2011-23266. Marine Mammals; Pinniped Removal Authority

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice; request for comments.

SUMMARY:

NMFS received an application under section 120 of the Marine Mammal Protection Act (MMPA) from the states of Idaho, Oregon and Washington (states) requesting authorization to intentionally take, by lethal methods, individually identifiable California sea lions (Zalophus californianus) that prey on Pacific salmon and steelhead (Onchorhyncus spp.) listed as threatened or endangered under the Endangered Species Act (ESA) in the Columbia River in Washington and Oregon. This authorization is requested as part of a larger effort to protect and recover listed salmonid stocks in the river. Pursuant to the MMPA, NMFS has determined that the application contains sufficient information to warrant convening a Pinniped-Fishery Interaction Task Force (Task Force), which will occur after the close of the public comment period. NMFS solicits comments on the application and other relevant information related to pinniped predation at Bonneville Dam.

DATES:

Comments and information must be received by October 12, 2011.

ADDRESSES:

You may submit comments, identified by NOAA-NMFS-2011-0216, by any of the following methods:

Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http://www.regulations.gov.

Mail: Comments on the application should be addressed to: Assistant Regional Administrator, Protected Resources Division, NMFS, 1201 NE. Lloyd Blvd., Suite 1100, Portland, OR 97232.

Instructions: All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.

NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT:

Garth Griffin, [phone] or Brent Norberg [phone] or Shannon Bettridge, [phone].

SUPPLEMENTARY INFORMATION:

Electronic Access

Further information is available via the Internet, including the states' application, background information on pinniped predation on listed salmonids, NMFS' past authorizations of lethal removal at Bonneville Dam, descriptions of nonlethal efforts to address the predation, NMFS' 2008 Final Environmental Assessment, and 2011 Supplemental Information Report to the 2008 Final Environmental Assessment. The Internet address is: http://www.nwr.noaa.gov/​Marine-Mammals/​Seals-and-Sea-Lions/​Sec-120-Authority.cfm

Statutory Authority

Section 120 of the MMPA (16 U.S.C. 1361, et seq.) allows the Secretary of Commerce, acting through the Assistant Administrator for Fisheries (Assistant Administrator), NMFS, to authorize the intentional lethal taking of individually identifiable pinnipeds that are having a significant negative impact on the decline or recovery of salmonids that are listed as threatened or endangered under the ESA. The authorization applies only to pinnipeds that are not listed under the ESA, or designated as a depleted or strategic stock under the MMPA. Pursuant to section 120(b) and (c), a state may request authorization to lethally remove pinnipeds, and the Assistant Administrator is required to: (1) Review the application to determine whether the applicant has produced sufficient evidence to warrant establishing a Task Force to address the situation described in the application; (2) Establish the Task Force and publish a notice in the Federal Register requesting public comment on the application if sufficient evidence has been produced; (3) Consider any recommendations made by the Task Force in making a determination whether to approve or deny the application; and (4) If approved, immediately takes steps to implement the intentional lethal taking, which shall be performed by Federal or state agencies, or qualified individuals under contract to such agencies.

The MMPA requires the Task Force be composed of the following: (1) NMFS/NOAA staff, (2) scientists who are knowledgeable about the pinniped interaction, (3) representatives of affected conservation and fishing community organizations, (4) treaty Indian tribes, (5) the states, and (6) such other organizations as NMFS deems appropriate. The Task Force reviews the application, other background information, the factors contained in section 120(d), and public comments and, as required by section 120, recommends to NMFS whether to approve or deny the application. The Task Force is also required to submit with its recommendation a description of the specific pinniped individual or individuals; the proposed location, time, and method of such taking; criteria for evaluating the success of the action; the duration of the intentional lethal taking authority; and a suggestion for non-lethal alternatives, if available and practicable, including a recommended course of action.

Background

In December 2006, NMFS received an application co-signed by the Washington Department of Fish and Wildlife, the Oregon Department of Fish and Wildlife, and the Idaho Department of Fish and Game requesting authorization to intentionally take, by lethal methods, individually identifiable California sea lions in the Columbia River, which are having a significant negative impact on the recovery of threatened and endangered Pacific salmon and steelhead. After deeming the states' application complete, NMFS published a notice in the Federal Register seeking public comment on the application and also requested names of potential members of the Task Force (see 72 FR 4239, January 30, 2007). After the close of the public comment period, NMFS announced the formation of the Task Force, which consisted of 18 members (72 FR 44833, August 9, 2007). The notice also identified a list of questions that NMFS considered relevant to its section 120 decision-making process. The Task Force completed and submitted its report to NMFS on November 5, 2007. Of the 18 Task Force members, all recommended that non-lethal sea lion deterrence measures continue. Seventeen of the eighteen members supported lethal removal of California sea lions while one member from the Humane Society of the United States (HSUS) opposed the states' application and any lethal removal.

After receiving and reviewing the Task Force recommendations, NMFS developed a proposed action and a range of reasonable alternatives and evaluated the environmental impacts of the proposed action and alternatives in a draft Environmental Assessment (EA) in accordance with the National Environmental Policy Act (NEPA). The draft EA, entitled Reducing the Impact on At-Risk Salmon and Steelhead by California Sea Lions in the Area Downstream of Bonneville Dam on the Columbia River, Oregon and Washington, was made available for public comment for a 30-day comment period (73 FR 3453, January 18, 2008). More than 3,500 comments were received, including comments from several Task Force member organizations (e.g., states, tribes, HSUS) and others including the Marine Mammal Commission and a member of Congress. NMFS considered all public comments received on the states' application, the draft EA, and other relevant information, and finalized its EA and MMPA analyses. NMFS determined that its proposed action of authorizing the lethal removal of a limited number of individually identifiable California sea lions would not, pursuant to NEPA, result in a significant impact on the human environment, and that, pursuant to the MMPA, individually identifiable pinnipeds are having a significant negative impact on the decline or recovery of at-risk salmonids. Following these determinations, NMFS issued letters of authorization to Idaho, Oregon and Washington on March 17, 2008, and included specific terms and conditions related to the lethal removal program. On March 24, 2008, NMFS published a notice in the Federal Register informing the public of its final decision on the states' application (73 FR 15483, March 24, 2008).

Shortly after NMFS issued the 2008 section 120 LOA, HSUS and others filed a complaint in the U.S. District Court for the District of Oregon. Plaintiffs alleged that NMFS' approval of the lethal removal of California sea lions violated the MMPA and NEPA. In November 2008, the district court issued an order upholding NMFS' approval of the lethal removal program and NMFS' evaluation of impacts under NEPA. Plaintiffs appealed, and on November 23, 2010, the Ninth Circuit issued a decision overturning NMFS' section 120 LOA, but upheld NMFS' analysis and finding under NEPA. The Ninth Circuit recognized the significance of pinniped predation at Bonneville Dam and noted there are many sources of mortality that need to be controlled in order to recover endangered and threatened salmonids. The court also recognized that “sea lion predation is a serious and potentially significant problem [at Bonneville Dam], and that Congress, in enacting section 120 of the MMPA, has authorized NMFS to give priority to ESA-listed salmonid populations over MMPA-protected pinnipeds under specific circumstances.” Humane Society of the U.S. v. Locke, 626 F.3d 1040, 1054 (9th Cir. 2010). However, the court concluded that NMFS' record lacked 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 fisheries and hydropower operations on the Columbia River is not significant under other authorities (e.g., NEPA); and (2) the agency's failure to explain adequately why a California sea lion predation rate of greater than 1 percent results in a significant negative impact on the decline or recovery of salmonid populations. The Ninth Circuit instructed the district court to vacate NMFS' section 120 decision and remand the decision 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 that supports it” (Id. at 1053).

In response to the litigation, the states submitted a letter to NMFS dated December 7, 2010 requesting that their LOA be reissued. NMFS evaluated the states' request, developed a supplemental information report to determine whether there was a need to supplement the 2008 EA and Finding of No Significant Impact (FONSI), considered a recently completed program effectiveness report by the Task Force Final Report and Recommendations of the Marine Mammal Protection Act Section 120 Pinniped-Fishery Interaction Task Force: Columbia River 3-Year Review and Evaluation, December 17, 2010, and prepared a comprehensive analysis which took into account the Ninth Circuit's concerns and also included a more robust explanation of the agency's decision to authorize lethal removal of individually identifiable pinnipeds. On May 12, 2011, NMFS reissued an LOA to the states, relying in large part on its administrative record supporting the 2008 LOA and the new analyses prepared since the Ninth Circuit decision. See http://www.nwr.noaa.gov/​Marine-Mammals/​Seals-and-Sea-Lions/​Sec-120-Authority.cfm for this LOA.

One week after NMFS issued the 2011 LOA, HSUS filed a lawsuit in the U.S. District Court for the District of Columbia. HSUS once again challenged NMFS' decision alleging, among other things, that the agency: (1) Violated the MMPA when it failed to follow section 120's procedural requirements, (2) failed to adequately explain the agency's inconsistent factual findings that sea lion predation is having a significant negative impact on the decline or recovery of listed salmonids and that much greater take levels by fisheries and hydropower operations are insignificant under NEPA, and (3) violated NEPA when it issued a supplemental information report instead of preparing a supplemental EA or an EIS. After considering HSUS' filing, particularly its allegation that NMFS did not afford the public an opportunity to participate in the section 120 process, NMFS, after consulting with the states, revoked the 2011 LOA on July 27, 2011. HSUS subsequently filed a Notice of Voluntary dismissal and the case was dismissed on August 15, 2011.

In order to prepare for the 2012 pinniped-salmonid conflict, Oregon, Washington and Idaho submitted a new application for lethal removal on August 18, 2011. The states are requesting a new 5-year MMPA section 120 predatory California sea lion removal authorization identical to the permit NMFS issued to the states on May 12, 2011. Under the authorization the States propose to remove no more than 1% of the potential biological removal (PBR) limit (defined below) for the California sea lion population annually. The states define an individually identifiable predatory California sea lions as having natural or applied features that allow them to be individually distinguished from other California sea lions and have been observed eating salmonids at Bonneville Dam, in the “observation area” below the dam, in the fish ladders, or above the dam, between January 1 and May 31 of any year; have been observed at Bonneville Dam on a total of five days (consecutive days, days within a single season, or days over multiple years) between January 1 and May 31 of any year; and are sighted at Bonneville Dam after they have been subjected to active non-lethal deterrence. The states propose to review the lethal removal program on an annual basis and evaluate its effectiveness at reducing sea lion predation on salmonids at Bonneville Dam. The evaluations will determine whether the states will continue the removal program in each subsequent year, and if an extension of the authority is needed at the end of the five year period. The expected benefit from implementing the authorization would be to reduce the recent, unmanageable (using only non-lethal techniques), and growing source of ESA listed salmonid mortality. No lethal removal activities will be conducted until such time as NMFS makes a final decision on the states' pending application.

The application contains information on (1) pinniped population trends, feeding habits, location and timing of the interaction and the number of individual animals involved; (2) efforts to non-lethally deter the pinnipeds and the relative success of those efforts; (3) the extent of the injury or impact caused by pinnipeds on the fishery resource; and (4) the extent that pinniped behavior presents a threat to public safety, as outlined in section 120(d) of the MMPA.

The application presents data from the most recent U.S. Pacific Marine Mammal Stock Assessment Report indicating that the U.S. stock of California sea lions is not listed as “threatened” or “endangered” under the Endangered Species Act, nor as “depleted” or “strategic” under the MMPA. The population has been growing at 5.6% per year and is estimated to number a minimum of 238,000 animals. The PBR level (i.e., the number of animals that could safely be lost to human caused mortality annually without impacting the status of the population) is 8,511 animals. The states propose to remove no more than 1% of PBR (85) of California sea lions annually. The application also summarizes data from observations conducted at the dam since 2002 showing that California sea lion annual presence at the dam increased from 59 days in 2002 to 145 days in 2010 reflecting that over time they have tended to arrive earlier and stay later in the year and that attendance by one or more sea lions has become more consistent throughout the season. As of fall 2010, a total of 264 California sea lions have been uniquely identified by the U.S. Army Corps of Engineers observers using records of applied brands and natural markings. The application reports that data from observations conducted in 2011 have yet to become available but early indications are that 2011 was an unusual year because winter/spring river flow conditions appeared to delay salmonid run timing and thus affected sea lion attendance and predation at the dam.

The application reports the results of sea lion food habits research (scat and gastrointestinal analysis) conducted at the dam from 2006 through 2010 confirming that salmonids are the dominant prey of California sea lions feeding near the dam. Adult salmonid remains were found in over 92% of sea lion scat collected from haul out sites at and near the dam. Sixteen gastrointestinal tracts were collected from California sea lions sea lions that were taken at the dam under the 2008 authorization. Except for one tract that was empty, all tracts collected contained identifiable salmonid remains.

As reported in the application, the analysis of observations conducted by the U.S. Army Corps of Engineers from 2002 through 2010 showed that the minimum expanded estimate of salmonids consumed by California sea lions within the observation zone below the dam increased from 1,010 to 5,095 fish annually. In spite of fluctuating run sizes, and apparently independent of annual run strength, salmonid consumption by sea lions has increased steadily. The application points out that the observed increase in consumption is masked when the estimated consumption in the observation zone is expressed as a percentage of run size because when fish passage is high the relative percent consumed is smaller even though the number of fish eaten by sea lions continues to rise. The application further explains that estimated losses of salmonids to sea lions at the dam are minimum estimates because they only apply to daylight predation within 1/4 mile of the Bonneville Dam tailrace and forebay structures. Many more predation events are known to occur beyond the small area where observers on the dam can see and record events accurately. In addition to salmonids killed immediately by predation, many fish are also injured by predation attempts which may contribute to delayed mortality that has not been quantified. Both wild and marked hatchery origin salmonids are taken by sea lions.

Of the 13 threatened and endangered salmonid populations in the Columbia River the application identifies eight that are potentially impacted by California sea lions in the river and five that are particularly vulnerable at Bonneville Dam. Of the species present at the dam concurrent with sea lions, one population, upper Columbia River spring Chinook, is listed as endangered under the ESA and four populations are listed as threatened—Snake River spring/summer Chinook, lower Columbia River steelhead, mid-Columbia River steelhead, and Snake River steelhead. Marine mammal predation is only one of many threats facing these fish populations and the states seek authorization to manage predation as part of a larger comprehensive fish recovery strategy that is attempting to reduce the impacts across all threats. Beyond marine mammal predation the recovery actions include habitat improvement, hydroelectric system mitigation, harvest reductions, hatchery reforms and bird and fish predation management that are beyond the scope of, but referenced in, the application.

Lastly, the application reports that numbers of California sea lions in the Columbia River have been growing since the 1990s and some animals have become aggressive and caused injuries to fishers along the main stem of the river and its tributaries.

Request for Comments and Other Information

NMFS solicits public comments on the states' application and any additional information that should be considered by the Task Force in making its recommendation, or by NMFS in making its determination whether to approve or deny the application.

The Assistant Administrator has considered the states' application and determined that it provides sufficient evidence to warrant establishing a Task Force. The application describes the means of identifying individual pinnipeds, includes a detailed description of the problem interactions between pinnipeds and listed salmonids at and below Bonneville Dam, and describes the expected benefits of potential taking of pinnipeds. The application also documents past nonlethal efforts to prevent problem interactions. See http://www.nwr.noaa.gov/​Marine-Mammals/​Seals-and-Sea-Lions/​Sec-120-Authority.cfm.

NMFS is seeking comments on a number of issues related to the pinniped-salmonid conflict at Bonneville Dam. These matters include, but are not limited to, the following:

(1) Any new information on pinnipeds in the action area (e.g., population, presence, predation) since 2008;

(2) Any new information concerning salmonids (e.g., status and trends, recovery planning, passage counts, predation versus run size, hatchery versus wild components) since 2008;

(3) Any new information concerning non-lethal deterrence measures since 2008;

(4) The effect of permanent pinniped removals carried out under the 2008 LOA (i.e., impacts to California sea lion populations or salmonid populations);

(5) Any new information concerning predation on salmonids by other species since 2008; and,

(6) Recommendations made by the Task Force at its October/November 2010 meeting concerning the effectiveness of the 2008 LOA.

We are also including, for the public's consideration and comment, our proposed interpretation of the MMPA standard “significant negative impact”; a list of the factors we propose to consider in deciding whether that standard is met; and our proposed interpretation of what is meant by “individually identifiable pinnipeds” that are having a significant negative impact.

Pursuant to section 120(b)(1) of the MMPA, NMFS is required to make a determination whether individually identifiable pinnipeds are having a significant negative impact on the decline or recovery of at-risk salmonid fishery stocks. As we explained in 2008, Congress did not define the phrase “individually identifiable pinnipeds which are having a significant negative impact.” Thus, NMFS applied a two-part test in which the agency would first determine whether pinnipeds collectively are having a significant negative impact on listed salmonids and next determine which pinnipeds are significant contributors to that impact and therefore, may be authorized for removal. We continue to find this two-step test to be reasonable in light of the facts and circumstances at Bonneville Dam. We also propose, given the lack of guidance from Congress, that the plain meaning of the term “significant negative impact” as used in section 120 should be employed. Our view is that in order for California sea lions to be having a significant negative impact on the decline or recovery of at-risk salmonids, the impact has to be “meaningful” and not “insignificant” or “meaningless.”

In determining whether to approve the states' application, we will be guided primarily by the factors supplied by Congress in section 120(d). Congress directed NMFS to consider four categories of information to determine whether to approve or deny a states' request: (1) Populations trends and feeding habits of the pinnipeds; location, timing and manner of the interaction; and number of individual pinnipeds involved; (2) past non-lethal deterrence efforts and whether the applicant has demonstrated that no feasible and prudent alternatives exist and that the applicant has taken all reasonable nonlethal steps without success; (3) extent to which the pinnipeds are causing undue injury or impact, or imbalance with, other species in the ecosystem, including fish populations; and (4) extent to which the pinnipeds are exhibiting behavior that presents an ongoing threat to public safety (see 16 U.S.C. 1389(d)).

We interpret this specific, detailed, and narrow inquiry mandated by Congress as supplying the factors we should consider when determining whether pinniped predation is having a “significant negative impact” on at-risk salmonids. Moreover, as these factors are detailed and specific, and are the only factors Congress mandated, we propose to give them great weight. This approach is further supported by the structure of section 120 and the context in which Congress adopted it. MMPA section 120 applies to a specific and narrow set of circumstances—namely, addressing an interspecies conflict where, as in this case, one species is healthy, robust, and increasing in size and the other is listed as threatened or endangered or is in a state of decline. Pinniped predation on at-risk salmonids has been an emerging and unchecked source of mortality, a problem that Congress specifically addressed when it amended the MMPA in 1994.

Consistent with our interpretation and view of MMPA section 120, and guided by the inquiry Congress required in section 120, we propose that the determination of whether pinnipeds are having a “significant negative impact” on salmonids should also be informed by the following factors, a number of which we relied upon in 2008. They include:

(1) The predation is measurable, growing, and could continue to increase if not addressed;

(2) The level of adult salmonid mortality is sufficiently large to have a measurable effect on the numbers of listed adult salmonids contributing to the viability of the affected ESUs/DPSs;

(3) The mortality rate for listed salmonids is comparable to mortality rates from other sources that have led to corrective action under the ESA;

(4) Non-lethal deterrence efforts have been unsuccessful at reducing the numbers of sea lions or amount of predation;

(5) The predation rate from California sea lions increases when salmonid run sizes decrease;

(6) The combined effect of California sea lion and Steller sea lion predation on at-risk salmonids at Bonneville Dam; and,

(7) The fact that California sea lion numbers reached their highest since 2004, thereby demonstrating that their numbers are as yet unpredictable and can easily grow.

With respect to determining which animals are “individually identifiable pinnipeds,” NMFS proposes, as it did in 2008, to extend any future authorization only to predatory animals with physical features distinguishing them from other pinnipeds (e.g., natural features, brands, or other applied marks) thus meeting the requirement that they be “individually identifiable.” To be considered predatory, an animal must:

(1) Have been observed eating salmonids at Bonneville Dam in the “observation area” (i.e., either below or above the dam or in the fish ladders) between January 1 and May 31 of any year;

(2) Have been observed at Bonneville Dam in the observation area on a total of any 5 days (consecutive days, days within a single season, or days over multiple years) between January 1 and May 31 of any year; and

(3) Be sighted at Bonneville Dam in the observation area after having been subjected to active non-lethal deterrence.

Our view is that an animal meeting all of these criteria has learned that the area contains a preferred prey item and is successful in pursuing it in that area, is persistent in pursuing that prey item, and is not likely to be deterred from pursuing that prey item by non-lethal means. Given its success at obtaining prey in the area and its resistance to non-lethal deterrence efforts, such an animal has shown itself to be making a significant contribution to the pinniped predation problem at Bonneville Dam and is not a naïve animal that can be driven away from the area through non-lethal means.

Finally, we do not propose to adopt the suggestion, made by some commenters during our prior process, that we equate determinations under NEPA or ESA with determinations under section 120 of the MMPA. The ESA and NEPA contain their own standards, definitions, and purposes, which results in a different inquiry. NEPA and the ESA have broad mandates and require agencies to evaluate the effects of the proposed action in combination with other activities that may affect the broader environment (NEPA) or threatened and endangered species (ESA), respectively. In contrast, section 120 focuses solely on pinniped predation on at-risk salmonids. NEPA's inquiry focuses on the effects of a proposed action on the quality of the “human environment”, which is defined broadly by the Council on Environmental Quality's regulation (see 40 CFR 1508.14). In addition, the term “significantly” has a specific meaning under the NEPA regulations and a determination whether an action results in a significant impact on the quality of the human environment is informed by a multitude of factors (see 40 CFR 1508.27). In contrast, section 120 focuses on a very narrow and specific conflict and asks only whether pinniped predation is having a significant negative impact on the decline or recovery of at-risk salmonids.

Under the ESA, NMFS must determine whether a proposed action is “likely to jeopardize the continued existence” of a threatened or endangered species or “result in the destruction or adverse modification” of designated critical habitat (16 U.S.C. 1536(a)(2)). Under these standards, NMFS has adopted regulations that focus the inquiry on the impacts of a proposed action on the species as a whole or its designated critical habitat (see 50 CFR 402.02 and 402.14). Moreover, as part of its section 7 analysis, NMFS considers the “effects of the action,” which includes the proposed action combined with the effects of other activities that are interrelated or interdependent with the proposed action, which will be added to the environmental baseline. An action may not jeopardize the continued existence of a species or result in the destruction or adverse modification of critical habitat, even though it has significant adverse effects to a listed individual or group of individuals. In sum, the ESA's analytical process, like that of NEPA, is well-defined by regulation and there is substantial agency guidance on both ESA and NEPA implementation, unlike that of MMPA, section 120.

Establishment of the Task Force

NMFS intends to schedule a Task Force meeting in October 2011 to consider the states' application. NMFS will invite member organizations from the 2008 Task Force to participate on the 2011 Task Force in order to take advantage of their expertise and familiarity with the subject matter. NMFS will provide the public with prior notice of the Task Force meeting as soon as a date is scheduled.

Dated: September 6, 2011.

James H. Lecky,

Director, Office of Protected Resources, National Marine Fisheries Service.