dams. It was at Celilo Falls that they,
and the tribes, gathered to take advantage of the seasonal salmon runs.
Celilo Falls was subsumed with the construction of Bonneville Dam,
which is now the place where salmon queue as they move further inland
to spawning grounds. Far from being an invasive species that is out of
habitat, sea lions are merely returning to an area that was part of
their original hunting ground.
Populations of a number of seals and sea lions were decimated in
the wake of heavy hunting and overharvest. Only with the passage of the
Marine Mammal Protection Act in 1972 did they begin to recover and
gradually return to historic foraging areas. It may be that there are
more sea lions off the coasts of Washington and Oregon now as their
southern distribution shrinks in response to changes in oceanic
temperatures and habitat suitability wrought by human-caused climate
change; but they are not strangers to the Pacific Northwest.
The National Marine Fisheries Service (NMFS), the states of Oregon
and Washington, and the Army Corps of Engineers (Army Corps) started
documenting sea lion predation at Bonneville Dam almost 10 years ago.
Since that time, the picture of predation is more varied than is
implied in the findings of H.R. 946.
In a 2011 supplemental report that accompanied a renewed lethal
taking authorization, the NMFS stated that the ``overall abundance of
Chinook and steelhead potentially impacted by pinniped predation [has]
increased or stayed the same since the last status review was conducted
prior to 2005.'' The spring run is not declining, as some have alleged.
In fact, in each of the past three years, the run sizes have been near
record. As of its final report for the season on May 27th 2011, the
Army Corps concluded that this year's run was on track to be the third
largest since 2002. Approximately 30 percent of that run is comprised
of salmon listed as threatened or endangered under the Endangered
Species Act (ESA); the remaining 70 percent of fish in the run is not
ESA-listed.
In 2007, when the states first requested authorization to kill sea
lions at the Dam, predation ranged from 0.4 to 4.2 percent of the
spring salmon run. The Army Corps' observed predation rate at the Dam
(which is an expanded estimate that attempts to account for some unseen
predation) has steadily declined from 4.2 percent in 2007 when the
states first applied to kill sea lions. This decline has occurred
independently of lethal removal of sea lions. According to the Army
Corps reports from Bonneville Dam, in 2008, the predation rate was 2.9
percent of the run; in 2009 it was 2.4 percent of the run; and in 2010
it was only 2.2 percent of the run. The Army Corps' May 27th
preliminary wrap-up report for 2011 that summarized predation, states
that an estimated 1.4 percent of the run was consumed. We point out
that the government initially stated that the goal was to reduce
predation to 1 percent of the run and that is indeed what it was this
year--and this was a year in which no killing of sea lions took place.
Although the ``findings'' section of the bill avers that the
percentage of salmon eaten has increased seven fold since 2000, in
fact, although raw numbers consumed have increased, the percentage of
the run consumed is the lowest since 2002.
The Real Problem Still Facing Salmon Recovery
Although sea lions eat them, predation by sea lions is among the
least of the problems facing the fish in the Columbia and thus should
be among the lowest priorities when taking action to assist recovery.
The causes of the decline of salmon are directly attributable to
impacts resulting from what are often called the ``Four H's'': habitat,
hatcheries, harvest and hydroelectric. As the findings in the bill
point out, the government has likely spent a billion dollars or more to
address some of these issues including habitat restoration and the
deaths of countless salmon smolt and adults as they were attempting
passage through the Dams.
But it would be incorrect to assume that the impacts of the ``Four
H's'' that are the major factors retarding recovery are being
adequately addressed. I will focus on impacts from hatcheries and
harvest as two examples of significant threats to recovery that remain
inadequately addressed.
Competition between wild run salmon and hatchery raised fish is
well known. Research has documented competition for spawning habitat
and food. It has also shown that hatchery-raised fish do not spawn as
effectively as their native relatives. Nonetheless, most of these
adverse impacts from the hatchery programs remain unaddressed. Since
2000, the U.S. Congress appropriated funds through the U.S. Fish and
Wildlife Service to address hatchery reform. In doing so, Congress
recognized that the system was in need of comprehensive reform because
fish were being produced for harvest rather than for conservation of
at-risk populations. Further, hatchery programs were not taking into
account the effects of hatchery-spawned fish on naturally spawning
populations. In fact, hatchery programs as currently operated
constitute a barrier to recovery of the wild runs. In 2009 The
Congressionally-established Hatchery Scientific Review Group, issued
its Report to Congress on Columbia River Basin Hatchery Reform. It
determined that both hatchery and harvest reforms were needed. They
found that traditional hatchery practices are ``not consistent with
today's conservation principles and scientific knowledge.'' The
Scientific Group recommended changes in current practices that would:
Manage hatchery broodstocks to achieve proper genetic
integration with, or segregation from, natural populations;
Promote local adaptation of natural and hatchery
populations
Minimize adverse ecological interactions between
hatchery- and natural-origin fish;
Minimize effects of hatchery facilities on the
ecosystem in which they operate; and
Maximize the survival of hatchery fish.
Yet the vast majority of these recommendations remain unaddressed.
Current hatchery practices continue to hamper optimal recovery of the
salmon.
The Scientific Review Group also criticized the management of
harvest. The Group pointed to problems with non-selective harvest of
listed Columbia River Chinook both in the in-river fisheries and in
ocean harvests from Alaska through Oregon. While harvest management has
been touted by the NMFS and the states as a controllable impact on the
ESA-listed fish, the Science Group criticized harvest practices. The
NMFS' own reports acknowledge that in-river fisheries regularly exceed
their quota for incidental killing of ESA-listed fish.
The Court-approved Joint Columbia River Management Report for
Oregon and Washington stipulates flexible incidental harvest quotas for
the listed fish in the spring run. Depending on the size of the run,
this percentage of incidental harvest ranges from 5 percent of the run
to 17 percent of the run. In its Supplemental Information report
accompanying the 2011 authorization for lethal removal of sea lions,
the NMFS acknowledged that in 2008, the in-river fisheries incidentally
killed 16 percent of the listed fish in the spring run despite an
allowance of incidental kill of 11 percent. In 2009, the in-river
fisheries stayed within the allocation (taking 10.2 percent of the ESA
listed run. In 2010, the fisheries were allocated 13% of the run in a
mid-season adjustment, yet they killed 17 percent--substantially over
the quota. At the same time in 2008, 2009 and 2010, the NMFS' estimate
of the sea lion predation rates was less than 3 percent each year.
Fisheries not only exceeded their allocations, but they took up to
eight times as many ESA-listed fish as sea lions ate and yet this level
of fishery impact was deemed by the states to be a ``negligible''
impact.
In addition to the unaddressed issues of harvest and hatchery
reform, other unaddressed issues plague the recovery of salmon.
A 2010 report by NMFS scientists documented the threat posed by the
continued stocking of non-native sport fish in the Columbia. These fish
would be deemed a harmful, invasive species but for the fact that they
are being deliberately introduced into the Columbia for the benefit of
sport fishermen. The 2010 report by NMFS scientists found that non-
native walleye alone eat up to three million juvenile salmon each year.
The NMFS itself has recognized that this predation poses a serious
threat to the salmon, likely exceeding the habitat impacts, and yet
NMFS acknowledges that nothing is being done about it at this time.
The impact of sea lion predation on the spring run salmon pales in
comparison to the significant impacts of these unaddressed human-
related impacts that need to be remedied. Since they were first granted
authorization to kill sea lions at Bonneville Dam, the states have
increased the amount of salmon that fishermen are allowed to take each
year as run sizes have increased, and the fishery quotas are far larger
than the impact of observed predation. Prior to the authorization to
kill sea lions, the incidental harvest quota for in-river fisheries was
9 percent and had risen to 13 percent by 2010. Moreover, fishermen in
the river regularly exceed these incidental harvest quotas, with 17
percent of the run incidentally killed in fisheries in 2010, despite a
quota of 13 percent. Poorly conceived, and repeatedly criticized,
hatchery programs are interfering with recovery of wild run fish. The
introduction of non-native fish such as bass and walleye continues to
pose a serious threat to the survival of juvenile salmon even though
increasing juvenile salmon survival rates is one of the top goals in
the salmon recovery plan. Killing sea lions merely distracts from the
fact that these more significant problems remain unaddressed.
Consequences of this Bill on the Marine Mammal Protection Act and the
National Environmental Policy Act
Prior to 1972, it was open season on sea lions. The state of Oregon
even paid a shooter to kill seals and sea lions in the Columbia. With
the passage of the MMPA, intentional killing stopped. The moratorium on
killing remained in place until 1994 when a narrow exception to its
strictures was put in place. I was part of a Congressionally-sanctioned
multi-stakeholder negotiating group that met from 1992-1994 to advise
on amendments to the MMPA to address fishery interactions. Our group
devised the framework for what became Section 120 of the MMPA that
permitted pinnipeds to be killed in narrow circumstances.
Far from sanctioning a ``cull'' of sea lions, Section 120 required
that a limited number of identifiable individuals be having a
``significant negative impact'' on the decline or recovery of listed
salmonids. The issue of predation at the Ballard Locks in Washington
was also incorporated because, even though not ESA-listed, the
steelhead run had declined to only one hundred or so fish and a small
handful of sea lions had developed a unique strategy to eat the fish.
These steelhead were not harvested by fishermen and the proximal threat
to the fish appeared to be the sea lion predation. In stark contrast to
the situation at Ballard locks, the majority of fish that run in the
Columbia River are not ESA-listed and even the listed runs number in
the tens of thousands of fish and are generally increasing in size.
Fishing that results in the death of the listed fish is still permitted
and the proximal threat is not predation.
When Congress put Section 120 in place, the predecessor of this
sub-committee stated that it ``recognize[d] that a variety of factors
may be contributing to the declines of these stocks'' and made it clear
that ``the current levels of protection afforded to seals and sea lions
under the Act should not be lifted without first giving careful
consideration to the other reasons for the decline.'' H.R. Rep. No.
103-439 (1994).
Section 120 was crafted to assure that any killing that might
result would have a meaningful impact on the recovery of fish. It
requires that pinniped predation be having a ``significant negative
impact'' on recovery and that there be measurable criteria for judging
success. Consistent with this narrow limitation on the take of marine
mammals, Section 120 sets a forth specific procedure and a series of
determinations the Secretary must make, before permitting the lethal
take of pinnipeds to ensure the limited exception is adequately
justified. In establishing these procedures, Congress made it clear
that public input was an important and required part of the decision
making process. The legislative history affirmed that ``there are
numerous opportunities for public comment and safeguards in this
provision to ensure a careful and thoughtful deliberation of the
request to remove a nuisance animal.'' 140 Cong. Rec.S.3288, S3300.
In contrast to the transparent and deliberative process that was
put in place in 1994, HR 946 seeks to prevent public comment in all but
a narrow window of time when the Secretary is considering whether or
not nonlethal measures have been successful. Further, it would exempt
killing sea lions from review under the National Environmental Policy
Act (NEPA).
NEPA is America's ``basic national charter for protection of the
environment.'' 40 C.F.R. Sec. 1500.1(a). NEPA has a critical purpose in
``insur[ing] that environmental information is available to public
officials and citizens before decisions are made and actions are
taken,'' and ``help[ing] public officials make decisions that are based
on understanding of environmental consequences. Id. Sec. 1500.1(b)-(c).
``Public scrutiny [is] essential to implementing NEPA.'' Id.
Sec. 1500.1(b). NEPA not only requires that there be alternatives
presented for consideration and that environmental consequences be
considered, 42 U.S.C. Sec. 4332(2)(C); 40 C.F.R Sec. 1502.14, but that
``[a]gencies shall ensure professional integrity, including scientific
integrity, of the discussion and analyses in environmental
statements.'' 40 C.F.R. Sec. 1502.24.
In place of a process designed to be transparent and to encourage
public involvement, this bill would allow decisions made with little or
no public scrutiny and no consideration of either alternatives or
consequences. However, it is just this type of action--a controversial
wildlife management program with controversial environmental impacts--
for which NEPA's implementing regulations mandate comprehensive
environmental analysis. Id. Sec. 1508.27(b)(4). The bill's simple
assertion that Section 120 is ``protracted and will not work'' in a
timely manner is hardly a sufficient reason to exempt the killing of
otherwise federally protected marine mammals from the careful,
deliberative procedures of NEPA and the MMPA. The deliberative process
that should accompany such a dramatic change in how we manage and
conserve marine mammals would be swept aside in the interest of speed.
Are we to exempt projects, one after the other, from NEPA simply
because a sponsor considers environmental protection cumbersome? Are we
to deny the public a right to involve itself in the management of a
public trust resource comprised of some of the more beloved creatures
in the marine world simply because involving them would slow the
juggernaut?
The Section 120 process that Congress put in place in 1994 was
transparent and deliberative for a reason that is no less relevant
today. The public has a right to be involved. The issues at stake
should see the light of day. As the House sub-Committee found in 1994,
``the current levels of protection afforded to seals and sea lions
under the Act should not be lifted without first giving careful
consideration to the other reasons for the decline.'' H. Rep. No. 103-
439. Indeed, the reasons for the decline or slow recovery of salmon in
the Columbia are many and manifold but sea lion predation is one of the
least of them.
The Evidence That This Bill Cannot Accomplish Its Objectives
Although HR 946 promises through its title to prevent predation, it
cannot succeed. Only if the predation is confined to a few animals will
eliminating them provide relief. In this case, as the bill acknowledges
in its findings, there are approximately 1,000 sea lions in and around
the Columbia River. It is not the case that only a few of them trouble
themselves to swim 140 miles up to the Dam to eat fish, rather there is
a constant flux of sea lions. The reports from the Army Corps that were
provided to the Bonneville Dam task force document that between 30
percent and 70 percent of sea lions seen in any year have not been
identified from a previous year. The Army Corps reports that there are
50-80 sea lions seen at the Dam in any given season yet, on average, 20
or fewer are there on any given day. They come and go.
The apparent futility of killing sea lions to halt predation was
acknowledged by the National Marine Fisheries Service in their 2008
Environmental Assessment that stated that ``it is likely that other sea
lions would eventually replace the sea lions that were lethally
removed'' and went on to acknowledge that this made it difficult to
``support a reliable estimate of any decrease in pinniped predation
(and corresponding increase in salmonid survival).'' [EA at 4-11]. The
lethal program that was authorized has substantiated this prediction.
As mentioned above, there are new sea lions coming and going constantly
whether or not killing is taking place. As recently as 2010, the Army
Corps reported up to 70 percent of sea lions seen at the Dam had not
been previously identified, even as they were removing some sea lions,
others arrived. In 2011, when no removals were taking place, the Army
Corps reports that 28 of the 50 sea lions at the Dam (only around half
of them) had been identified in previous years. Killing 85 sea lions
will not prevent predation. It will not increase salmonid survival. It
will simply kill sea lions to no purpose other than to satisfy the
frustration of fishermen who would like to see the sea lion killed that
stole what they see as ``their'' fish.
There are a number of unclarities in the bill. It does not specify
a season in which killing would be confined. It does not confine
killing to a previously identified individual. As written, any sea lion
seen with a fish in its mouth could be shot by an individual with
permission to kill. If killing begins early in the spring, it is highly
likely that the entire authorization (85 sea lions) could be killed
within a month or so, with no ability to address predation later in the
season.
There may be another troubling side effect to this proposed
legislation as well. Under the authority that NMFS granted in 2008, sea
lions could be shot only from land or dam structures and only by state
or Army Corps personnel. As proposed in this bill, shooting is not
limited to the vicinity of the Dam. Further, not only could government
employees dispatch sea lions, but tribal members from several tribes
may be authorized to kill them as can other individuals who are
contracted by one of the entities eligible to obtain permits. There is
also no stipulation as to the distance from which sea lions can be shot
or the platforms from which shooting can take place. It appears they
could be shot from boats, a practice that the NMFS declined to
authorize as providing too unstable a shooting platform to result in a
predictable and humane death.
Further, given the difficulty of differentiating California from
Steller sea lions that plagues most members of the public, what
assurance is there that ESA-listed Steller sea lions are not also
killed? This is particularly difficult to ascertain if carcass recovery
is not mandated and personnel are shooting from a distance and not
highly experienced in speciation.
This broadening of who may kill sea lions is likely to result in
members of the public seeing what appear to be other members of the
public in plain clothes shooting sea lions along the river from a river
bank or from boats. They may be unaware that these shooters are not
just other fishermen or hunters taking revenge on a sea lion that ate a
fish, but have a special authorization that is unavailable to members
of the general public. At one meeting of the Bonneville Dam task force
an employee of an authorized Oregon marine mammal stranding response
group stated that incidents of sea lion shootings had spiked since the
NMFS authorized the states to kill sea lions. Media reports of dead
shot sea lions in Washington and Oregon were more frequent as well in
2009 and 2010. If frustrated fishermen see others shooting sea lions in
and along the river, it is highly likely that this will simply
encourage more illegal killing. This presents an enforcement nightmare.
It also harks back to vigilante days prior to 1972 when sea lions were
shot at will and their bodies washed up along shorelines or floated to
the sea even as salmon continued to decline from the real threats that
remained unaddressed.
In Conclusion
In closing, we believe that this proposed legislation is not only
unnecessary but potentially dangerous. It is unnecessary because the
number of sea lions at the Dam is down. Their residency time at the Dam
is reduced. The percentage of fish in the run that are eaten has
declined each year for the past four years even as the percentage of
the same fish killed by fishermen has risen. Moreover, other sources of
salmon mortality, such as hydropower operations, ocean fisheries and
the management of hatchery programs, have not been adequately
addressed. In some cases, such as the stocking of non-indigenous fish
for recreational purposes, the severe negative impacts to salmon have
not been addressed at all. Sea lions come and go throughout the river
throughout the season--it is not a situation in which there is only a
handful of predators that can easily be eliminated and thus eliminate
predation. As the lethal program of the past 3 years has shown, the
percentage of predation-related salmon mortality and the size of salmon
runs remain independent of sea lions were killed in a given year.
Killing sea lions wastes time and money and lives and does little to
benefit the salmon. But we are also concerned that this bill has less
apparent dangers inherent in its language. It would sacrifice public
involvement and transparency in the name of speed. It sets a dangerous
precedent of exempting a controversial wildlife management program from
NEPA analysis. It also sets the stage for a return to the vigilante
action against sea lions that existed prior to the 1972 passage of the
MMPA when the states employed professional shooters in the river and
members of the public killed seals and sea lions out of frustration or
for sport. We oppose H.R. 946 and urge you to vote against it.
______
Dr. Fleming. Well, I thank, Ms. Young, for your testimony,
and I thank all of our witnesses today for your testimony. I
now recognize myself for five minutes for questions. We will
begin questions from the panel, and ask for your responses.
Mr. Lecky, are California sea lions at their optimum
sustainable population levels as defined in the Marine Mammal
Protection Act?
Mr. Lecky. Yes, they are.
Dr. Fleming. Does reaching this level allow the Agency to
take management actions that it couldn't take if the population
was below this level?
Mr. Lecky. Yes, it does.
Dr. Fleming. Would you elaborate on that any?
Mr. Lecky. Well, if a population is below OSP, there are
limitations on the amount of take that can be authorized. The
provisions for authorizing take incidental to other activities
are diminished as a result of a depleted status.
The mechanisms for a directed take are likewise more
complicated to get through if they are depleted. The measures
of Section 120 also are not available to animals that are in a
depleted state.
Dr. Fleming. OK. Again, back to Mr. Lecky, should Congress
amend the Marine Mammal Protection Act to change the safeguards
under the law based on the size of the species population?
Mr. Lecky. Well, yes. We believe that there should be some
consideration of measures to deal with robust pinniped
populations, particularly in situations like this where they
are affecting and impeding the recovery of threatened and
endangered species.
Dr. Fleming. OK. Thank you. In the Humane Society's written
testimony, Ms. Young raised the concern that any allowances for
a lethal take will lead to a, quote, form of vigilante
response, to removing sea lions.
Mr. Brown, Mr. Lewis, and Mr. Norman, do State or Tribal
management practices allow for such a vigilante removal of the
animals?
Mr. Brown. Mr. Chairman and Members of the Committee, no,
both the States of Oregon and Washington have statutes that
prohibit harassment, hunting, and killing of animals that is
not provided for under State statutes for hunting or harvest,
and that is the case with marine mammals. They are protected by
State law.
And animals are shot by individuals on occasion and have
been for as long as I have been working in this area, and it is
not anything particularly new. It is illegal and cases are
brought by State and Federal law enforcement officers whenever
possible.
Dr. Fleming. Mr. Norman.
Mr. Norman. Mr. Chairman and Members of the Committee, the
Washington State statute requires the Department of Fish and
Wildlife to protect and sustain healthy fish and wildlife
populations. Marine mammals are part of that mandate, and so
any activity associated with trying to preserve salmon through
managing predation would require that we continue to honor that
particular statute.
Dr. Fleming. Mr. Lewis.
Mr. Lewis. Thank you, Mr. Chairman. Under the Yakama
Nation's law, we do not have a law that prohibits the taking of
California sea lions, although we abide by the Marine Mammal
Protection Act.
We remind our fishermen that you are not to harm the
animals in any way. We have our law enforcement, which is also
out on the water patrolling, and we make sure and monitor that
our fishermen do not harm the sea lions in any way. Thank you,
Mr. Chairman.
Dr. Fleming. OK. Well, then I will turn to Ms. Young given
that testimony. Specifically, how would H.R. 946 lead to a
vigilante styled removal of marine mammals?
Ms. Young. I think when the task force was meeting, we had
a member of the Oregon Stranding Network address us, and one of
the things that she talked about was that once lethal taking
authority had been given to the States, even though it was
being done by trapping, the number of the incidents of shot sea
lions jumped dramatically, because the public saw this as
somehow a warrant if you will on sea lions eating fish.
And certainly there were a number of highly publicized
incidents of multiple animals washing in shot and dead, and I
think that right now the States have not exercised the ability
to shoot animals, though they were granted that ability.
However, my concern is that if shooting is to begin, and it
is being done by more than uniformed State personnel, and it is
being done by tribal personnel, and a variety of other folks
who may not be readily identifiable by the public as officials,
people may see this somehow as, well, gee, that guy saw him
take a fish, and shot him, and so here is one coming after my
fish, and maybe I have the right to do that, too.
And I think that is a lot more difficult to determine who
is and who is not allowed to shoot sea lions when you have a
wide variety of people out there who----
Dr. Fleming. My time is limited, and I hate to interrupt
you, but you would say someone who is uniformed, you would have
confidence then, and you would feel that it would be OK to use
lethal force?
Ms. Young. I am not saying that it is necessarily OK,
because I don't believe that you need to kill sea lions to
protect salmon, but it is certainly true that it is easier for
the public to determine who is or is not allowed to do it.
Dr. Fleming. OK. Thank you. All right. My time has ended,
and I will yield to the Acting Ranking Member for five minutes
for questions.
Ms. Bordallo. Thank you very much, Mr. Chairman. I would
like to ask for unanimous consent to enter into the record a
statement in opposition to H.R. 946 submitted by the
International Fund for Animal Welfare.
Dr. Fleming. Without objection so ordered.
[The letter from the International Fund for Animals
submitted for the record follows:]
Ms. Bordallo. My first question is to Mr. Lecky, and in
the interest of time, if you could please answer yes or no to
the following questions. Is the number of California sea lions
this year at Bonneville Dam the lowest since 2002?
Mr. Lecky. I believe that is true.
Ms. Bordallo. So it is a yes?
Mr. Lecky. Yes.
Ms. Bordallo. Is the present percentage of endangered
salmon consumed by California sea lions at Bonneville Dam this
year the lowest since 2003?
Mr. Lecky. No, it is not.
Ms. Bordallo. Well, according to the May 27 status report
from the Army Corps of Engineers, California sea lions consumed
only 1.4 percent of the run this year, which is the lowest
percentage since 2003.
The next question is are there other threats to endangered
salmon aside from predation by sea lions?
Mr. Lecky. Yes.
Ms. Bordallo. Do pesticides such as the ones that were
evaluated in NMFS's for 2008, 2009, and 2010, biological
opinions jeopardize juvenile salmon?
Mr. Lecky. Yes.
Ms. Bordallo. Are buffers and limitations on aerial
applications during windy conditions reasonable methods to
protect salmon and prevent pesticides from getting into our
streams?
Mr. Lecky. I will give you a conditional yes. In certain
circumstances that is true.
Ms. Bordallo. And the last one is has the EPA incorporated
these methods to protect salmon in their registration of these
pesticides?
Mr. Lecky. Not so far.
Ms. Bordallo. So the answer is no.
Mr. Lecky. Ms. Bordallo, may I qualify that?
Ms. Bordallo. Yes.
Mr. Lecky. So the EPA does have restrictions on
applications of pesticides according to their labels. We have
asked them to implement additional restrictions in our
biological opinions. Those additional restrictions have yet to
be implemented.
Ms. Bordallo. Thank you. Ms. Young, in 2008, the NMFS
authorized the States to kill the lesser of either 85 sea lions
per year or the number required to reduce predation to one
percent of the salmon run at Bonneville Dam.
This year the Army Corps of Engineers reported that
California sea lions only consumed 1.4 percent of the salmon
run this year. Has this 2008 goal essentially been obtained?
Ms. Young. If you round 1.4 percent to the lowest or
closest whole number that would be one percent, and so it would
appear so.
Ms. Bordallo. Has H.R. 946 exempted the killing of sea
lions from review under the National Environmental Policy Act,
and can you elaborate on your concerns with this exemption?
Ms. Young. Well, as I said, my concern is that that Act is
a very important part of sharing public involvement, and the
consideration of a variety of alternatives, and exempting it
from that really leads to an expedited process that excludes
the public.
Ms. Bordallo. And last year 14 sea lions were euthanized,
and about 70 percent of sea lions seen at the Bonneville Dam
had not been previously identified. So does killing some sea
lions deter other sea lions from consuming salmon at the
Bonneville Dam?
Ms. Young. I don't believe so. I think that the Corps
reports around 80 sea lions a year at the dam and, on any given
day, there are only about 20-something of them. So they come
and go, and replace one another.
Ms. Bordallo. And then my final question is are the
provisions in this bill specific enough to reasonably confine
sea lion killings to individuals most impacting endangered
salmon near the Bonneville Dam?
Ms. Young. I don't believe so.
Ms. Bordallo. All right. Thank you, Mr. Chairman. I yield
back my time.
Dr. Fleming. I thank the gentle lady. Next, I would call
upon the Chairman of The Committee, Mr. Hastings, from
Washington.
Mr. Hastings. Thank you very much, Mr. Chairman. Mr. Lecky,
let me ask you first. I mentioned in my opening statement and
acknowledged that NOAA had formed a task force of scientists in
December, and in their report they said, and I quote directly,
under the current Section 120 as authorized under the Marine
Mammal Protection Act, the task force finds that the current
program has not been effective in allowing the authorization to
be fully implemented, nor reducing predation on listed salmon
to less than one percent.
I am assuming that this led to your decision to come to
support this bill. Is that a correct assumption?
Mr. Lecky. Yes, sir, that is a contributing factor.
Mr. Hastings. As a contributing factor. OK. And other
factors would be what?
Mr. Lecky. Well, it has been our experience in implementing
Section 120 more broadly.
Mr. Hastings. OK. Mr. Norman, I am to understand that you
were on that task force; is that correct?
Mr. Norman. Yes, I was.
Mr. Hastings. And on that task force, my understanding is
that the vote was 17-to-1 to endorse what I just read. Is that
correct?
Mr. Norman. That is correct.
Dr. Fleming. That is correct? OK. Mr. Lecky, I want to ask
you a question. I know that the States of Washington, and
Oregon, and Alaska, as well as some Columbia River tribes, have
written and petitioned NOAA to delist the Eastern population of
the stellar sea lions. Has is that coming?
Mr. Lecky. Well, we did receive those petitions. We
formally accepted then in December, and initiated status
reviews. Those will be completed in August of this year.
Mr. Hastings. In August of this year?
Mr. Lecky. Yes.
Mr. Hastings. OK. There has been a reference by several of
you to the California sea lions, and as to their activity in
the Bonneville Dam. So the focus then is probably on the
California sea lion.
Mr. Brown, I think in your testimony, and if others can
confirm this, either confirm or correct me, but my
understanding is that the California sea lion is not indigenous
to the Columbia River. Is that correct?
Mr. Brown. That is correct. Professor Lee Lyman has done
extensive work looking at the archeological and anthropological
record in kitchen mittens and remains of tribal usage areas,
and there are no bones of California sea lions.
There is clear evidence that harbor seals were in the area
and taken, and an occasional stellar sea lion, but not
California sea lions. If I might take on extra minute to
suggest that this discussion of the percentage of the run taken
by sea lions is not a good measure of what the problem is.
Mr. Hastings. I will get to that later. I am aware of that.
Mr. Brown. Thank you.
Mr. Hastings. Mr. Norman, would you confirm what Mr. Brown
just said as far as the indigenous factor of California sea
lions?
Mr. Norman. Yes, I would support that.
Mr. Hastings. And Mr. Lecky?
Mr. Lecky. Well, I actually am unclear on whether there are
records of sea lions----
Mr. Hastings. Well, we have testimony that it is, and so
regardless of the number then, you are talking about a number
of animals that are feasting on endangered salmon that are not
indigenous to the area that we are talking about and the focus
of what this bill is.
I mean, that seems to me regardless of how you want to
measure this. Mr. Brown, you mentioned of course the percentage
has gone down because the runs have gone up, and in that
regard, I do want to ask Ms. Young, because in your written
statement, you made that observation, that in fact the
percentage has gone down, and so therefore it shouldn't be an
issue.
Yet, the number that has been documented is 6,000 salmon.
So my question to you is how many salmon being eaten in raw
numbers, and no pun intended, but in raw numbers, would cause
concern to the Humane Society as far as those being eaten by
sea lions?
Ms. Young. I don't know that I can answer with a whole
number. I do know that----
Mr. Hastings. Well, wait. I am asking you directly to
answer with a whole number because you were suggesting that it
is immaterial when you look at the percentage of runs. Yet,
there are 6,000 that are documented.
You must have a position on how many would endanger the
whole threatened run, and if you don't, then I think that is
pretty significant.
Ms. Young. Since the run size fluctuates the percentage is
going to fluctuate, and it is the percentage that is the most
important.
Mr. Hastings. The percentage is what is the most important?
Ms. Young. Yes.
Mr. Hastings. Going back then to, and I think it was Mr.
Brown who said earlier, or maybe it was Mr. Norman, if we had
handled this issue and addressed this earlier, we would have
mitigated the problem in the long term. Who was that, Mr.
Brown, or--well, Mr. Brown, would you elaborate on that then,
please.
Mr. Brown. Yes. Unfortunately, it is the Catch-22 form of
Section 120 as currently written. You can't do anything until
you have a huge problem, and once you have a huge problem, it
is very expensive and difficult to deal with.
Had we been able to move in 2002 and take out the first two
or three sea lions that showed up, and then three or four the
next year, and one or two the following year, and so on for any
number of years, we probably would have removed far fewer sea
lions and definitely saved many more thousands of salmon.
And I would suggest respectfully that the percentage of the
run taken is not important. We are very lucky to have great run
sizes over the past few years, but not too long ago, we had a
run of only 86,000 fish.
And five or 6,000 out of that run is very significant. The
number of salmon taken by these predators has gone up every
year since the study began.
Mr. Hastings. In raw numbers, thank you. My time is way
over and thank you very much.
Dr. Fleming. I thank The Chairman. Next up, we have Mr.
Southerland from Florida. You have five minutes, sir.
Mr. Southerland. Thank you, Mr. Chairman. I am from
Florida, and so this is--I ask for a little understanding while
I try to get my hands around something that we don't have to
deal with.
But my questions are to Mr. Norman, Mr. Brown, and Mr.
Lewis. Are there any new nonlethal techniques currently being
tested that could prove more successful in deterring sea lions
predation than existing techniques?
Mr. Brown. Chairman Fleming and Member Southerland, we have
been working with nonlethal deterrence methods on seals and sea
lions around fish pens, fishing nets, streams, and things, for
the 35 years that I have been working on this issue.
One of the most recent, and if you consider it that,
development was the use of acoustic devices that produced a
loud sound in the middle of the hearing range of pinnipeds that
presumably was going to be irritating.
That system has been around for 20 years or more, and while
it disturbs animals initially, they very quickly learn to avoid
it. There has been some talk about some other things--
electrical barriers--which have proven to have negative impacts
on fish, and cannot be used in areas where ESA listed fish
occur.
So the short answer is, no, we are not aware of any new
nonlethal measurements that have been identified or under
development for use. One thing to remember is that these
California sea lions are very--they are survivors. They learn
very quickly. They are highly adaptable.
And there is really nothing short of removing these animals
that we know of today that would prevent them or eliminate the
drive that they have to go to these places and consume these
fish.
Mr. Southerland. Mr. Norman, maybe this is a question for
you. What are the numbers? I mean, I know that we are talking
about percentages, but what are the numbers that need to be
removed in a given year?
And just a ballpark number. It does not have to specific. I
am just trying to get an understanding of how many are we
talking about here?
Mr. Norman. In terms of removal of sea lions?
Mr. Southerland. Yes.
Mr. Norman. I think that actually it is not an exact
number.
Mr. Southerland. I am not asking for exact.
Mr. Norman. But certainly enough to reduce or stop the
increase, and reduce the problem.
Mr. Southerland. Remember that there is not a bad answer
here. So I am trying to get an idea of the number. I mean, are
we talking 50, or are we talking 500? Are we talking 5,000? I
am just trying to understand the issue.
Mr. Norman. Well, right now the current authority limits it
to 85 per year.
Mr. Southerland. OK.
Mr. Norman. And I think something less than that would be
adequate.
Mr. Southerland. OK. So we are not talking thousands or
hundreds? I mean, I am just trying to understand.
Mr. Norman. Right.
Mr. Southerland. Also, and I understand, but give me an
idea. These are all majority the male, and these are not
female. Am I correct in that?
Mr. Norman. Yes, that is correct.
Mr. Southerland. OK. I mean, I understand. I am a hunter
from the South, and we understand if you want to thin a herd,
we have programs where we shoot does. That is understandable.
So that is not obviously a thing that we can do here because
you are obviously dealing with males that are coming.
I will say this. It seems like you have done the science on
this, OK? One of the things that I have clearly been frustrated
with has been--and Mr. Lecky, this is something that you can
maybe address, but I have been continually frustrated in the
five or six months that I have been here at our ability to find
the science that we need to solve the problems that we want to
solve, but if there are problems that we don't want to solve,
we can't find the science.
And I just have to tell you that I am looking at what you
are doing here, and what my people are fighting for regarding
the red fish, which are absolutely hammering the crab
population in the bays and estuaries where I live, and in
little communities that have five, and six, and seven crab
houses, are down to one, OK?
And yet we are very interested in talking about the salmon,
and yet we are not interested in talking about the crabs. So I
would really like to see some consistency in other species, and
not pick and choose one over the other.
I am burdened sometimes when we are far more concerned
about certain species than we are in these family owned
businesses that are four, and five, and six year old
generational businesses that are not living extravagantly by
any means, OK?
They are holding their boats together with duct tape and
baling wire, and so I would really like some consistency. I
mean, I can't disagree with your testimony today, but I can
sometimes disagree with how we apply these principles to
various species around the lands and waters that we oversee. I
yield back.
Dr. Fleming. The gentleman's time has ended, and he has
yielded back. Well, I want to compliment our witnesses on some
excellent testimony, and responses.
Mr. Hastings. Mr. Chairman, I ask unanimous consent that
the testimony of Mr. Billy Frank, who is the Chairman of the
Northwest Indian Fishing Commission, be entered into the
record. He is in support of this legislation, and I forgot to
do that at the outset. So I ask unanimous consent that his
testimony be part of the record.
Dr. Fleming. Thank you, sir, and without objection, so
ordered.
[The statement of Mr. Frank submitted for the record
follows:]
Statement submitted for the record by Billy Frank, Jr., Chairman,
Northwest Indian Fisheries Commission
Mr. Chairman and other Honorable Members of the Subcommittee, thank
you for the opportunity to provide written testimony regarding H.R.
946. My name is Billy Frank, Jr., Chairman of the Northwest Indian
Fisheries Commission (NWIFC). The NWIFC is comprised of the twenty
treaty tribes party to the United States vs. Washington (U.S. vs.
Washington).
We are pleased that the House Natural Resources Subcommittee on
Fisheries, Wildlife, Oceans and Insular Affairs is considering this
bill that would amend the Marine Mammal Protection Act (MMPA) to reduce
predation on endangered Columbia River salmon. Although this bill is
focused on the California sea lions preying on Columbia River salmon,
we want to ensure that any amendments to the MMPA won't have an adverse
affect on the Washington coast and Puget Sound. We generally support
H.R. 946. On behalf of our 20 member tribes, I would like to submit the
following comments to the bill that are important in meeting the needs
of our tribes.
SUMMARY OF COMMENTS TO H.R. 946
Support the development of legislation to address the
problem of marine mammal predation on ESA-listed fish and other
listed species.
Recommend inclusion of a treaty rights savings
clause.
Support the testimony being provided by the Columbia
River Inter-Tribal Fish Commission.
TRIBES, TREATY RIGHTS AND TRUST OBLIGATIONS
OF THE FEDERAL GOVERNMENT
Indian tribes have always inhabited the watersheds of western
Washington, with cultures based on harvesting fish, wildlife, and other
natural resources in the region. In the mid-1850s, a series of treaties
were negotiated between the federal government and the tribes in the
region. Through the treaties, the tribes ceded most of their land, but
in doing so, reserved certain rights to fish, hunt and gather to
protect their way of life.
The promises of the treaties were quickly broken in the decades
that followed as the tribes were systematically denied their treaty-
protected rights by the State of Washington. In 1974, the tribes won a
major victory in U.S. vs. Washington (also commonly referred as the
Boldt Decision), which reaffirmed their treaty-protected fishing
rights. The ruling, which has been upheld by the U.S. Supreme Court,
recognized the tribes as co-managers of the resource and determined
they were entitled to 50 percent of the harvestable number of salmon
returning to Washington State waters. More recent federal court rulings
and solicitor opinions upholding treaty-reserved rights have further
expanded the role and responsibilities of the tribes as natural
resource managers. Those rulings, combined with the interconnectedness
of all natural resources, mean that tribal participation is essential
in nearly all aspects of natural resource management in the region.
The tribes from the Pacific Northwest have stepped forward and have
embraced co-management. They developed sophisticated natural resource
programs designed to protect and enhance their treaty rights. Tribal
programs, based on deep cultural and philosophical underpinnings, have
served as the backbone of salmon recovery, providing the technical,
policy and legal framework for this incredibly difficult task. Tribes
perform complicated harvest, hatchery and habitat management tasks that
neither the state nor the federal government can effectively carry out.
It is because of the role the tribes play in protecting their rights
that they continue to protect and preserve the species to which they
have harvestable rights to for future generations.
JUSTIFICATION OF COMMENTS TO H.R. 946
Support the development of legislation to address the
problem of marine mammal predation on ESA-listed fish and other
listed species.
Western Washington tribes have always successfully and respectfully
coexisted with California sea lions, harbor seals, and other marine
mammals. Tribal members harvested them for their skins, oil, flesh, and
bone. When necessary, tribal members also killed marine mammals that
interfered with their fishing. Marine mammals were part of an ecosystem
where humans (and orca) were the top predators. Unfortunately, this
balance has been undone in a number of ways--most recently by the
Marine Mammal Protection Act--with the current result being an
ecosystem teeming with California sea lions and harbor seals that
consume ESA-listed salmon as part of their diet and directly interfere
with the tribes' abilities to exercise their treaty reserved fishing
rights. The balance needs to be restored. Consequently, the NWIFC
strongly supports the provision in H.R. 946 calling for development of
a report on legislation addressing marine mammal predation on ESA-
listed fish species.
Recommend inclusion of a treaty rights savings
clause.
The tribes' treaties with the federal government were concluded at
a time when salmon, tribal members and marine mammals successfully
coexisted. These treaties form the foundation of the tribes' culture
and incorporate a conservation obligation that supports laws governing
the protection and use of resources. The NWIFC strongly recommends
inclusion of treaty rights savings language such as that recommended by
the Columbia River Inter-Tribal Fish Commission and already included in
the Northwest Power Act, 16 U.S.C. 839g (e).
``Nothing in this chapter shall be construed to affect or
modify any treaty or other right of an Indian tribe.''
CONCLUSION
In conclusion, the treaties reflect the United States' commitments
to preserve our physical, cultural and economic livelihood and it is
vitally important to the Commission's member tribes that these
commitments remain steadfast. Mr. Chairman, and Members of the
Subcommittee, we appreciate the time that you provided us to comment on
this very important piece of legislation. We also want to acknowledge
the Subcommittee in recognizing and providing a forum in our
government-to-government relationship in addressing an issue that
affects us all. We believe that the management work that we perform to
protect our valuable resources benefits the entire region. It is
because of this, we also support the recommended changes to the bill
that are being proposed by the Columbia River Inter-Tribal Fish
Commission.
Thank you again, Mr. Chairman and members of the Subcommittee, for
this opportunity to provide written testimony.
______
Dr. Fleming. Once again, I thank all our witnesses for a
great job today. I would like to thank our witnesses not only
for their valuable testimony, but their time today. Other
Members of the Subcommittee may have additional questions for
the witnesses, and we ask you to respond to these in writing.
The hearing record will be open for 10 days to receive
these responses. Finally, I want to thank Members and staff for
their contributions to this hearing. If there is no further
business, without objection, this Subcommittee stands
adjourned.
[Whereupon, at 11:04 p.m., the Subcommittee was adjourned.]