A Defense Authorization bill now on the floor of the U.S. Senate would exempt the Navy from environmental laws protecting California's southern sea otter population, and environmental activists are urging the language be stripped from the bill.
The bill, expected to reach a floor vote in late November, would exempt the Navy from provisions of the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA) in two newly declared "Southern Sea Otter Military Readiness Areas" along the Ventura and San Diego coasts, sharply reducing the level of protection the otters enjoy.
The southern sea otter, Enhydra lutris nereis, is listed as Threatened under the ESA. The subspecies' numbers seem to have plateaued in recent years after an encouraging rebound from a low of 11 animals in the early 20th Century. But the animals have been greatly extending their range since the 1990s, especially in the waters off the Southern California coast.
Restricted to California, the southern sea otter's natural range extends from Pigeon Point on the San Mateo coast down to Ventura County. Until last year, the U.S. Fish and Wildlife Service had attempted to restrict southern sea otter populations south of Point Conception to the coast of San Nicolas Island, where the agency had relocated about 140 otters in the late 1980s as a hedge against oil spill damage to the mainland coast population. USFWS declared the rest of the coast from Point Conception to the Mexican border a "no-otter zone." Otters from farther north along the coast who migrated into the "no otter zone" were relocated. The idea was to manage conflicts between the otters and south coast fisheries.
USFWS now bluntly characterizes that project as a "failure." Sea otters died from handling stress while being relocated, and many of the relocated otters simply swam back to where they wanted to be in the first place. Of the otters moved to San Nicolas Island, for example, many simply headed back to the mainland.
In 1998, in a charming bit of marine mammal civil disobedience, 50 otters swum en masse into the no-otter zone, underscoring the point that attempts to restrict the animals to one side of an invisible line in the ocean were doomed. In the meantime, threats mounted to the otters in areas where they were legal. Diseases ranging from toxocaria from cat litter to cyanobacteria growing in shellfish to simple toxic pollution take a serious toll on the animals. In 2010, hundreds of dead sea otters washed up on the shore, some dead of disease, others having apparently died of shark attacks -- unusual, as sharks generally find otters too lean to bother with.
Given that relocation attempts were failing and that a dispersing population is good insurance against disease outbreaks, and prodded by a lawsuit filed in 2009 by the Otter Project and the Environmental Defense Center, USFWS in 2012 decided to drop its no-otter-zone policy. The San Nicolas Island otters, which had been designated an "experimental population" with lesser protection under ESA, were one again given full protection as members of a Threatened species. The 24-year failed relocation progeam had come to an end.
In its rulemaking last year ending the relocation program, USFWS said that the Navy -- which operates in otter habitat along the Southern California coast -- was unlikely to require special dispensation to avoid running afoul of laws protecting the otter:
Termination of the translocation program through this rulemaking is not anticipated to affect defense-related agency actions that are currently carried out within the translocation zone around San Nicolas Island.... despite the low threshold for MMPA authorization of military activities (i.e., disturb or is likely to disturb a marine mammal or injure or has the significant potential to injure a marine mammal), the Navy has not required MMPA authorization for any of its activities there to date. Therefore, defense-related activities of the type currently carried out at San Nicolas are unlikely to need authorization under the generally higher thresholds of the Endangered Species Act.
In fact, both MMPA and ESA have provisions making it easier for the military to comply with the law, and exemptions available if national security is truly an issue.
But that's apparently not good enough for the Navy, which is seeking, through the pending Authorizations bill, to legislatively reclassify any otter entering its new Southern Sea Otter Military Readiness Areas as a species proposed for listing under ESA, a nifty bit of legal sleight of hand that essentially resets the otters' protection back to the level the San Nicolas Island Experimental population had, but extending that erosion of protection to San Clemente Island and the Ventura and San Diego coasts.
The attempt to classify otters as protected on one side of an invisible line, but less so if they cross the line, is reminiscent of recent attempts to delist the gray wolf in certain states but not in neighboring states: an intrusion into wildlife protection law based on politics rather than science. Groups like the NRDC are campaigning to get the language removed from the Defense Authorization bill.
One of the main groups opposing greater protection for southern sea otters is the sea urchin fishery. Otters eat urchins, and a healthy population of the mammals helps keep urchin population in check. Losing otters means more sea urchins. Though more sea urchins may benefit one particular segment of the fishing industry, the invertebrates rapidly overpopulate the seafloor if they aren't kept in check. Sea urchins eat kelp. Kelp forests rely on otters to eat the sea urchins that would eat them. And as kelp forests are one of California's most ecologically productive habitats, keeping our sea otters happy means protecting an entire thriving but threatened ecosystem.