*March, 2012 UPDATE* – For the latest information on bill H.R.4043 visit our media section here.
The Otter Project believes that the “No-Otter” Zone is harmful to otters, conservation, and the communities of southern California. In 2009 The Otter Project and the Environmental Defense Center of Santa Barbara filed a lawsuit against the U.S. Fish and Wildlife Service over its failure to protect sea otters in the “No-Otter” Zone.
In 1987 the U.S. Fish and Wildlife Services (FWS) declared the area from Point Conception to the Mexican border as a “No-Otter” Zone, as part of a program to establish an experimental population of otters on San Nicolas Island. In order to legally translocate otters, which were protected by the Marine Mammal Protection Act in addition to the Endangered Species Act, the Service had to seek special permission from Congress. In 1987 P.L. 99-625 was passed, authorizing the Service to develop a translocation program on the condition that they included a sea otter “management zone” to protect certain industries. The Service chose to translocate otters to San Nicolas Island, and designate the entire rest of southern California as the management zone, which has since been dubbed the no otter zone.
The policy was included to protect special industry interests. Fisheries were worried that otters would out-compete them for commercially valuable species like lobster, crab, sea urchin, and abalone. Oil industries were worried that having a highly charismatic protected species such as sea otters—highly sensitive to the risk of oil spills—would impede their industrial activities.
As a result, otters in the “No-Otter” Zone lose important protections, including protection against incidental take, and the full scrutiny of agency involvement in permitting activities that may affect otters (such as oil drilling).
Ironically, FWS designed the translocation program to protect the otter population from oil spills. The creation of an otter colony in southern California was driven by the realization that sea otters in California could be wiped out entirely by a single oil spill. The San Nicolas Island colony was expected to provide a stock of otters that could be used to replenish the parent population in the event of a spill. In 1987 the Service began moving otters out to San Nicolas Island, a remote island in the southern end of the Channel Islands, used only by the Navy.
The translocation program failed. Most of the otters vanished from the island. Some died, some swam across the deep waters of the Santa Barbara channel to return to their mainland homes, and many simply disappeared. By 1993 only 12 otters remained. This was far short of the establishment goal, which the Service set at 150 otters with an annual increase of 20 animals. The goal was to be able to replenish the parent population at a rate of 25 young otters a year in the event of a catastrophic oil spill; the Service expected the experimental population to be established within 5 or 6 years.
Although the translocation failed, the Service still found itself chasing otters out of the “No-Otter” Zone. From 1987 to 1993, 24 sea otters were captured and removed. This was proving to be costly (some estimates place the cost of translocation at $10,000 per otter!) and also ineffective. Some otters swam back. Others were found dead shortly after capture, calling into question the safety of the process, which was required to be “non-lethal”. In 1993, the Service stopped containing sea otters. They did not, however, address the policy, and the no otter zone remained on the books.
This went unquestioned until 1998 when a raft of 100 otters rounded the point and took the no otter zone by storm! Suddenly, the services’ do nothing attitude was called into scrutiny. The community of Santa Barbara began to question the role of sea otters in its coastal ocean. Fishermen demanded that the Service uphold its end of the ‘bargain’ and move the otters out of the zone. Conservationists backed the Service up, questioning the sustainability of the no otter zone, which had proven to be a costly, ineffective management tool. In 2000 the Commercial Fishermen of Santa Barbara filed a lawsuit demanding that the policy be upheld. The Service, however, had initiated its own process to examine the issue. The judge agreed to let the Service address the problem through its own regulatory process, and the parties voluntarily dismissed the case. In 2001 FWS formally declared that it would not move otters out of the zone, and that it would evaluate the translocation program, making a final decision within several years.
Several years passed. In 2005 the Service issued a Draft Supplemental Environmental Impact Statement (DSEIS), which included a draft evaluation declaring the program a failure, and a biological opinion stating that the program had “direct and indirect adverse effects on the survival and recovery of the southern sea otter”. (FWS, 2000) The DSEIS explored several management alternatives, and identified Alternative 3(C)—ending the “No-Otter” Zone and leaving the remaining otters on San Nicolas Island alone—to be the preferred alternative. The public overwhelmingly supported this outcome.
Although the Service held several public meetings, solicited public commentary on the DSEIS, and promised to issue a final decision with a year, no decision on the translocation program or the no otter zone has ever been made. Meanwhile, sea otters are moving south into hostile waters frequented by fishermen who want to see them kept out.
In 2009, after years of asking FWS to release a final ruling on the “No-Otter” Zone, The Otter Project joined with the Environmental Defense Center of Santa Barbara to sue the U.S. Fish and Wildlife Service over their failure to act in ending the no otter zone. The case against FWS was settled in November 2010 and requires that FWS:
• Prepare a draft Environmental Impact Statement and draft “failure determination,” assessing whether the translocation program has succeeded or failed, by September 1, 2011;
• If FWS makes a draft determination that the rule has failed, also publish a proposed rule by September 1, 2011 to terminate the program;
• Following public comment on the proposed rule, complete a final Environmental Impact Statement and final failure determination by December 7, 2012.
Meanwhile, the otters are moving farther south! While this is cause for celebration for most residents of Santa Barbara, certain industries might be less than pleased to see the otter’s return. It’s essential to ensure that otters in hostile waters have FULL protection of the law.