PROTECTING THE SOUTHERN SEA OTTER
*UPDATE 12/18/12*The "No Otter Zone" Is No More
*UPDATE 8/17/12* the U.S. Fish and Wildlife Service (FWS) proposed to abolish the failed effort to get rid of an 1987 rule prohibiting southern sea otters from southern California waters. This enormous 'no otter zone' was created in an effort to address fishing and oil industry opposition to the establishment of a new population of otters, listed as a threatened species under the Endangered Species Act, at San Nicolas Island in order to save the species from extinction in the event of a catastrophic oil spill.
BACKGROUND: The Environmental Defense Center has worked for nearly a decade to restore the threatened southern sea otter to southern California waters, which comprise a significant portion of the species’ historic habitat. Although the sea otter historically ranged throughout the length of the California coastline and into Baja, it today is restricted to a single population in central California.
Despite this perilous status, the U.S. Fish and Wildlife Service in 1987 finalized a rule designating nearly all southern California waters as a “no otter zone.” The 1987 rule grew out of a proposal to establish a second sea otter population, through reintroduction, at San Nicolas Island, located 60 miles off of southern California’s coastline. The proposal generated intense opposition from fisheries interests, however, and as a result the Service crafted a “compromise” regulation allowing the reintroduction but barring otters from all other areas in southern California.
As part of this compromise, the 1987 rule requires the Service to conduct an evaluation of the translocation effort as measured by five “failure criteria.” If any of these criteria are met, then the Service is required to withdraw the portion of the rule barring otters from southern California. From its beginning in August 1987, the translocation effort has been plagued with difficulty, with large numbers of otters dying during translocation or simply disappearing, and a viable population of otters has never been established at San Nicolas. Although the Service has issued draft decisions concluding that at least one of the failure criteria have been met since as early as 1990, it has never finalized those decisions.
Today, the Service’s longstanding delay in applying the failure criteria has itself become of the primary obstacles to recovering the southern sea otter. While the species has begun to naturally expand its range into southern California waters, the sea otter remains officially “illegal” south of Point Conception, and is not provided the full ESA protections it would otherwise receive from energy development, fishery practices, and other harmful actions.
Frustrated with governmental delay that has now spanned more than two decades, EDC and our client, The Otter Project, filed a federal lawsuit in September 2009 challenging the Service’s failure to apply the failure criteria. Following the judge’s rejection of FWS and fishing industry attempts to dismiss the suit, we settled the case in December 2010. Under the settlement, FWS has agreed to finally make a decision by December 2012, following preparation of an environmental impact statement and compliance with other environmental laws, including the ESA. By creating an enforceable and clear timeline for FWS to finally revisit the “no otter” zone designation, our lawsuit settlement has provided a clear path towards allowing this “keystone” species to reclaim its rightful place in the southern California marine ecosystem.
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