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111th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 111-175
SOUTHERN SEA OTTER RECOVERY AND RESEARCH ACT
June 23, 2009.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
Mr. Rahall, from the Committee on Natural Resources, submitted the
R E P O R T
[To accompany H.R. 556]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred the
bill (H.R. 556) to establish a program of research, recovery,
and other activities to provide for the recovery of the
southern sea otter, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Southern Sea Otter Recovery and
SEC. 2. SOUTHERN SEA OTTER RECOVERY AND RESEARCH PROGRAM.
(a) In General.--The Secretary of the Interior, acting through the
United States Fish and Wildlife Service and the United States
Geological Survey, shall carry out a recovery and research program for
southern sea otter populations along the coast of California, informed
by the prioritized research recommendations of the Final Revised
Recovery Plan for the southern sea otter (Enhydra lutris nereis)
published by the United States Fish and Wildlife Service and dated
February 24, 2003, the Research Plan for California Sea Otter Recovery
issued by the United States Fish and Wildlife Service Southern Sea
Otter Recovery Implementation Team and dated March 2, 2007, and any
other recovery, research, or conservation plan adopted by the United
States Fish and Wildlife Service after the date of enactment of this
Act in accordance with otherwise applicable law. The Recovery and
Research Program shall include the following:
(1) Monitoring, analysis, and assessment of southern sea
otter population demographics, health, causes of mortality, and
life history parameters, including range-wide population
(2) Development and implementation of measures to reduce or
eliminate potential factors limiting southern sea otter
populations that are related to marine ecosystem health or
(b) Reappointment of Recovery Implementation Team.--Not later than
one year after the date of enactment of this Act, the Secretary shall
appoint persons to a southern sea otter recovery implementation team as
authorized under section 4(f)(2) of the Endangered Species Act of 1973
(16 U.S.C. 1533(f)(2)).
(c) Southern Sea Otter Research and Recovery Grants.--
(1) Grant authority.--The Secretary shall establish a peer-
reviewed, merit-based process to award competitive grants for
research regarding southern sea otters and for projects
assisting the recovery of southern sea otter populations.
(2) Peer review panel.--The Secretary shall establish as
necessary a peer review panel to provide scientific advice and
guidance to prioritize proposals for grants under this
(3) Research grant subjects.--Research funded with grants
under this subsection shall be in accordance with the research
recommendations of any plan referred to in subsection (a), and
may include the following topics:
(A) Causes of sea otter mortality.
(B) Southern sea otter demographics and natural
(C) Effects and sources of pollutants, nutrients, and
toxicants on southern sea otters and sequestration of
(D) Effects and sources of infectious diseases and
parasites affecting southern sea otters.
(E) Limitations on the availability of food resources
for southern sea otters and the impacts of food
limitation on southern sea otter carrying capacity.
(F) Interactions between southern sea otters and
coastal fisheries and other human activities in the
(G) Assessment of the keystone ecological role of sea
otters in southern and central California's coastal
marine ecosystems, including both the direct and
indirect effects of sea otter predation, especially as
these effects influence human welfare, resource
utilization, and ecosystem services.
(H) Assessment of the adequacy of emergency response
and contingency plans.
(4) Recovery project subjects.--Recovery projects funded with
grants under this subsection shall be conducted in accordance
with recovery recommendations of any plan referred to in
subsection (a), and may include projects to--
(A) protect and recover southern sea otters;
(B) reduce, mitigate, or eliminate potential factors
limiting southern sea otter populations that are
related to human activities, including projects to--
(i) reduce, mitigate, or eliminate factors
contributing to mortality, adversely affecting
health, or restricting distribution and
(ii) reduce, mitigate, or eliminate factors
that harm or reduce the quality of southern sea
otter habitat or the health of coastal marine
(C) implement emergency response and contingency
(d) Report.--The Secretary shall--
(1) within 12 months after the date of enactment of this Act,
report to Congress on--
(A) the status of southern sea otter populations;
(B) implementation of the Recovery and Research
Program and the grant program; and
(C) any relevant formal consultations conducted under
section 7 of the Endangered Species Act of 1973 (16
U.S.C. 1536) with respect to the southern sea otter;
(2) within 24 months after the date of enactment of this Act
and every 5 years thereafter, and in consultation with a
southern sea otter recovery implementation team (if any) that
is otherwise being utilized by the Secretary under section 4(f)
of the Endangered Species Act of 1973 (16 U.S.C. 1533(f)),
report to Congress and the public on--
(A) an evaluation of southern sea otter health,
causes of southern sea otter mortality, and the
interactions of southern sea otters with California's
coastal marine ecosystems;
(B) an evaluation of actions taken to improve
southern sea otter health, reduce southern sea otter
mortality, and improve southern sea otter habitat;
(C) recommendation for actions, pursuant to current
law, to improve southern sea otter health, reduce the
occurrence of human-related mortality, and improve the
health of such coastal marine ecosystems; and
(D) recommendations for funding to carry out this
SEC. 3. DEFINITIONS.
In this Act:
(1) Recovery and research program.--The term ``Recovery and
Research Program'' means the recovery and research program
under section 2(a).
(2) Secretary.--The term ``Secretary'' means the Secretary of
the Interior, acting through the United States Fish and
Wildlife Service and the United States Geological Survey.
SEC. 4. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There is authorized to be appropriated to the
Secretary to carry out this Act $5,000,000 for each of fiscal years
2010 through 2015 of which--
(1) no less than 30 percent shall be for research grants
under section 2(c)(3); and
(2) no less than 30 percent shall be for recovery projects
under section 2(c)(4).
(b) Administrative Expenses.--Of amounts available each fiscal year
to carry out this Act, the Secretary may expend not more than 7 percent
to pay the administrative expenses necessary to carry out this Act.
SEC. 5. TERMINATION.
This Act shall have no force or effect on and after the date the
Secretary (as that term is used in section 4(c)(2) of the Endangered
Species Act of 1973 (16 U.S.C. 1533(c)(2)) publishes a determination
that the southern sea otter should be removed from the lists published
under section 4(c) of the Endangered Species Act of 1973 (16 U.S.C.
PURPOSE OF THE BILL
The purpose of H.R. 556, the Southern Sea Otter Recovery
and Research Act, is to establish a program of research,
recovery, and other activities to provide for the recovery of
the southern sea otter.
BACKGROUND AND NEED FOR LEGISLATION
Historically, the range of sea otters extended across the
North Pacific rim from the northern Japanese islands and Russia
through the Aleutian Islands and down the coast of North
America to Baja California, Mexico. The habitat of the southern
subspecies, known as the southern or California sea otter
(Enhydra lutris nereis), ranges from the coastal areas of San
Mateo County to Santa Barbara County in California. A small
translocated population of sea otters exists outside this
range, at San Nicolas Island in Ventura County.
The carrying capacity of the California coast is estimated
at 16,000 animals,\1\ but the current population size, based on
the most recent 3-year running average (for 2006-2008) is only
2,826 animals, less than 20% of its potential size. Through the
years, southern sea otter distribution and abundance have been
inextricably linked with the direct and indirect effects of
human actions. Given California's inevitably increasing human
population and mounting evidence of associated impacts on its
coastal environment and ecosystems, the future of this
population is uncertain.
\1\Laidre, K.L. (2001). ``An Estimation of Carrying Capacity for
Sea Otters along the California Coast.'' Marine Mammal Science
In 1977, the southern sea otter was listed as threatened
under the Endangered Species Act (ESA) and therefore is
recognized as ``depleted'' under the Marine Mammal Protection
Act. It was listed because of its small population size and
limited distribution and because of the potential threat to the
remaining habitat and population in the event of an oil spill.
The U.S. Fish and Wildlife Service (FWS) formed a Southern Sea
Otter Recovery Implementation Team which finalized a recovery
plan in 1982. The plan was reviewed and redrafted in 1991,
1996, 2000, and 2003. Over this time, the population has seen
periods of growth and decline.
In 1986, Congress authorized the translocation and
management of southern sea otters to San Nicolas Island
offshore of southern California (P.L. 99-625). The intent of
the translocation program, undertaken by FWS, was to create a
second population of southern sea otters that could serve as a
source population for future translocations should some portion
of the mainland range become decimated by a large-scale
catastrophe such as an oil spill.\2\ The translocation plan
designated a translocation zone within which sea otters would
be released and protected, and a management zone surrounding
the translocation zone, from which sea otters would be excluded
to reduce resource conflicts between fishers and the
translocated population. Sea otters found within the management
zone were to be non-lethally captured and returned to San
Nicolas Island or to the range of the parent population. By
1990, 140 sea otters had been translocated to San Nicolas
Island, but most left the island shortly after they were
released. Over the years a small group of animals has persisted
at the island, and as of 2008, approximately 40 animals were
\2\Sea otter fur is sensitive to soiling from oil or other
contaminants, and soiling by oil generally results in death.
In 2000, FWS issued a biological opinion finding that
complying with the containment requirements of the
translocation program would likely jeopardize the continued
existence of southern sea otters. In 2005, FWS issued a draft
supplemental environmental impact statement as part of the
process to determine whether to declare the translocation
program a failure. A final supplemental environmental impact
statement has not yet been released.
Even during periods of population growth, southern sea
otters have never increased at more than a fraction of the
species' maximum potential of 17% to 20% per year, typical of
recovery of the northern subspecies.\3\ The slow rate of
recovery of southern sea otters has been attributed to elevated
mortality rather than to a reduced birth rate or emigration.
Southern sea otters die from myriad causes, including
abandonment (as dependent pups), shark attacks, malnutrition,
incidental entanglement in fishing gear, oiling, boat strikes,
shooting, and intoxications caused by extreme proliferations of
harmful algae. Infectious diseases comprise a particularly
large proportion of sea otter deaths, a pattern that has been
attributed to immune deficiencies, elevated parasite loads, and
pathogen exposure, as well as to increasingly scarce food
resources. Persistent organic pollutants and low genetic
diversity may be contributing to suppressed immune function.
Oil spills and range restriction (due to potential enforcement
of a ``management'' or ``no-otter'' zone) are not responsible
for the current high rates of mortality, but the possibility of
a catastrophic oil spill or range restriction remain important
threats that could negatively affect southern sea otter
\3\Estes, J.A. (1990). ``Growth and Equilibrium in Sea Otter
Populations''. Journal of Animal Ecology 59:385-401.
Sea otters apparently lack immunity to many land-based
diseases and parasites. From 1998 to 2006, infectious diseases
were identified as the primary cause of death in over 40% of
the fresh-dead sea otter carcasses examined at the California
Department of Fish and Game Marine Wildlife Veterinary Care and
Research Center in Santa Cruz, California. In addition, two
potentially deadly parasites that cause systemic brain
infections, Toxoplasma gondii and Sarcocystis neurona, were
identified only within the last 10-15 years. The primary route
of T. gondii to the sea is believed to be runoff containing
feces from felids (domestic cats, feral cats, mountain lions,
bobcats) carrying the parasite's eggs. Identifying specific
routes of infection has not yet been possible. The parasite S.
neurona, which is shed in the feces of opossums, probably
reaches sea otters by a similar route of runoff and
concentration in marine invertebrate prey, but as with T.
gondii infections, the specific pathways are unknown.
Infections with thorny-headed worms (Profilicollis spp.)
killed about 15% of the fresh-dead sea otters examined from
1998-2006 and are a significant cause of death, particularly in
the Monterey Bay region. Persistent organic pollutants in the
blood of southern sea otters are present at 50 to 100 times the
levels seen in Alaskan sea otters. Associations between
significantly higher levels of a number of persistent organic
pollutants in tissues and death due to disease have been
identified in a number of studies on deceased sea otters. Toxic
algal blooms, some of which appear to be associated with
nutrient loading of near shore waters from terrestrial sources,
have caused mortality events in sea otters.
Another issue impacting sea otter recovery is food
limitation. As sea otter populations and densities in a
particular area increase, competition for food or prey can
affect the body condition, health, and survival of some otters.
Limited food resources may be affecting southern sea otter
recovery in certain parts of their existing range. For example,
sea otters at San Nicolas Island are larger and spend less time
foraging than those in the central part of the range; their
diet is dominated by a few energy-rich species, and food
availability is much greater (1-2 orders of magnitude higher)
than in central California. The dietary diversification that
has occurred in response to food limitation in central
California exposes sea otters to new parasites and disease
pathogens, so that food limitation and disease may be acting
synergistically to increase mortality. Together, these data
suggest that food limitation is potentially an obstacle to the
recovery of sea otters in central California and that sea
otters in central California may be at or near the
environmental carrying capacity.
In order for population growth to occur, sea otters must be
able to expand their range into areas with more abundant prey
resources. Range expansion may result in conflicts with fishers
over resource allocation and gear restrictions and will require
coordination with recovery efforts for the endangered white
abalone (Haliotis sorenseni) and black abalone (H.
Despite the number of continuing threats to the southern
sea otter and the population's modest growth rate, it is
conceivable that the FWS could delist the southern sea otter in
the future. In order for southern sea otters to be considered
for delisting under the ESA, the 3-year running average must
exceed a threshold of 3,090 animals for three continuous years.
Even after delisting under the ESA, the southern sea otter will
continue to receive protection under the Marine Mammal
Protection Act. At that time, FWS will make a formal
determination of the southern sea otter's ``depleted'' status
in relation to its optimal sustainable population (OSP) size,
which is estimated to be approximately 8,400 individuals.
Recovery and attainment of the OSP level for southern sea
otters will depend on a better understanding of the relative
importance of, and interaction between, various causes of
mortality and the means to mitigate them.
H.R. 556 directs FWS to implement a program assessing
important aspects of southern sea otter population
demographics, health, mortality and life history parameters; to
develop measures to reduce or eliminate factors related to
marine ecosystem health or human activities that limit sea
otter populations; and to do so in accordance with consensus
recommendations made by the Service's published Southern Sea
Otter Recovery Plan.
The bill is necessary to provide a stable and reliable
source of funding for critically needed research, monitoring,
and implementation of recovery actions. Past funding by FWS has
been inadequate to meet these needs. The benefits of the
research, monitoring, and recovery actions funded by the bill
will apply to sea otters, but because sea otters are a keystone
and a sentinel species, the benefits will also translate to the
California coastal ecosystem as a whole.
H.R. 556 was introduced by Representative Sam Farr (D-CA)
on January 15, 2009. The bill was referred to the Committee on
Natural Resources, and within the Committee to the Subcommittee
on Insular Affairs, Oceans and Wildlife.
On May 5, 2009, the Subcommittee held a hearing on the
bill. On June 10, 2009, the Subcommittee was discharged from
further consideration of H.R. 556 and the full Natural
Resources Committee met to consider the bill. Subcommittee
Chairwoman Madeleine Z. Bordallo (D-GU) offered an amendment in
the nature of a substitute to eliminate the Sea Otter
Scientific Advisory Committee and direct FWS to utilize its
existing authorities under the ESA to reappoint a Southern Sea
Otter Recovery Implementation Team, and to utilize peer review
panels, as necessary, to provide scientific advice and guidance
in prioritizing grant proposals. The substitute also requires
the Secretary of the Interior, within two years and every five
years thereafter, and in consultation with the Recovery
Implementation Team, to recommend funding for further
activities to implement the Act.
Representative Don Young (R-AK) offered an amendment to the
amendment in the nature of a substitute, which was modified by
unanimous consent, to terminate the Act upon the delisting of
the southern sea otter under the ESA. The modified amendment to
the amendment in the nature of a substitute was adopted by
voice vote. The amendment in the nature of a substitute, as
amended, was then adopted by voice vote. The bill, as amended,
was then ordered favorably reported to the House of
Representatives by voice vote.
Section 1. Short title
This section provides that this Act may be cited as the
``Southern Sea Otter Recovery and Research Act.''
Section 2. Southern Sea Otter Recovery and Research Program
This section requires the Secretary to carry out a recovery
and research program for southern sea otter populations along
the coast of California informed by the prioritized research
recommendations of the Final Revised Recovery Plan for the
southern sea otter (Enhydra lutris nereis) published by FWS and
dated February 24, 2003, the Research Plan for California Sea
Otter Recovery issued by the FWS Southern Sea Otter Recovery
Implementation Team and dated March 2, 2007, and any other
recovery or research plan adopted by FWS. The Committee
recognizes that these documents contain numerous research and
recovery recommendations that should provide the foundation of
recovery and research program. The Committee also recognizes
that the Revised Recovery Plan is now seven years old and the
recovery and research recommendations therein may require
updating and reprioritization to accommodate new scientific
information and state ocean policy initiatives. It is the
Committee's intent that the Secretary has the flexibility to
use these documents, subsequent revisions, and other scientific
literature to effectively implement its Recovery and Research
This section also directs the Recovery and Research Program
to monitor and analyze southern sea otter population
demographics, health, causes of mortality, and life history
parameters, including range-wide population surveys. The
Recovery and Research Program will also develop and implement
measures to reduce or eliminate potential factors limiting the
southern sea otter population that are related to marine
ecosystem health or human activities.
Subsection (b) directs the Secretary to reappoint a
Southern Sea Otter Recovery Implementation Team authorized
under section 4(f)(2) of the ESA not later than one year after
the date of enactment of this Act.
Subsection (c) establishes a peer-reviewed, merit-based
process to award competitive grants for southern sea otter
research and for projects assisting the recovery of southern
sea otter populations. This subsection also directs the
Secretary to establish, as necessary, a peer review panel to
provide scientific advice and guidance to prioritize proposals
This subsection provides that research grant subjects may
include eight listed topics. This list is not exhaustive, but
rather illustrative, and as time goes by the Committee expects
that research priorities will change based on the accumulation
of scientific information and the emergence of new threats.
This subsection also directs the Secretary to provide
grants for a number of different types of recovery projects.
Subsection (d) directs the Secretary to report, within 12
months after enactment, on the status of southern sea otter
populations; implementation of the Recovery and Research
Program and the grant program; and any relevant formal
consultations conducted under section 7 of the ESA with respect
to southern sea otters.
This subsection also requires the Secretary, within 24
months of enactment and every five years thereafter, and in
consultation with the Southern Sea Otter Recovery
Implementation Team, to report on the health of southern sea
otters; the causes of southern sea otter mortality; and
interactions of southern sea otters with California's coastal
marine ecosystems. The report will also evaluate the
effectiveness of actions taken to improve southern sea otter
health, reduce southern sea otter mortality, and improve
southern sea otter habitat. Based on that evaluation the report
will recommend actions to improve southern sea otter health,
reduce human-related mortality, and improve the health of
coastal marine ecosystems. Finally, the report will also
include recommendations regarding funding to carry out the Act.
Sec. 3. Definitions
Section 3 defines key terms included within the text of the
proposed legislation, including ``Recovery and Research
Program'' and ``Secretary'' where they appear in the bill.
Section 4. Authorization of Appropriations
This section authorizes $5,000,000 for each of fiscal years
2010 through 2015 and caps the administrative expenses at 7
percent. The authorization is further allocated with 30 percent
of the authorization for research, 30 percent for recovery
activities, and the remainder provided to the Secretary of the
Interior for additional grants for either research or recovery
Section 5. Termination
This section terminates the Act on or after the date the
Secretary publishes a determination that the southern sea otter
should be removed from the lists published under section 4(c)
of the ESA.
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.
CONSTITUTIONAL AUTHORITY STATEMENT
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
COMPLIANCE WITH HOUSE RULE XIII
1. Cost of Legislation. Clause 3(d)(2) 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)(3)(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.
2. 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.
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 is to
establish a program of research, recovery, and other activities
to provide for the recovery of the southern sea otter.
4. Congressional Budget Office Cost Estimate. 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
H.R. 556--Southern Sea Otter Recovery and Research Act
Summary: H.R. 556 would authorize the appropriation of $5
million annually over the 2010-2015 period for the Fish and
Wildlife Service and the United States Geological Survey to
carry out a recovery and research program affecting the
southern sea otters along the coast of California. The program
would include awarding competitive grants for research
regarding the otters and for projects to assist in the recovery
of the otter population. Assuming appropriation of the
authorized amounts, CBO estimates that carrying out those
activities would cost $20 million over the next five years.
Enacting the bill would not affect direct spending or revenues.
H.R. 556 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 556 is shown in the following table.
The costs of this legislation fall within budget function 300
(natural resources and environment).
By fiscal year, in millions of dollars--
2010 2011 2012 2013 2014 2010-2014
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Authorization Level..................................... 5 5 5 5 5 25
Estimated Outlays....................................... 2 3 5 5 5 20
Basis of estimate: For this estimate, CBO assumes that H.R.
556 will be enacted near the end of fiscal year 2009 and that
the authorized amounts will be appropriated for each year.
Estimated outlays are based on historical spending patterns for
Estimated intergovernmental and private-sector impact: H.R.
556 contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
Estimate prepared by: Federal Costs: Susanne S. Mehlman;
Impact on State, Local, and Tribal Governments: Melissa
Merrell; Impact on the Private Sector: Amy Petz.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
H.R. 556 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e) or 9(f) of rule XXI.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes in existing
We are concerned that this bill will force the U.S. Fish
and Wildlife Service to take actions and use funds for the
Southern sea otter that the Service would otherwise classify as
a lower priority when allocating species recovery funds under
the Endangered Species Act (ESA). The Service testified at our
Subcommittee hearing that ``the bill could divert funds from
other high priority recovery actions for threatened and
endangered species in California.''
The Service is the agency with management authority over
the Southern sea otter and a number of other animals listed
under the ESA. The Service should be afforded the opportunity
to make its own determinations on how to best use the funds
given to the agency for ESA recovery actions.
The original intent of the ESA was to protect and preserve
species that have been identified as threatened or endangered.
Over the past 36 years nearly 2600 species have been listed for
protection. Although the ESA was intended to recover species,
subspecies and distinct population segments of animals and
plants threatened or endangered with extinction, 1 percent of
the total number of U.S. species listed have been recovered
and/or removed from the endangered list. Today, of the 2531
listed species on the ESA list, 1,959 are US domestic species
and 572 are foreign species.
Under the ESA, at the time a species is listed, the
government is required to designate critical habitat. Critical
habitat is designated to alert the public and other
governmental units to the habitat needs of the species. The
only exception to this rule is where the Secretary of the
Interior finds that it is not prudent to do so. The Service has
designed critical habitat for 543 species or 27 percent of all
For many years, due to a high demand on its stretched
resources, the Service has been unable to comply with certain
deadlines imposed by the ESA for completing critical habitat
designations. In response, private litigants have repeatedly
sued the Service because it has failed to meet these statutory
deadlines. These lawsuits have subjected the Service to an
ever-increasing series of court orders and court-approved
settlement agreements. For example, the Bush Administration
faced 369 listing related suits, or 185 more than were filed
during the Clinton Administration. As a result, compliance with
these court actions now consumes nearly the entire listing
program budget. This leaves the Service with little ability to
prioritize its activities or to direct scarce listing resources
to program actions most urgently needed to conserve species. In
fact, the former Director of the Service has testified that the
Service had not listed a single species on its own initiative
since 1994 because of ongoing court litigation.
Although recovery is the primary goal of the program,
evidence suggests that recovery efforts have produced limited
results, implementing recovery actions plans are often low
priority, and that recovery actions are not properly monitored.
As a result, although the recovery program receives the highest
percentage of funding among ESA programs, accomplishments are
largely unknown and the agency is unaccountable for the
effectiveness of the recovery efforts. As of May 30, 2009, the
Service had developed 559 final recovery plans covering 1,084
As stated above, only about 1 percent of the total number
of species listed have been recovered and removed from the
endangered list. In the more than three decades since the ESA's
passage only a handful of species have ``recovered'' and been
removed from the endangered list. In fact, fewer species have
been delisted because of recovery than because the data used to
justify their endangered listing was wrong.
Of the 49 domestic and foreign species delisted, nine were
removed due to extinction and 17 were removed as data errors.
The remaining 23 species have been claimed as ``recovered.''
The primary factor in the recovery of several of these species
was the ban on DDT, which was unrelated to and predated the
Endangered Species Act. However, in at least six of these
``success'' cases, analysis of the Service data indicates that
the threat to the species was overestimated.
Problems with the recovery program include the low priority
given to developing and implementing plans. For example, since
recovery plan activities are not regulatory requirements, they
often receive lower priority than other actions, such as
critical habitat designations and consultations, which are
required by regulation and, increasingly, subject to
litigation. In addition, because the Service does not have a
centralized system to track and monitor recovery activities,
the information on species' status may be questionable and
because the Service lacks good criteria for downlisting or
delisting a species, the ability to measure recovery progress
Congress intended for this law to be used to recover
species and to increase the number of those in need before
triggering federal regulation (and its attendant restrictions
on property rights). To merely prevent the extinction of a
species is not a long-term measurable success. Congress never
dreamed that it would turn into a tool used by vocal and well-
funded special interest groups seeking to impose court ordered
federal land and water use controls on the majority of
We should take the time to have oversight hearings to
review the agency's funding decisions. We should also look at
the ESA as a whole to see what changes, modifications or
reforms are necessary to the Act and not pass new legislation
for a single listed species.
While the Amendment in the Nature of a Substitute adopted
in Committee addressed some of our concerns and made this
legislation better, we remain concerned about the precedent
H.R. 556 will have with regard to listed species under the
Endangered Species Act. It is particularly interesting that
this legislation singles out a species that while
``threatened'' is far more likely to survive in the future then
a number of highly endangered species which desperately need
recovery funding, which may now be diverted by Congressional
fiat to ``recover'' the merely threatened Southern sea otter.