[House Report 106-916]
[From the U.S. Government Publishing Office]



106th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     106-916

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



 
     REGULATIONS FOR HUNTING SEASONS FOR DOUBLE-CRESTED CORMORANTS

                                _______
                                

 September 29, 2000.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

  Mr. Young of Alaska, from the Committee on Resources, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 3118]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Resources, to whom was referred the bill 
(H.R. 3118) to direct the Secretary of the Interior to issue 
regulations under the Migratory Bird Treaty Act that authorize 
States to establish hunting seasons for double-crested 
cormorants, having considered the same, report favorably 
thereon without amendment and recommend that the bill do pass.

                          PURPOSE OF THE BILL

    The purpose of H.R. 3118 is to direct the Secretary of the 
Interior to issue regulations under the Migratory Bird Treaty 
Act that authorize States to establish hunting seasons for 
double-crested cormorants.

                  BACKGROUND AND NEED FOR LEGISLATION

    Double-crested cormorants (Phalacrocorax auritus) are 
large, greenish-black colonial waterbirds that have been 
protected under the Migratory Bird Treaty Act since 1972. There 
are about 30 species of cormorants worldwide, including six in 
North America, of which the double-crested cormorant is the 
most common. Their diet consists almost entirely of fish. The 
average cormorant weighs about 4.2 pounds and is capable of 
consuming about 25 percent of its weight each day in fish. The 
double-crested cormorant is found throughout much of North 
America at some time during the year. Cormorants nest from 
southwest Alaska, central Alberta and James Bay south to the 
Gulf of Mexico. Most cormorant populations migrate from 
northerly breeding grounds south to the Gulf of Mexico, but 
populations in Florida and much of the Pacific coast are 
resident year-round. Cormorants are gregarious, and almost 
always nest and roost in colonies close to a convenient food 
supply.
    Called ``duck-crows'' by early settlers, cormorant 
populations have undergone dramatic changes over the last three 
decades. Cormorant populations crashed during the 1960s and 
1970s, as a result of widespread use of toxic chemicals such as 
DDT and PCBs. DDT and its biological breakdown-products have 
been linked to reproductive failure and eggshell thinning in 
many species of birds, while PCBs have been linked to 
deformities. PCBs and DDT are persistent, fat soluble chemicals 
that accumulate in the food chain. Predators such as fish-
eating cormorants concentrate these chemicals by consuming 
large quantities of contaminated fish. By 1973, cormorant 
nesting pairs decreased by 86 percent in the Great Lakes, from 
approximately 900 in the early 1950s to 125 in 1973. The 
cormorant disappeared on Lakes Michigan and Superior, and only 
about 10 pairs remained on Lake Ontario. Populations in other 
parts of the United States suffered a similar decline.
    Cormorant populations recovered significantly following the 
banning of the sale of DDT and other persistent organic 
pollutants. Registration of all DDT products was discontinued 
in 1985. However, sales of existing stocks were allowed until 
December 31, 1990. Since 1990, the cormorant nesting population 
on the Great Lakes has increased to more than 93,000 pairs. The 
cormorant is now more numerous on the Great Lakes than at any 
time in recorded history. Likewise, populations in other areas 
have seen tremendous increases. The total population of double-
crested cormorants in the U.S. and Canada is now estimated to 
be more than one million birds. The decline in contaminant 
levels since the 1970s is not the only factor that has allowed 
cormorant populations to increase at such a rapid rate. 
Scientists believe that increasing numbers of smaller fish, 
such as smelt and alewife in the Great Lakes, contributed to 
the bird's rapid population growth. In recent years, the rate 
of growth in the cormorant population of the Great Lakes 
appears to have slowed as a result of outbreaks of disease and 
a limited food supply.
    Despite a slower growth rate, the existing large 
populations of cormorants have created conflicts between the 
birds, other wildlife and humans throughout the United States. 
Their ability to consume large quantities of fish is believed 
to affect sport fish populations and displace other waterbirds, 
such as herons and gulls. At aquaculture facilities, cormorants 
can consume large quantities of fish before they are ready for 
market. Their propensity to roost in large flocks and deposit 
large amounts of excrement in a single location has been cited 
for killing trees and other vegetation. Cormorants have also 
been blamed for creating ``toxic islands'' from the 
accumulation of their excrement in areas around the Great Lakes 
where they frequently roost.
    The impacts of cormorant populations on sport fish in the 
Great Lakes and other areas is not completely understood. 
Anglers and some scientists believe that in addition to eating 
young sport fish such as bass, lake trout, and Pacific salmon, 
cormorants compete with these fish in the Great Lakes for prey 
species such as smelt and alewife. Fishermen, resort owners, 
fish farmers, lakefront property owners, and others along the 
Mississippi River and the Great Lakes are calling for cormorant 
population reductions. Many natural resource managers believe 
that cormorants generally have only a minor impact on sport 
fish populations, but they recognize that cormorants may have a 
significant impact on sport fish populations in localized areas 
where fish or cormorants are concentrated in high densities, 
such as hatchery release sites and spawning areas. Research 
conducted by the New York State Department of Environmental 
Conservation (NYDEC) and the U.S. Geological Survey's 
Biological Research Division in 1998 established a link between 
cormorants and smallmouth bass in the eastern basin of Lake 
Ontario. The findings of this research suggested that excessive 
mortality of smallmouth bass occurred after the cormorant 
population exceeded 1,500 breeding pairs.
    Despite the uncertainty of cormorant populations on sport 
fisheries, cormorants have severe economic consequences on 
private aquaculture producers, particularly catfish farmers 
along the southern portion of the Mississippi River. Losses due 
to cormorant predation have been estimated to reach 3 to 7 
percent of the catfish crop each year. Catfish farmers each 
spend thousands of dollars annually to harass and repel 
cormorants from their ponds. Several methods are available to 
alleviate depredation of cormorants on fish stocks, including 
nonlethal harassment, roost dispersal, oiling eggs to prevent 
hatching and other forms of lethal control. Nonlethal 
harassment techniques are widely used to move or deter 
cormorants from a particular area, but eventually the birds 
become habituated to the techniques, rendering them ineffective 
at preventing depredation on fish stocks. In such cases, lethal 
control may be necessary to supplement and enhance nonlethal 
control methods.
    Since cormorants are protected by the Migratory Bird Treaty 
Act, their nests and eggs cannot be disturbed and birds cannot 
be captured or killed unless a depredation permit is obtained 
from the U.S. Fish and Wildlife Service (USFWS). Since 1972, 
USFWS has issued depredation permits to individual fish farmers 
on a case-by-case basis to control cormorant populations. In 
1988, USFWS issued a Depredation Order permitting the take of 
double-crested cormorants at aquacultural facilities and State-
operated hatcheries without a permit in 13 States, provided 
that lethal controls are used in conjunction with a nonlethal 
harassment program certified by the U.S. Department of 
Agriculture Wildlife Services. The Depredation Order applies to 
Alabama, Mississippi, Arkansas, Louisiana, Minnesota, Florida, 
Georgia, Kentucky, North Carolina, Oklahoma, South Carolina, 
Tennessee and Texas. In some of these States, a State 
depredation permit is still required. Aquaculture facilities 
outside these States need to apply for a depredation permit 
from the USFWS on a case-by-case basis to implement a lethal 
control program. Between 1994 and 1999, USFWS issued 1,479 
depredation permits. Including cormorants harvested under the 
Order, the number of cormorants taken annually in each State 
has had no detectable effect on subsequent wintering 
populations.
    Earlier this year, NYDEC issued a draft environmental 
impact statement (DEIS) with recommended alternatives for 
managing cormorants in the eastern basin of Lake Ontario, 
including lethal removal and nest suppression. The comment 
period for the DEIS closed on April 12, 2000. Implementation of 
the recommended alternative will require approval of the USFWS, 
which has the authority to regulate the harvest of birds under 
the Migratory Bird Treaty Act. Currently, there is no 
established hunting season for cormorants. The harvest of 
cormorants is strictly controlled by the USFWS through the use 
of depredation permits and the Depredation Order. USFWS issued 
permits to the States of Vermont and New York in 1999 allowing 
the oiling of eggs to protect avian and plant diversity on 
cormorant nesting islands.
    It is unclear when the USFWS will issue its final 
regulations on the management of double-crested cormorants. 
This legislation is an interim solution to address this out-of-
control population problem. It does not interfere in any way 
with the completion of the Draft Environmental Impact Statement 
which the USFWS will publish on this issue.

                            COMMITTEE ACTION

    H.R. 3118 was introduced on October 20, 1999, by 
Congressman John M. McHugh (R-NY). The bill was referred to the 
Committee on Resources, and within the Committee to the 
Subcommittee on Fisheries Conservation, Wildlife and Oceans. On 
May 11, 2000, the Subcommittee held a hearing on the bill. In 
his testimony, Mr. Daniel M. Ashe of the USFWS stated that 
``the Service does not oppose the idea of establishing a 
hunting season on double-crested cormorants.'' On July 20, 
2000, the Subcommittee met to consider H.R. 3118. There were no 
amendments offered and the bill was reported favorably to the 
full Resources Committee by voice vote. On September 20, 2000, 
the full Resources Committee met to consider the bill. There 
were no amendments and the bill was ordered favorably reported 
to the House of Representatives by voice vote.

            COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Resources' oversight findings and recommendations 
are reflected in the body of this report.

                   CONSTITUTIONAL AUTHORITY STATEMENT

    Article I, section 8 of the Constitution of the United 
States grants Congress the authority to enact this bill.

                    COMPLIANCE WITH HOUSE RULE XIII

    1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(3)(B) 
of that rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    3. Government Reform Oversight Findings. Under clause 
3(c)(4) of rule XIII of the Rules of the House of 
Representatives, the Committee has received no report of 
oversight findings and recommendations from the Committee on 
Government Reform on this bill.
    4. Congressional Budget Office Cost Estimate. Under clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for this bill from Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 27, 2000.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3118, a bill to 
direct the Secretary of the Interior to issue regulations under 
the Migratory Bird Treaty Act that authorize states to 
establish hunting seasons for double-crested cormorants.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Deborah Reis.
            Sincerely,
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).
    Enclosure.

H.R. 3118--A bill to direct the Secretary of the Interior to issue 
        regulations under the Migratory Bird Treaty Act that authorize 
        states to establish hunting seasons for double-crested 
        cormorants

    H.R. 3118 would direct the Secretary of the Interior to 
issue regulations authorizing states to establish hunting 
seasons for double-crested cormorants. CBO estimates that 
implementing H.R. 3118 would have no significant impact on the 
federal budget. Within six months of the bill's enactment, the 
U.S. Fish and Wildlife Service would have to issue regulations 
under the Migratory Bird Treaty Act to carry out the 
legislation, but this would involve minimal expense.
    The bill would not affect direct spending or receipts; 
therefore, pay-as-you-go procedures would not apply. H.R. 3118 
contains no intergovernmental or private-sector mandates as 
defined in the Unfunded Mandates Reform Act and would impose no 
costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Deborah Reis. 
The estimate was approved by Peter H. Fontaine, Deputy 
Assistant Director for Budget Analysis.

                    compliance with public law 104-4

    This bill contains no unfunded mandates.

                preemption of state, local or tribal law

    This bill is not intended to preempt any State, local or 
tribal law.

                        changes in existing law

    If enacted, this bill would make no changes in existing 
law.

                            DISSENTING VIEWS

    The double-crested cormorant is a non-game, colonial 
nesting bird protected since 1972 under the Migratory Bird 
Treaty Act (MBTA, 16 U.S.C. 703-712). The majority claims that 
a resurgent double-crested cormorant population is solely 
responsible for declining sport fisheries throughout the bird's 
original and expanded range. They stress that the U.S. Fish and 
Wildlife Service (the Service) has ignored this problem for 
years and declined to take appropriate action to control 
cormorant depredation and other impacts. The only recourse 
acceptable to the majority is to amend the MBTA to authorize 
the Secretary of the Interior to issue regulations to allow the 
State to establish regulated hunts in order to cull the double-
crested cormorant population, and theoretically, restore 
depleted sport fish stocks.
    Unfortunately, this summation is a convenient 
simplification of the issue. H.R. 3118 is a flawed remedy not 
grounded in biological science, but based primarily on the 
speculation of sport anglers and outfitters. A broad-based hunt 
for double-crested cormorant would likely be both wasteful and 
ineffective, and we are deeply concerned that H.R. 3118 would 
purposely undermine the National Environmental Policy Act 
(NEPA) process as it applies to the protection and management 
of other non-game bird species listed under the MBTA.
    We acknowledge that the double-crested cormorant population 
has recovered from its precarious status in the early 1970s and 
that now this species has re-colonized its historic range 
throughout much of coastal and interior North America. We also 
note that human activities (e.g., sport fish stocking, 
aquaculture and catfish farming, reduced use of pesticides and 
other toxic substances, habitat enhancement, etc.) have 
contributed significant towards the restoration of this 
population by creating favorable environmental conditions. As a 
result, some double-crested cormorant colonies may be perceived 
as nuisances in certain geographic areas of the United States, 
notably in the southeast and in the Great Lakes region.
    However, the consensus of wildlife biologists, as 
demonstrated in surveys and the scientific literature, strongly 
refutes the majority's principal argument. The reality, as 
expressed in the 1999 scientific paper, Double-crested 
cormorant Impacts on Sport Fish: Literature Review, Agency 
Survey, and Strategies, is that [cormorant] depredation ``in 
most natural situations has a minor impact on commercial or 
sport fish populations.'' Investigations of [cormorant] stomach 
contents indicate that fish species of value by commercial or 
sport anglers generally make up a very small proportion of a 
double-crested cormorant's diet, usually less than 3 percent in 
natural conditions. In fact, the amount of game fish consumed 
by double-crested cormorants has been found to be generally 5 
percent of the total quantity caught by commercial and sport 
anglers. The report concludes by stating that ``a strategy of 
reducing cormorant populations to benefit sport fish 
populations is biologically unwarranted.''
    Also, contrary to the majority's assertions, the Service 
has taken actions to address nuisance double-crested cormorant 
depredation; especially depredation affecting catfish farms and 
other aquaculture operations in the southeastern United States. 
In 1986, the Service, in coordination with other Federal 
agencies and the States, began to issue depredation permits to 
allow the take of double-crested cormorants at aquaculture 
facilities where there were documented economic impacts. 
According to 1997 data, as of 1993-1994 close to 2,300 
depredation permits had been issued by the Service which 
resulted in an annual take of approximately 8,200 cormorants 
per year. And in 1998, the Service issued a broad depredation 
order to allow catfish farmers and other commercial 
aquaculturalists in 13 States to take double-crested cormorant 
impacting their operations. The Service estimated that this 
standing order could produce an annual take of up to 92,000 
cormorants, or roughly 10 percent of the continental population 
of the species if aggressively implemented by the State, the 
aquaculture industry and the U.S. Department of Agriculture 
Wildlife Services program.
    Most recently, on November 8, 1999, the Service published a 
Notice of Intent to prepare an Environmental Impact Statement 
(EIS) and national management plan for double-crested 
cormorants. This action was intended to address various impacts 
caused by population and range expansion of the bird in the 
contiguous United States. The EIS is expected to identify and, 
where possible, quantify impacts caused by increasing cormorant 
populations. The EIS is also expected to suggest management 
strategies to resolve such conflicts and identify factors 
needed to justify the implementation of control measures. Over 
1,450 comments were received during the public scoping period 
which ended on June 30, 2000. The Service expects to release 
its draft EIS for public review in November, 2000. The EIS will 
provide the requisite scientific analysis necessary to develop 
a comprehensive management strategy, including consideration of 
non-lethal control alternatives other than a regulated hunt 
that are more focused, less wasteful, and genuinely helpful 
towards the restoration of sport fisheries. We also not that 
the EIS could include recommendations for new depredation 
control activities. But at least in this instance, such 
proposals would be based on science and targeted to the areas 
that need action.
    Simply because double-crested cormorants, as a small part 
of their diet, consume game fish cherished by sport anglers, 
that factor alone is not sufficient justification for Congress 
to authorize a hunt for a non-game bird protected under the 
MBTA. In fact, the longstanding policy of the Service is to 
deny such requests because rarely is there a verifiable 
biological connection or associated economic impact. Yet H.R. 
3118 would overturn a prudent conservation policy in favor of a 
short-sighted management scheme. Moreover, this flawed strategy 
would inflict unnecessary mortality on non-nuisance cormorant 
colonies without any reasonable assurance that sport fish 
populations would actually recover. In fact, we suspect that 
sport fish populations might recover more quickly through the 
implementation of control measures to address other deleterious 
human activities affecting sport fish populations, such as 
polluted run-off, aquatic nuisance species, acidification of 
lakes and ponds, and habitat loss.
    These birds should not be unfairly singled out when no 
credible scientific evidence has been presented to the 
Committee to justify the authorization of a broad-based hunt, 
and especially, when a science-based national management 
strategy for double-crested cormorants is within reach. The 
Service has consistently communicated its strong preference to 
be allowed to complete this EIS free from congressional 
interference. Rather than default to the strategy proposed in 
H.R. 3118, we believe it would be far wiser for the Congress to 
suspend action until the full range of management alternatives 
in the EIS can be evaluated and a national strategy proposed. 
To that end, we urge the Service to expedite the completion of 
this important EIS.
                                   George Miller.
                                   Patrick J. Kennedy.
                                   Mark Udall.
                                   Rush Holt.
                                   Frank Pallone, Jr.
                                   Donna Christensen.
                                   Joseph Crowley.

                                  
