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