BOSTON PUBLIC LIBRARY 



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letter from richard n. smith, director, fish and wildlife service 



March 24, 1992. 



Dr. WiLLL\M W. Fox, Jr. 

 National Marine Fisheries Service, 

 Silver Spring, MD 20910 



Dear Bill: The Department of the Interior rec< itly provided comments to Dr. 

 Charles Kamella on the National Marine Fisheries ?>ervice (NMFS) revised draft of 

 the Proposed Regime to Govern Incidental Taking oi Marine Mammals in Commer- 

 cial Fishing Operations (copy enclosed). However, I feit it might be useful if I wrote 

 to you directly about conciems the Fish and Wildlife Service (Service) has with the 

 proposal as it relates to southern sea otters and West Indian manatees, both of 

 which are protected under the Endangered Species Act (ESA). If implemented, we 

 are concerned that the regime proposed by NMFS will undermine hard won con- 

 servation measures already established for these specie?. 



The decline of the California sea otter population form the mid-1970's to mid- 

 1980's has been largely attributed to accidental drownings in fishing nets. It was 

 only after the 1990 California closure of gill and trammel net fishing within the 30 

 fathom contour that most if not all inci dental take was eliminated within the sea 

 otter range, effectively achieving the zero mortality mal of the Marine Mammal Pro- 

 tection Act (MMPA) and the draft revised recovery plan. Congress acknowledged the 

 adverse impact of conunercial fisheries on southern («a otter populations when it 

 expressly excluded them from the 5-year commercial fishery exemption granted in 

 the 1988 amendments to the MMPA. I suggest that this establishes a precedent for 

 excluding from the proposed regime endangered and threatened species known to 

 be hi^ly vulnerable to mcidental take by commercial fisheries. 



PHirther, in 1986, Congress passed Public Law 99-625 authorizing the establish- 

 ment of an experimental population of southern sea otters. This special legislation, 

 which is independent of the MMPA and ESA, includes zonal management whereby 

 incidental take is prohibited in the transU-cation area around San Nicolas Islana. 

 Outside this area in the "management zone," intentional take is prohibited, but inci- 

 dental take, such as hy conunercial fisheries, is not a violation of the ESA. We be- 

 lieve the proposed regime, were it applicable to southern sea otters, would possibly 

 conflict with the translocation law. 



The U.S. population of the West Indian manatee is classified as a separate sub- 

 species and numbers approximately 1,455 individuals. Most remaining populations 

 outside of Florida are thought to oe small and declining in size due to poaching, 

 incidental take in nets, habitat den'adation, and other uireats. Thus, the species' 

 long term survival may depend on the success efforts to protect it in the soutneast- 

 em United States. 



In 1990, 216 dead manatees were salvaged in the southeastern U.S.; in 1991, 181 

 were salvaged. Nearly one-third of these deaths wei~e human-related, most due to 

 motorboat collisions but some were the result of tangling in nets or in trap lines. 

 Considering its low reproductive rate, it is not likely the species can sustain this 

 level of mortality and continue to survive. The Service has taken the position in our 

 section 7 biological opinions under the ESA, that the incidental take of one manatee 

 would present a jeopardy situation. Therefore, we believe that any analytical system 

 that purports to desi^ate any level of incidental take for the manatee would be in 

 violation of that section of the ESA. Both the Revised Manatee Recovery Plan and 

 the draft revision of the Southern Sea Otter Recove;-y Plan identify recovery tasks 

 which specifically address the need to reduce the inciaental take to levels approach- 

 ing zero. 



Another concern expressed in the Department's January 28 letter is the failure 

 of the document to acknowledge the Service's management responsibility for the 

 species under our jurisdiction, including our recovery responsibility under the ESA. 

 Despite our noting this in our comments on the original draft, the omission per- 

 sisted in the revised version. Furthermore, the revised draft includes revised for- 

 mulae which translate into even higher Potential Biological Removal (PBR) levels 

 than those in the original draft. For manatees the PBR increased from 2 to 14; for 

 southern sea otters the PBR increased from 9 to 58. These levels would exceed the 

 jeopardy level for these species and therefore heighten my concern for the future 

 of these species under the proposed regime. 



The Service is opposed to any sanctioning or perceived sanctioning of incidental 

 take of these species by commercial fishing activities. Although we prefer exclusion 

 of endangered and threatened species unoer Service jurisdiction from the proposed 

 regime, we would be willing to discuss alternatives that effectively accomplish the 

 same result, to the extent they were not precluded by special legislation such as the 

 sea otter translocation law. 



