Public Employees for Environmental Responsibility

July 15, 2020

Comments: Migratory Bird Permits: Management of Conflicts Associated with
Double-Crested Cormorants (Phalacrocorax auritus) Throughout the United
States Proposed Rule by FWS on 06/05/2020 ID: FWS-HQ-MB-2019-0103-1411

These comments are submitted on behalf of Public Employees for Environmental
Responsibility (PEER):

1. Public Resource Depredation Reversal Unexplained

In Chapter 3.0 of the 2017 Environmental Assessment for issuing
Double-crested Cormorant (DCCO) depredation permits, the U.S. Fish and
Wildlife Service (FWS) eliminated reduction of adverse impacts on
free-swimming fish populations from the list of resources qualifying for
permits. In section 3.2, FWS stated that to determine if there may be
significant impacts essential to a reasoned choice among alternatives the
agency would need additional information requiring analyses beyond the scope
of the EA. FWS acknowledged that scientific evidence to demonstrate DCCO
presence as a limiting factor for declines in free-swimming fish on a
landscape level was limited, and that available data indicate impacts are
likely site-specific. FWS also noted limited ability to clarify whether DCCO
depredation on free-swimming fish is compensatory or additive and that in
some systems, the issue is further complicated by introduction of invasive
species.

In 2020, however, FWS revived the idea of a Public Resource depredation
permit for 48 states and an unknown number of tribes yet cites no new
information to justify the reversal of its 2017 position.

2. Not Science Based

The current FWS proposal is not based on new scientific research. Indeed,
the new proposal appears as legally vulnerable as the predecessor
Depredation Orders (DOs) which were invalidated by court order in 2016 in a
lawsuit brought by PEER.

In the succeeding years, FWS has failed to take the required “hard look” at
impacts or to explore alternatives. Instead, FWS appears to have fashioned
what it believes to be a political solution that is unsupported by any
scientific research. In short, this proposal appears to be the antithesis of
competent wildlife management.

3. Nature of Conflict Undocumented

The purported purpose of the new FWS plan is to reduce predation of fish by
DCCOs. Yet, FWS has not even specified which fish populations are at risk
from unabated DCCO predation.

In the prior litigation, PEER and co-plaintiffs offered significant evidence
that DCCOs actually benefitted native fish populations by feeding on
invasive species that were competing with those native stocks. FWS offers no
evidence that these impacts have changed.

Further, FWS overlooks evidence in its own Draft Environmental Impact
Statement (DEIS) that

* The majority of studies find that important commercial and
sport-fish species made up a very small proportion of the cormorant diet.
(p.30)
* Invasive fish make up much of DCCO diets, up to 85% of the biomass
during periods of the breeding season, (p.31)
* There remains “much controversy regarding whether cormorants, in and
of themselves, have the ability to affect an entire fish population.” (p.33)

In addressing the criticism that FWS has failed to show that
avian-suppression measures have had an appreciable impact on the fish
populations that such measures were supposed to protect, FWS response is
that “assessing the influence of predation on a fishery is a complex
endeavor that requires vast amounts of data.” (DEIS, p.33). Yet, FWS has not
marshalled any of this data.

Instead, it offers vague generalities. In its Federal Register notice FWS
states:

“Importantly, reducing the abundance of double-crested cormorants is not the
goal of the Service or this proposed management action. Reducing their
overall abundance does not guarantee that conflicts in specific areas will
decrease. If cormorants are attracted to an area due to food resources,
nesting habitats, or other factors, those places will remain attractive
regardless of the size of the cormorant population and may still experience
damage to the resources. Rather, the goal of the Service is to reduce the
number of conflicts with cormorants by combining lethal and nonlethal
methods and allowing the lethal take of cormorants only when supported by
information that such take would reduce conflicts.”

This distinction is meaningless, however, since FWS lacks data to indicate
whether conflicts will be reduced.

4. No Coherent Explanation for Eschewing Individual Permit System

In his May 25, 2016 ruling, U.S. District Judge John D. Bates concluded that
revoking or vacating these DOs was the appropriate remedy by finding that
individual permits for removal, as are used for most other birds protected
by the Migratory Bird Treaty Act (MBTA), would be sufficient to alleviate
any “any serious detrimental impact” caused by cormorants.

Nothing in the latest FWS filing invalidates that finding or explains why
the issuance of individual depredation permits is an unworkable approach for
controlling excessive DCCO damage.

In its Federal Register notice, FWS stated that “between 2007 and 2018, the
number of permit requests to take depredating birds (exclusive of requests
to act under the depredation orders) increased from slightly less than 200
to almost 300.” This hardly seems like a burdensome number, considering it
covers all bird species. FWS does not specify the number of depredation

permits it has issued in the past few years for DCCOs except to claim that
they are administratively burdensome.

In that notice, the FWS declares that “the use of only depredation permits
to address conflicts will become increasingly time- consuming and
cumbersome, and will be less responsive to needs of those seeking relief
from conflicts with cormorants.” The basis for that statement is not
articulated.

In its place, FWS proposes far more elaborate permits for 48 states, the
District of Columbia, and an unknown number of tribes. Unless FWS does not
intend to perform the monitoring described in its DEIS, the level of
administrative burden on FWS will actually increase under its proposed rule.

In the DEIS, FWS concedes it “can still authorize the take of as much as
76,000 cormorants nationwide under depredation permits for other purposes
(e.g., human health and safety, property, aquaculture, vegetation,
co-nesting species damage).” (P.62). However, FWS does not explain why the
take of that many DCCOs is insufficient.

5. One-Size-Fits-All Proposal Inappropriate

Contrary to the earlier DOs which were limited to Eastern states, the new
FWS proposal is national (the lower-48) in scope. Yet, FWS makes no showing
that there is a DCCO problem in all 48 states or that shoot-on-sight permits
are an appropriate remedy in any one state.

In the earlier litigation, the lack of appropriate controls in DCCO hunting
programs within South Carolina and Texas was a factor in the ruling striking
down the DOs. FWS offers no evidence indicating that the failures of these
state programs have been cured.

6. Sole Focus on DCCOs Unexplained

DCCOs are not the only aquatic wildfowl that eat fish, yet it is the only
species FWS targets for mass lethal removal. FWS offers no evidence
justifying this singular focus. If all DCCOs were suddenly to be lethally
removed, it is unclear whether other birds would fill that void with the
same impact on fish populations.

The closest thing to a rationale can be found in the DEIS where it explains
why the No Action alternative was rejected:

“Because mortality of cormorants would occur only from natural causes, the
continental and regional populations would likely increase to the carrying
capacity of the landscapes they inhabit before density-dependent mortality
and/or recruitment limit further growth. At that point, the populations
would stabilize around a mean value, although annual and periodic
fluctuations in abundance around that mean would occur due to extant
environmental conditions. Given the growth of cormorant populations in the
absence of lethal management efforts, the abundance of cormorants likely
would be higher than it is currently. Additional population growth would
result in increased conflicts between cormorants and society exacerbating
issues that presently exist. Therefore, we do not believe this alternative
to be a reasonable action.” (p.20)

This is hardly a compelling rationale. Nor does it explain why this
reasoning would not apply to every cormorant species or every fish-eating
bird species.

7. Bias against Non-Lethal Measures

The FWS Potential Take Limit model used to justify killing more than 123,000
wild cormorants presupposes the failure of non-lethal measures in favor of
lethal removal. However, the empirical basis for this presupposition is
never presented, let alone explained.

The DEIS cites studies that “have shown that harassment at hatchery release
sites is often sufficient to reduce cormorant foraging until fish are able
to disperse. Likewise, non-lethal measures are sometimes effective at
deterring migrating cormorants from foraging on local fish stocks as they
are moving through an area.” (p. 62)

FWS claims that it permits would require that non-lethal means are exhausted
prior to undertaking lethal removal. If these studies are correct, no lethal
take should be required to protect fish populations and state-wide permits
would be unnecessary.

8. Take Level May Be Excessive

The DEIS states that the current estimate of cormorant abundance in the
continental U.S. and Canada is 871,001 to 981,394 birds. (p.24). FWS’
proposal would set an allowable take of 123,157 cormorants per year,
nationally. (p.10)

That take level would allow removal of between 1 in 7 and 1 in 8 cormorants
in North America every year for the five-year duration of the permits.

Notwithstanding FWS’ convoluted Potential Take Level calculations, this take
allowance appears excessive and could destabilize DCCO populations.

9. FWS Lacks Ability to Monitor

These high take levels underscore the importance of FWS monitoring of DCCO
populations, what the DEIS labels “an important component of all the
alternatives.” (p.10)

Yet, FWS admits that it “has not yet developed population-monitoring
programs for the alternatives presented in this DEIS.” (p. 57) The Service
also concedes that “To minimize significant negative impacts to the Southern
and Western populations, the Service would need to develop a more
comprehensive take-tracking program that would entail participation of
monitoring from WS [USDA Wildlife Service], states, tribes, and commercial
aquaculture facilities to ensure authorized take levels are not exceeded.”
(p. 58)

FWS further recognizes the particular vulnerability of “the Western and
Southern populations, which may be more vulnerable to negative impacts if
authorized take is exceeded.” (p. 72) These are regions that were outside
the scope of the previous DOs.

Yet, it is not at all clear that FWS has the ability or the organizational
will to invest in achieving substantially upgraded monitoring capability,
especially since the driving motive behind this plan is easing the agency’s
administrative burden. In sort, FWS should not proceed with this proposal
until it has developed the monitoring capacity to prevent excessive DCCO
take.

10. Harm to Co-Nesting Birds Inappropriately Minimized

The DEIS acknowledges “an increasing concern” about harm to co-nesting birds
who will also be driven from their nests during DCCO take operations and
creating “opportunities for gulls to prey on eggs and chicks” of co-nesting
species (p.45). Yet, on the next page of the DEIS, FWS goes on to minimize
this concern with the statement –

“However, the Service anticipates the unintentional take of nontarget
species to occur infrequently and involve very few individuals of a
particular species.” (p.46)

FWS offers no evidence or analysis for this apparently unfounded optimism.

11. No Meaningful Check on Take of Look-Alike Birds

FWS also discounts the danger to look-alike bird species, such as neo-tropic
cormorants, great cormorants, and anhingas. The DEIS points out why this
should be a concern:

“Those species often intermix with cormorants. The misidentification of a
bird species that appears similar to a cormorant can occur especially when
those species mix with cormorants in flight and lowlight conditions.” (p.46)

The only safeguard FWS identifies is that states and tribes with permits
would be required to report any other species of bird taken incidentally due
to double-crested cormorant management activities under this permit, along
with the numbers of birds of each species taken.

It is unclear how often misidentifications will ne noticed, especially if
carcasses are promptly destroyed. Moreover, states and tribes have no
incentive to report mistakes, especially if doing s could result in
suspension or loss of their permit.

Nonetheless, without evidence or analysis, FWS dismisses this concern in the
DEIS, writing:

“The Service anticipates the unintentional take of nontarget species to
occur infrequently and involve very few individuals of a particular species;
therefore, the Service does not anticipate cumulative adverse effects to
occur from unintentional take of nontarget species under any of the
alternatives.”(p.75)

12. The Illogic of Depredation Trigger

The permits FWS proposes would authorize killing DCCOs only when cormorants
are committing or are about to commit depredations. Yet, DCCOs diet consists
almost entirely of fish. Thus, these birds are always either predating on
fish or are about to. In essence, FWS through this proposal and past DOs
wants to extend shoot-on-sight authority to whichever entity it deputizes to
dispatch cormorants.

This indiscriminate approach is poor wildlife management which reflects no
credit on FWS.

13. Inability to Assess Environmental Impacts

Without any knowledge of what permits will be issued for taking what numbers
of cormorants in what locations under what circumstances, it is impossible
to evaluate the environmental impacts of this proposal.