[Federal Register Volume 66, Number 14 (Monday, January 22, 2001)]
[Notices]
[Pages 6649-6652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1799]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service


Notice of Policy Regarding Capture and Removal of Southern Sea 
Otters in a Designated Management Zone

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Statement of policy.

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SUMMARY: This notice advises the public that we, the U.S. Fish and 
Wildlife Service (Service), have determined that we will not capture 
and remove southern sea otters from the southern California sea otter 
management zone pending completion of our ongoing reevaluation of the 
southern sea otter translocation program including the preparation of a 
supplemental environmental impact statement (EIS) and release of a 
final evaluation of the translocation program.
    On July 19, 2000, we finalized a biological opinion in accordance 
with section 7(a)(2) of the Endangered Species Act of 1973, as amended 
(ESA), evaluating containment of southern sea otters, including the 
capture and removal of otters from a designated management zone. That 
biological opinion is based on substantial new information on the 
population status, behavior, and ecology of the southern sea otter, and 
concludes that continued containment of southern sea otters will likely 
jeopardize the continued existence of the southern sea otter. On July 
27, 2000 (65 FR 46172), we published a notice of intent to prepare a 
supplemental EIS on the southern sea otter translocation plan.
    We have determined, based on our recent biological opinion, that 
containment of southern sea otters, at present, is not consistent with 
the requirement under the Act to avoid jeopardy to the species. We are 
in the process of reevaluating the translocation program and expect to 
complete a supplemental EIS and finalize our evaluation of the 
translocation program, including evaluation of the failure criteria 
developed for the program, by December 2002. We have provided and will 
continue to provide for public participation during that process. Upon 
completion of these documents, we will determine whether the southern 
sea otter translocation plan needs to be modified (including under what 
circumstances containment of southern sea otters can resume) or 
terminated to make it consistent with the survival and recovery needs 
of the species.

FOR FURTHER INFORMATION CONTACT: Mr. Greg Sanders, U.S. Fish and 
Wildlife Service, Ventura Fish and Wildlife Office, 2493 Portola Road, 
Suite B, Ventura, California, 93003-7726, (telephone: 805/644-1766; 
facsimile: 805/644-3958).

SUPPLEMENTARY INFORMATION:

Background

    On January 14, 1977 (42 FR 2968), we listed the southern sea otter 
(Enhydra lutris nereis) as a threatened species under the ESA on the 
basis of its small population size, greatly reduced range, and the 
potential risk from oil spills. We established a recovery team for the 
species in 1980 and approved a recovery plan on February 3, 1982. In 
the recovery plan, we identified the translocation of southern sea 
otters to a remote location in order to establish a second colony of 
otters as an effective and reasonable recovery action, although we 
acknowledged that a translocated southern sea otter population could 
impact shellfish fisheries that had developed in areas formerly 
occupied by southern sea otters. Goals cited in the recovery plan 
included: minimizing risk from potential oil spills; establishing at 
least one additional breeding colony outside the then-current southern 
sea otter range; and compiling and evaluating information on historical 
distribution and abundance, available but unoccupied habitat, and 
potential fishery conflicts.
    The purpose of the translocation program was to establish southern 
sea otters in one or more areas outside the otters' then-current range 
to minimize the possibility of a single natural or human-caused 
catastrophe, such as an oil spill, adversely affecting a significant 
portion of the population. Ultimately, it was anticipated that 
translocation would result in a larger population size and a more 
continuous distribution of animals throughout the southern sea otter's 
former historical range. We viewed translocation as important to 
achieve recovery and to identify the optimum sustainable population 
(OSP) level for the southern sea otter as required under the Marine 
Mammal Protection Act (MMPA).
    Translocation of a listed species to establish experimental 
populations is specifically authorized under section 10(j) of the ESA. 
However, the southern sea otter is protected under both the ESA and the 
MMPA, and the MMPA contains no similar translocation provisions. For 
southern sea otters, this dilemma was resolved by the passage of Public 
Law (P.L.) 99-625 (Fish and Wildlife Programs: Improvement; Section 1. 
Translocation of California Sea Otters) on November 7, 1986, which 
specifically authorized development of a translocation plan for 
southern sea otters administered in cooperation with the affected 
State.
    If the Secretary of the Interior chose to develop a translocation 
plan under P.L. 99-625, the plan was to include: the number, age, and 
sex of sea otters proposed to be relocated; the manner in which sea 
otters were to be captured, translocated, released, monitored, and 
protected; specification of a zone into which the experimental 
population would be introduced (translocation zone); specification of a 
zone surrounding the translocation zone that did not include range of 
the parent population or adjacent range necessary for the recovery of 
the species (management zone); measures, including an adequate funding 
mechanism, to isolate and contain the experimental population; and a 
description of the relationship of the implementation of the plan to 
the status of the species under the ESA and determinations under 
section 7 of the ESA. The purposes of the management zone were to 
facilitate the management of southern sea otters and containment of the 
experimental population within the translocation zone and to prevent, 
to the maximum extent feasible, conflicts between the experimental 
population and other fishery resources within the management zone. Any 
sea otter found within the management zone was to be treated as a 
member of the experimental population. The Service was required to use 
all feasible non-lethal means to capture sea otters in the management 
zone and return them to the translocation zone or to the range of the 
parent population.
    On March 6, 1987, we completed an intra-Service biological opinion 
that evaluated translocation of southern sea otters to San Nicolas 
Island, our preferred translocation site. That biological opinion 
analyzed effects on the parent population caused by removal of southern 
sea otters from the population for translocation and the effects on the 
species of containment (removal) of otters from the management zone. 
The proposed translocation plan was found to be a well-designed 
recovery action that maximized the

[[Page 6650]]

opportunity for success while minimizing negative impacts on the parent 
population. We concluded that the southern sea otter translocation plan 
would not likely jeopardize the continued existence of the species.
    In May 1987, we finalized an EIS which analyzed the impacts of 
establishing a program to translocate southern sea otters from their 
then-current range along the central coast of California to areas of 
northern California, southern Oregon, or San Nicolas Island off the 
coast of southern California. San Nicolas Island was identified as our 
preferred alternative. A detailed translocation plan meeting the 
requirements of Pub. L. 99-625 was included as an appendix to the final 
EIS.
    Regulations to implement Pub L. 99-625 were finalized August 11, 
1987 and are found at 50 CFR 17.84(d). They provide details of the 
translocation plan, including criteria for determining whether the 
translocation program would be considered a failure. Waters surrounding 
San Nicolas Island were designated as the translocation zone, and all 
waters south of Point Conception, California, with the exception of 
waters surrounding San Nicolas Island, were designated as the 
management zone.
    On August 19, 1987, as part of our cooperative actions with the 
State of California, we signed a Memorandum of Understanding with the 
California Department of Fish and Game (CDFG) providing for cooperative 
research and management efforts to promote recovery of the southern sea 
otter population in California. The agreement also included provisions 
to minimize conflicts between southern sea otters, existing shellfish 
fisheries, and other users of marine resources through containment of 
sea otters that might enter the management zone.
    We implemented the translocation plan and began moving groups of 
southern sea otters from the coast of central California to San Nicolas 
Island starting on August 24, 1987. In December 1987, in coordination 
with the CDFG, we began capturing and moving sea otters that entered 
the designated management zone in an effort to minimize conflicts 
between sea otters and fisheries within the management zone and to 
facilitate the management of sea otters at San Nicolas Island.
    We released 140 southern sea otters at San Nicolas Island between 
August 1987 and March 1990. As of March 1991, approximately 14 sea 
otters (10 percent) were thought to remain at the island. Some sea 
otters died as a result of translocation; many swam back to the parent 
population, some moved into the management zone; and the fate of more 
than half the sea otters taken to San Nicolas is unknown. In 1991, we 
stopped translocating sea otters to San Nicolas Island, due to low 
retention and survival. However, we continued monitoring the sea otters 
remaining in the translocation zone. Sea otter surveys at San Nicolas 
Island are now conducted by the Biological Resources Division of the 
U.S. Geological Survey on a bimonthly basis.
    Sea otters were captured and removed from the management zone until 
February 1993. At that time, two sea otters that had been recently 
captured in the management zone were found dead shortly after their 
release in the range of the parent population. A total of four sea 
otters were known or suspected to have died within 2 weeks of being 
moved from the management zone. We suspended all sea otter capture 
activities in the management zone to evaluate sea otter capture and 
transport methods. Results of the evaluation were inconclusive, but we 
remained concerned that capture and transport of sea otters found in 
the management zone could result in the death of some animals. Between 
December 1987 and February 1993, 24 sea otters were captured and 
removed from the management zone and returned to the parent range. Of 
these, 2 sea otters were captured twice in the management zone after 
being moved to the northern end of the parent range, suggesting that 
capture and relocation were ineffective. We discontinued containment 
efforts after 1993 in response, in part, to our concerns about the 
unexpected mortalities of otters experienced during or shortly 
following their removal from the management zone. We also recognized 
that techniques at the time, which proved to be less effective than 
originally predicted and were labor intensive, were not a feasible 
means of containing otters. In 1997, CDFG announced that they also 
would no longer be able to assist with sea otter captures in the 
management zone.
    A group of approximately 100 southern sea otters moved from the 
parent range into the northern end of the management zone in 1998. At 
the same time, range-wide counts of the southern sea otter population 
indicated a decline of approximately 10 percent since 1995. Given the 
decline in the southern sea otter population, we asked the Southern Sea 
Otter Recovery Team, a team of biologists with special expertise in sea 
otter ecology, for a recommendation regarding the capture and removal 
of sea otters in the management zone. The recovery team recommended 
that we not move sea otters from the management zone to the parent 
population because moving large groups of sea otters and releasing them 
within the parent range would be disruptive to the social structure of 
the parent population.
    In August 1998, we held two public meetings to provide information 
on the status of the translocation program, identify actions we 
intended to initiate, and solicit general comments and recommendations. 
At these meetings, we announced that we would reinitiate consultation 
under section 7 of the ESA for the containment program and begin the 
process of evaluating failure criteria established for the 
translocation plan. The technical consultant group for the Southern Sea 
Otter Recovery Team, composed of representatives from the fishery and 
environmental communities as well as State and Federal agencies, was 
also expanded to assist with evaluating the translocation program. We 
provided updates on the translocation program and status of the 
southern sea otter population to the California Coastal Commission, 
Marine Mammal Commission, and California Fish and Game Commission in 
1998 and 1999.
    In March 1999, we distributed our draft evaluation of the 
translocation program to interested parties. The draft document 
included the recommendation that we declare the translocation program a 
failure because fewer than 25 sea otters remained in the translocation 
zone and reasons for the translocated otters' emigration or mortality 
could not be identified and/or remedied. We received substantive 
comments from agencies and the public following release of the draft 
for review.
    We prepared a draft biological opinion evaluating southern sea 
otter containment and distributed it to interested parties for comment 
on March 19, 1999. We completed a final opinion on July 19, 2000. Our 
reinitiation of consultation was prompted by the receipt of substantial 
new information on the population status, behavior, and ecology of the 
southern sea otter that revealed effects of containment that were not 
previously considered. Specifically, the biological opinion noted that 
in 1998 and 1999 southern sea otters moved into the management zone in 
much greater numbers than had occurred in prior years; analysis of 
carcasses indicated that southern sea otters were being exposed to 
environmental contaminants and diseases which could be affecting the 
health of the population; range-wide counts of southern sea otters 
found

[[Page 6651]]

numbers were declining; recent information, in particular the 
implications of the effects of the Exxon Valdez oil spill, indicated 
that sea otters at San Nicolas Island would not be isolated from the 
potential effects of a single large oil spill; and the capture and 
release of large groups of sea otters was likely to result in 
substantial adverse effects on the parent population. The Service 
concluded that reversal of the southern sea otter population decline 
and expansion of the southern sea otter's population distribution are 
essential to its survival and recovery. The Service further concluded 
that continuation of the containment program, while restricting the 
southern sea otter to the area north of Point Conception, will likely 
exacerbate recent sea otter population declines and increase 
vulnerability to a catastrophic oil spill or other man-made or natural 
stochastic events, and, therefore, likely jeopardize the continued 
existence of the species.
    On February 8, 2000, a draft revised recovery plan for the southern 
sea otter was released for public review and comment (65 FR 6221). 
Based on the observed decline in abundance and shift in distribution of 
the southern sea otter population, the recovery team recommended in the 
draft revised recovery plan that it would be in the best interest of 
the southern sea otter to declare the experimental translocation of 
southern sea otters to San Nicolas Island a failure and discontinue 
maintenance of the management zone. The recovery team's recommendation 
will be fully evaluated through our ongoing NEPA process on the 
translocation action.

Current Status

    In 4 of the past 5 years, population counts have shown a decline in 
southern sea otters. Survey data collected in spring 2000 were 
encouraging, with the number of southern sea otters counted approaching 
the highest recorded count for the population. However, more survey 
data are needed to determine whether the spring 2000 count was an 
anomaly or the beginning of a positive trend in southern sea otter 
population growth. In spite of more than 140 sea otters having been 
translocated and evidence of reproduction, the population of sea otters 
at San Nicolas Island currently comprises only approximately 20 adults.
    To date, the southern sea otter translocation program has not met 
the primary goal of establishing a viable population of southern sea 
otters at San Nicolas Island. In the translocation plan we determined 
that a self-sustaining colony size of 150 southern sea otters would be 
necessary to consider the population at San Nicolas Island viable. 
Based on trends since the translocation program began and current 
circumstances, the best scientific information indicates that a 
population of this size may not be attainable.
    On July 27, 2000 (65 FR 46172), we published in the Federal 
Register a notice of intent to prepare a supplemental EIS on the 
southern sea otter translocation program. The need for a supplemental 
EIS is based on changed circumstances and new information since the 
original EIS on translocation of southern sea otters was prepared in 
1987. Public scoping meetings were held on August 15 and 17, 2000, with 
the purpose of soliciting information to be used in defining the 
overall scope of the supplemental EIS, identifying significant issues 
to be addressed, and identifying alternatives to be considered. The 
technical consultants to the Southern Sea Otter Recovery Team met to 
discuss the supplemental EIS on September 26, 2000. We expect a draft 
supplemental EIS to be completed and released for public comment by 
September 2001 and a final document to be completed approximately a 
year later. The draft evaluation of the translocation program released 
in March 1999 will be finalized following further opportunity for 
public participation in the decision-making process and completion of 
the EIS.

Public Law 99-625 and the ESA

    Section 7 of the ESA mandates that no Federal agency--including the 
U.S. Fish and Wildlife Service--may take any action that is likely to 
jeopardize the continued existence of a listed species. The 
translocation plan we developed in 1987 pursuant to the discretionary 
authority vested in the Secretary of the Interior was a Federal action 
for which consultation was required. Therefore, prior to implementing 
the translocation program, we conducted an internal consultation under 
section 7. That internal consultation resulted in a biological opinion 
dated March 6, 1987, in which we concluded that implementation of the 
translocation plan as proposed was not likely to jeopardize the 
southern sea otter. Specifically we concluded that implementing zonal 
management of sea otters by establishing a translocation zone 
surrounding San Nicolas Island to which otters would be moved, 
establishing a surrounding ``otter free'' management zone south of 
Point Conception from which otters would be removed, demarcating the 
southward limit of the parent range at Point Conception to allow for 
range expansion by the parent population, removal and translocation of 
up to 250 sea otters from the parent population to San Nicolas Island, 
and containment of otters by non-lethal means and their return to the 
parent population or San Nicolas Island would not likely jeopardize the 
continued existence of the species. Had we concluded in our 1987 
biological opinion that implementation of the translocation plan, or 
any of its components, would result in jeopardy to the sea otter, the 
program could not have legally proceeded as implementation would have 
violated the ESA.
    Our implementing regulations at 50 CFR 402.16(b) require any 
Federal agency to reinitiate consultation if new information reveals 
that an action may affect a listed species in a manner or to an extent 
not previously considered. Significant new information that has come to 
light since inception of the translocation plan has included evidence 
of: (1) Recent annual declines in the parent population; (2) exposure 
of otters to contaminants; (3) movement of significant numbers of 
otters from the parent range into the management zone; (4) potential 
effects of a single, large oil spill on the entire sea otter 
population, including San Nicolas Island; and (5) substantial adverse 
impacts to the parent population likely to result from reintroduction 
of large numbers of contained otters. Pursuant to our section 7 
responsibilities, we reinitiated consultation in 1999 on the 
containment component of the translocation plan to consider the 
significant new information about the potential effects of containment 
on the parent population of southern sea otters. In our July 2000 
biological opinion we concluded that containment of sea otters from the 
management zone and reintroduction back into the parent population 
would likely jeopardize the continued existence of the species. In 
light of the determination from our July 2000 biological opinion, we 
may not proceed with containment until the factors that may cause 
jeopardy to the southern sea otter are addressed.
    Our determination is consistent with both the structure and intent 
of Pub. L. 99-625. The statute as written recognizes the applicability 
of the ESA generally--and section 7 in particular--to the translocation 
plan throughout its various subsections (e.g., sections 1(b)(6), 1(c), 
1(d), 1(e), and 1(f)). Further, the intent of Pub. L. 99-625 was to 
allow the Secretary to implement what was then identified as a critical 
recovery action under the 1982 recovery plan ,

[[Page 6652]]

and any implementation contrary to this recovery goal would contradict 
the purpose of the statute. Indeed, we have determined that containment 
under the present circumstances could lead to extinction of the 
species. Finally, apart from the specific references to section 7 
throughout Pub. L. 99-625, the statute's discretionary grant of 
authority to the Secretary to develop and implement a translocation 
plan in the first instance brings the Secretary's affirmative decision 
to develop--and to continue to implement--the plan squarely within the 
universe of federal actions to which section 7 of the ESA applies. 
Having concluded under section 7 that implementation of the containment 
component of the plan would likely jeopardize the sea otters' continued 
existence, we may not proceed with that aspect of the translocation 
plan.
    Without the legal protection afforded by section 7, actions 
undertaken by the Service, an authorized State agency, or an authorized 
agent of either the Service or such agency to effect containment are 
not insulated from liability under section 9 of the ESA and 
implementing regulations, which prohibit take of listed species unless 
otherwise authorized or exempt. Section 1(f) of Pub. L. 99-625 declares 
that no act by the Service or authorized State agency personnel to 
effect the translocation or management of a sea otter under the 
translocation plan may be treated as a violation of the ESA or the 
Marine Mammal Protection Act. However, the protective shield provided 
by this section no longer applies where the Service has determined that 
a component of the underlying plan itself--containment--is likely to 
jeopardize the continued existence of the sea otter. Under the present 
circumstances, any act by Service or authorized State agency personnel 
to remove otters from the management zone and relocate them to the 
parent population that results in take of an otter in either the 
management zone or the parent population would be in violation of 
section 9 of the ESA and subject to appropriate enforcement action.

Service's Position

    Our mission is to work with others to conserve, protect, and 
enhance fish, wildlife, and plants and their habitats for the 
continuing benefit of the American people. The southern sea otter is 
threatened with extinction. The southern sea otter translocation plan 
was developed to help this species recover by establishing an 
experimental population. We have yet to establish an experimental 
population, the southern sea otter continues to be threatened with 
extinction, and we have concluded that implementing the containment 
provisions of the southern sea otter translocation plan under the 
current circumstances will likely jeopardize the continued existence of 
the species.
    We are preparing a supplemental EIS to evaluate new information 
regarding the translocation program and the status of the sea otter and 
to consider whether modifications to the southern sea otter 
translocation program as presently structured, or termination of the 
program, would be appropriate. We will also finalize our evaluation of 
the translocation program, including analysis of the failure criteria 
established for the program. Containment of southern sea otters under 
the current circumstances would violate our duty under the Endangered 
Species Act to avoid any action that would likely jeopardize the 
continued existence of the species. Therefore, we will not capture and 
remove sea otters from the management zone until we complete our 
reevaluation of the translocation program unless, during this interim 
period, new information or changed circumstances indicate that 
containment no longer poses likely jeopardy to the species. We will 
continue to solicit public input and comments regarding the 
translocation plan as part of our NEPA review and any rulemaking 
process.

    Dated: January 16, 2001.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 01-1799 Filed 1-17-01; 3:23 pm]
BILLING CODE 4310-55-P