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Legal, Administrative, and Procedural Considerations for Restoring Sea Otters to Oregon
Aren’t Otters a NOAA Species?Authority for marine mammals shared by U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS or NOAA Fisheries)NMFS has jurisdiction over whales, dolphins, porpoises, seals, and sea lions
FWS has jurisdiction over sea otters, walruses, manatees, dugongs, and polar bears
US Fish and Wildlife Service role
Technical assistance:advice and recommendations
Marine Mammal Protection Act• Maintain marine mammals as
significant functioning element of ecosystem of which they are a part
• Maintain the health and stability of the marine ecosystem
TaxonomyFamily Mustelidae, Subfamily LutrinaeEnhydra lutris – three recognized subspecies based on skull morphology (Wilson et al. 1991)
• Russian (Enhydra lutris lutris)• Northern (Enhydra lutris kenyoni)• Southern (Enhydra lutris nerei) genetic evidence suggests Oregon population represented a
cline between northern and southern sea otters
listed Threatened 1977
How would a potential reintroduction work?
Feasibility Assessmento Biological and ecological considerations
• habitat suitability, sufficient prey resources, viable source population, ecological impact
o Socioeconomic and legal factors• Public support, effect on local economies
o Cost/timeo Long-term managemento Probability of success
Recommendations from the Service:
Detailed plan with logistical considerationso Source animals
• How many? Sex ratios? Ages?• How/when to release? How many
releases?• Transport and holding facilities
Monitoring of habitat, community, and sea otters themselves before and after release
Reintroduction Plan
Laws and Regulations• Marine Mammal Protection Act
(MMPA)
• Endangered Species Act (ESA)
• National Environmental Policy Act (NEPA)
• Coastal Zone Management Act (CZMA)
• Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES)
Endangered Species Act (ESA)
• Prohibitions against “take” of listed species – Section 9"to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct“
• Critical habitat – Section 4 • Consultation requirements for Federal agency actions --
Section 7 ensure actions do not jeopardize the continued existence of the listed entity, or destroy or adversely modify designated critical habitat
Two populations of sea otters listed under ESASouthern Sea Otter (Enhydra lutris nereis; “California “)Southwest Alaska DPS (DPS of Enhydra lutris kenyoni)
Endangered Species Act (ESA)
Non-essential experimentalpopulation – Sec. 10(j)
• Provides flexibility in terms of Sec. 9 prohibitions against take• No critical habitat designation• No consultation requirement, except National Wildlife
Refuges and National Parks
Marine Mammal Protection Act (MMPA)• Applies to all sea otters, regardless of status under ESA• Highly protective statute
• Marine mammals protected from “take”• “Incidental take” may be permitted• § 118 Provides for incidental take from commercial
fisheries*• Except for “California sea otter” § 101(a)(5)(E)(vi)
• No provision for “experimental” populations under MMPA
National Environmental Policy Act (NEPA)
• Federal agencies required to assess environmental effects of their proposed actions under NEPA
• Applies to all actions authorized (permitted), funded, or implemented by a Federal agency
• Permits required under MMPA, ESA, or both (and possibly CITES as well) would trigger NEPA
• NEPA required at proposal – not exploratory -- stage
Coastal Zone Management Act (CZMA)
Requires “consistency determination” to ensure action is consistent with enforceable policies of Oregon’s Coastal Zone Management Plan
Other laws and regulations• Permits related to CITES or USDA-APHIS• Permits under ESA and interstate commerce (for listed
pops)• Authorizations related to State laws or regulations
• No regulation of take by States unless authorized under MMPA §109 (Federal regulation only)
• Oregon Dept. of Agriculture Health Unit (entry permit)• Oregon Administrative Rules 635-062-0020
• Rehabilitation of marine mammals prohibited
Which source population to use?
From a legal perspective, reintroduction gets much more complicated if listed southern sea otters are considered as a source, or if a mix of northern and southern sea otters is contemplated
Challenges associated with listed sea otters
Southern (California) sea otter likely source• More desirable from genetics perspective• Availability of abandoned pups• SW Alaska DPS incapable of providing donors
• If listed -- regardless of 10j – MMPA take prohibitions still in place• No relief for incidental take from commercial fisheries, irrespective of listing
status• No way to distinguish between sea otters protected from incidental take
(California sea otters) and those not (northern sea otters)
Lessons learned from California reintroductionThreats:• Small population size• Reduced range• Risk of oil spills
Goal: establish at least one additional breeding colony outside present range
Three potential translocation sites considered• Southern Oregon• Northern California• San Nicolas Island
(Channel Islands)
Public Law 99-625 (1986)
• Established separate translocation zone and “no otter” management zones
• Required removal of animals from management zone
Legal and management complications
Compromise over concerns from commercial fisheries No provision for
“experimental population”
PL 99-625
Required FWS to use all feasible non-lethal means and measuresto capture any sea otter in the management zone
• High levels of dispersal
• Injury, mortality from capture and movement
Terminated2012
Important Considerations
Not everyone will welcome the return of sea otters to the Oregon Coast
• 9% overlap with Dungeness crab fishery, 67% with red urchin fishery (Koné 2019)
Work closely with local fisheries• Strategies for minimizing
conflict/competition
The Good NewsComparison of expansion of sea otter populations in SE Alaska and California using diffusion model
Dr. Tim Tinker
Growth rate 15-20%/year in SE Alaska
The Good News
“Spatial topology” is main driver of distribution and density when combined with site fidelity behaviors
Dr. Tim Tinker
Growth rate 3-5%/year in California
Future of reintroduced population in Oregon
• Likely slow growth rate, limited population expansion similar to California
• Distribution patchy, similar to historical range
Status of potential reintroduction?
• Comprehensive feasibility study• Economic assessment• Increased outreach and
engagement with coastal communities and ocean users
• Working with Scientific and Technical Advisory Committee
Photo: Linda Tanner
otter not to scale
Thanks!
Michele_Zwartjes@fws.gov
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