[House Report 113-330]
[From the U.S. Government Publishing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 113-330
======================================================================
ENDANGERED SALMON AND FISHERIES PREDATION PREVENTION ACT
_______
January 23 (legislative day, January 21), 2014.--Committed to the
Committee of the Whole House on the State of the Union and ordered to
be printed
_______
Mr. Hastings of Washington, from the Committee on Natural Resources,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1308]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 1308) to amend the Marine Mammal Protection Act
of 1972 to reduce predation on endangered Columbia River salmon
and other nonlisted species, and for other purposes, having
considered the same, report favorably thereon without amendment
and recommend that the bill do pass.
Purpose of the Bill
The purpose of H.R. 1308 is to amend the Marine Mammal
Protection Act of 1972 to reduce predation on endangered
Columbia River salmon and other nonlisted species.
Background and Need for Legislation
The Marine Mammal Protection Act (MMPA) has resulted in
California sea lions and certain populations of Steller sea
lions being restored to historic levels. Steller sea lions are
protected under the MMPA, and the Western population of these
sea lions is also listed under the Endangered Species Act
(ESA). Another population of Steller sea lions, the Eastern
population, was delisted under the ESA by the National Marine
Fisheries Service (NMFS) in September 2013.
The current MMPA allows for the lethal removal of marine
mammals in narrow instances. Section 120, which was added by
the 1994 amendments to the MMPA, allows States to apply to the
Secretary of Commerce for an authorization to lethally take a
nuisance pinniped, except those listed under the ESA,
identified as having a ``significant negative impact'' on ESA
listed salmon stocks. This section requires the Secretary of
Commerce to review the impacts of California sea lions and
Pacific harbor seals on West Coast salmon and recommend a
course of action. The original report was completed and
submitted to Congress. A second report with specific
recommendations for MMPA amendments was submitted by NMFS in
1999. NMFS recommended that Congress amend MMPA to include
site-specific management, including the use of lethal and non-
lethal removal of California sea lions and harbor seals.
However, changes have been made to Section 120 since then, and
the result has been a huge increase in sea lions feasting on an
increasing amount of ESA-listed and other fish species in the
Columbia River and its tributaries.
Increasing Numbers of Sea Lions in Columbia River. The Army
Corps of Engineers has reported that the daily average of
pinnipeds (harbor seals, Steller sea lions, and California sea
lions) at Bonneville Dam on the Columbia River have steadily
increased over the past several years. NMFS reported that in a
typical May there are roughly 3,000 Pacific harbor seals, 1,000
Steller sea lions, and 800 California sea lions resting in
haul-out sites in the Columbia River estuary. Each of these
animals feed in the Columbia River and nearshore marine areas
on a variety of prey, including squid, smelt, herring,
flatfish, perch, pollock, hake, rockfish, sturgeon and salmon.
The State of Oregon estimates that these animals consume 15 to
30 pounds of fish per day.
Impacts on ESA-listed Salmon and Steelhead and White
Sturgeon. Estimates of annual predation on spawning ESA-listed
salmon range between 12,000 to 20,000 per year. The actual
number is likely much higher, since many fish kills by sea
lions are out of sight of observers. In addition, a growing
number of Steller sea lions at Bonneville have increased
predation of both salmon and non-listed white sturgeon, which
are important species for State and tribal fisheries. An expert
with the Oregon Department of Fish and Wildlife testified that
data suggests that sea lions are consuming as much as 16 to 20
percent of endangered spring Chinook salmon, an alarming
number.
Ineffectiveness and Litigation on Current Section 120. Due
to increasing numbers of sea lions preying on salmon, since
2006, the States of Oregon, Washington, and Idaho have applied
to NMFS three separate times for lethal take authority under
Section 120 of the MMPA. Each of these applications underwent a
thorough and extensive National Environmental Policy Act (NEPA)
review and approval by an 18-member Task Force, representing
academic, scientific, environmental, tribal, federal and State
agencies.
The NMFS' approval of these state applications for lethal
removal have been challenged by the Humane Society of the
United States and other groups in federal court since 2008,
including temporary and permanent injunction motions, appeals
for emergency relief, appeals of district court orders that
upheld NMFS' actions, new lawsuits filed in a different circuit
court, and additional review by the Ninth Circuit Court of
Appeals. Ultimately, in September 2013, the courts held that
the NMFS actions to approve the lethal take applications were
appropriate and warranted under the existing Section 120
authority of the MMPA.
H.R. 1308 amends Section 120 of the MMPA to allow the
Secretary of Commerce to issue permits to eligible States and
tribes to lethally remove healthy populations of sea lions,
including de-listed Steller sea lions, on the Columbia River or
its tributaries, including Steller sea lions which have grown
in large numbers in recent years and have escalated predation
of endangered salmon as well as non-listed, but state-regulated
white sturgeon species. This new Secretarial authority could be
suspended at the discretion of the Secretary, after
consultation with affected States and tribes five years after
the date of enactment if the Secretary determines that the
lethal take of predatory sea lions is no longer necessary to
protect salmon stocks. With the extensive, previous NEPA
analyses upheld by multiple federal courts, NEPA analyses would
not apply to this subsection or to any permits issued during
the five-year period beginning on the date of enactment of the
Act.
The Directors of the Washington and Oregon Departments of
Fish and Wildlife, the Columbia River Inter-Tribal Fish
Commission, and the Confederated Tribes of the Yakama Indian
Nation have testified in support of H.R. 1308.
Committee Action
H.R. 1308 was introduced on March 21, 2013, by Congressman
Doc Hastings (R-WA). The bill was referred to the Committee on
Natural Resources, and within the Committee to the Subcommittee
on Fisheries, Wildlife, Oceans and Insular Affairs. On June 13,
2013, the Subcommittee held a hearing on the bill. On November
14, 2013, the Natural Resources Committee met to consider the
bill. The Subcommittee on Fisheries, Wildlife, Oceans and
Insular Affairs was discharged by unanimous consent. No
amendments were offered, and the bill was adopted and ordered
favorably reported to the House of Representatives by a roll
call vote of 22 to 16, as follows:
Section-by-Section Analysis
Section 1. Short title
This Act may be cited as the `Endangered Salmon and
Fisheries Predation Prevention Act.'
Section 2. Findings
This section provides findings for the bill.
Section 3. Taking of sea lions on the Columbia River and its
tributaries to protect endangered and threatened species of
salmon and other nonlisted fish species
Section 3 authorizes the Secretary of Commerce to issue
annual permits to ``eligible entities'' to lethally remove up
to 10 sea lions per permit, no more than 1 percent of potential
biological removal level per year. ``Eligible entities'' are
defined to include the States of Washington, Oregon and Idaho,
the Nez Perce Tribe, the Confederated Tribes of the Umatilla
Indian Reservation, the Confederated Tribes of the Warm Springs
Reservation of Oregon, the Confederated Tribes and Bands of the
Yakama Nation, and the Columbia Intertribal Fish Commission.
The section authorizes any eligible permitted entity to
lethally remove sea lions, to delegate its authority to any
other eligible entity, and to allow States and tribes to
further coordinate these ongoing efforts. Further, the section
waives the application of the NEPA with regard to the process
or implementation of lethal permits.
The section also allows the Secretary of Commerce to
suspend permitting authority, after consultation with the
affected States and tribes, if the Secretary believes lethal
removal is no longer necessary to protect fish species.
Section 4. Sense of Congress
Section 4 includes the sense of the Congress that
preventing predation by sea lions, recovery of listed salmon
stocks, and preventing future listings of fish stocks in the
Columbia River is a vital priority; permit holders exercising
lethal removal authority should be trained in wildlife
management; and the federal government should continue to fund
lethal and nonlethal removal measures for preventing such
predation.
Section 5. Treaty rights of federally recognized Indian tribes
Section 5 ensures that the bill's provisions do not impact
the treaty rights of any federally-recognized tribe.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(1) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(2)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974. Under clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives and section
403 of the Congressional Budget Act of 1974, the Committee has
received the following cost estimate for this bill from the
Director of the Congressional Budget Office:
H.R. 1308--Endangered Salmon and Fisheries Predation Prevention Act
H.R. 1308 would authorize the National Oceanic and
Atmospheric Administration (NOAA) to issue permits to allow
states and tribal entities in the Northwest United States to
kill California sea lions under certain circumstances. Each
permit would allow up to 10 sea lions a year to be removed from
healthy populations that threaten species of salmon and other
fish that are listed as endangered or threatened under the
Endangered Species Act.
Under current law, NOAA has the authority to issue permits
to kill certain marine mammals that threaten other species.
Based on information provided by the agency, CBO estimates that
providing NOAA with the authority to issue such permits for
California sea lions would have a negligible impact on the
federal budget. Enacting H.R. 1308 would not affect direct
spending or revenues; therefore, pay-as-you-go procedures do
not apply.
H.R. 1308 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Jeff LaFave. The
estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
2. Section 308(a) of Congressional Budget Act. As required
by clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives and section 308(a) of the Congressional Budget
Act of 1974, this bill does not contain any new budget
authority, spending authority, credit authority, or an increase
or decrease in revenues or tax expenditures. CBO estimates that
the bill would have a negligible impact on the federal budget.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to amend the Marine Mammal Protection
Act of 1972 to reduce predation on endangered Columbia River
salmon and other nonlisted species.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of Rule XXI of the Rules of
the House of Representatives.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Compliance With H. Res. 5
Directed Rule Making. The Chairman does not believe that
this bill directs any executive branch official to conduct any
specific rule-making proceedings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
MARINE MAMMAL PROTECTION ACT OF 1972
* * * * * * *
TITLE I--CONSERVATION AND PROTECTION OF MARINE MAMMALS
* * * * * * *
SEC. 120. PACIFIC COAST TASK FORCE; GULF OF MAINE.
(a) * * *
* * * * * * *
[(f) California Sea Lions and Pacific Harbor Seals;
Investigation and Report.--
[(1) The Secretary shall engage in a scientific
investigation to determine whether California sea lions
and Pacific harbor seals--
[(A) are having a significant negative impact
on the recovery of salmonid fishery stocks
which have been listed as endangered species or
threatened species under the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.), or which
the Secretary finds are approaching such
endangered species or threatened species
status; or
[(B) are having broader impacts on the
coastal ecosystems of Washington, Oregon, and
California.
The Secretary shall conclude this investigation and
prepare a report on its results no later than October
1, 1995.
[(2) Upon completion of the scientific investigation
required under paragraph (1), the Secretary shall enter
into discussions with the Pacific States Marine
Fisheries Commission, on behalf of the States of
Washington, Oregon, and California, for the purpose of
addressing any issues or problems identified as a
result of the scientific investigation, and to develop
recommendations to address such issues or problems. Any
recommendations resulting from such discussions shall
be submitted, along with the report, to the Committee
on Merchant Marine and Fisheries of the House of
Representatives and the Committee on Commerce, Science,
and Transportation of the Senate.
[(3) The Secretary shall make the report and the
recommendations submitted under paragraph (2) available
to the public for review and comment for a period of 90
days.
[(4) There are authorized to be appropriated to the
Secretary such sums as are necessary to carry out the
provisions of this subsection.
[(5) The amounts appropriated under section 308(c) of
the Interjurisdictional Fisheries Act of 1986 (16
U.S.C. 4107(c)) and allocated to the Pacific States
Marine Fisheries Commission may be used by the
Commission to participate in discussions with the
Secretary under paragraph (2).]
(f) Temporary Marine Mammal Removal Authority on the Waters
of the Columbia River or Its Tributaries.--
(1) Removal authority.--Notwithstanding any other
provision of this Act, the Secretary may issue a permit
to an eligible entity authorizing the intentional
lethal taking on the waters of the Columbia River and
its tributaries of sea lions that are part of a healthy
population that is not listed as an endangered species
or threatened species under the Endangered Species Act
of 1973 (16 U.S.C. 1531 et seq.), to protect endangered
and threatened species of salmon and other nonlisted
fish species.
(2) Permit process.--
(A) In general.--An eligible entity may apply
to the Secretary for a permit under this
subsection.
(B) Deadline for consideration of
application.--The Secretary shall approve or
deny an application for a permit under this
subsection by not later than 30 days after
receiving the application.
(C) Duration of permit.--A permit under this
subsection shall be effective for no more than
one year after the date it is issued, but may
be renewed by the Secretary.
(3) Limitations.--
(A) Limitation on permit authority.--Subject
to subparagraph (B), a permit issued under this
subsection shall not authorize the lethal
taking of more than 10 sea lions during the
duration of the permit.
(B) Limitation on annual takings.--The
cumulative number of sea lions authorized to be
taken each year under all permits in effect
under this subsection shall not exceed one
percent of the annual potential biological
removal level.
(4) Delegation of permit authority.--Any eligible
entity may delegate to any other eligible entity the
authority to administer its permit authority under this
subsection.
(5) Nepa.--Section 102(2)(C) of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C))
shall not apply with respect to this subsection and the
issuance of any permit under this subsection during the
5-year period beginning on the date of the enactment of
this subsection.
(6) Suspension of permitting authority.--
If, 5 years after enactment, the Secretary,
after consulting with State and tribal fishery
managers, determines that lethal removal
authority is no longer necessary to protect
salmonid and other fish species from sea lion
predation, may suspend the issuance of permits
under this subsection.
(7) Eligible entity defined.--In this subsection, the
term ``eligible entity'' means each of the State of
Washington, the State of Oregon, the State of Idaho,
the Nez Perce Tribe, the Confederated Tribes of the
Umatilla Indian Reservation, the Confederated Tribes of
the Warm Springs Reservation of Oregon, the
Confederated Tribes and Bands of the Yakama Nation, and
the Columbia River Inter-Tribal Fish Commission
* * * * * * *
DISSENTING VIEWS
H.R. 1308, the Endangered Salmon and Fisheries Predation
Prevention Act, would amend the Marine Mammal Protection Act
(MMPA) to authorize the Secretary of Commerce to issue annual
permits to Washington, Oregon, Idaho and five tribal groups
(Nez Perce, Umatilla, Warm Springs, Yakama, and the Columbia
River Inter-Tribal Fish Commission) to kill sea lions. The
bill's stated intent is to reduce the effect of predation by
sea lions on salmon listed under the Endangered Species Act
(ESA), as well as any non-listed fish, which would include non-
native species that pose a greater threat to salmon than do sea
lions. Under H.R. 1308, as many as 85 sea lions could be killed
in a year. The authority to kill sea lions would no longer be
limited to the ``bottleneck'' area immediately below the
Bonneville Dam as it is under the existing NOAA lethal take
authorization. H.R. 1308 also waives application of Section
102(2)(c) of the National Environmental Policy Act (NEPA) to
the permit process, eliminating the requirement that the
Secretary consider the environmental impacts associated with
the permit, and alternatives to the permitted action.
H.R. 1308 targets the threat that any fish face from
predation by marine mammals, specifically sea lions, but does
not address other far more significant factors which impact
endangered salmon or non-listed fish. Other threats to ESA-
listed salmon and non-listed fish in the Columbia River include
hydropower development and habitat loss, fishing pressure,
interactions with hatchery fish, climate change, pesticides,
and predation by fish and wildlife other than sea lions, all of
which appear to be worsening over time. In contrast, the
percentage of salmon runs taken by California sea lions has
declined from 4.2 percent in 2007 to 1.2 percent in 2012. Sea
lion predation represents a small percentage of salmon
mortality and the current authorization--which was recently
upheld by the 9th Circuit Court of Appeals--is sufficient.
H.R. 1308, if enacted, would not address the most serious
threats faced by endangered salmon and non-listed species, but
would needlessly target sea lions, which are a native and
critical part of the Columbia River ecosystem. For these
reasons, we oppose H.R. 1308, as reported.
Peter DeFazio,
Ranking Member, Committee on
Natural Resources.
Gregorio Kilili Camacho Sablan.