    [Senate Hearing 107-1004]
    [From the U.S. Government Publishing Office]

                                                           S. Hrg. 107-1004

      NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2003: REVIEW OF
                       ENVIRONMENTAL PROTECTION MANDATES

    =======================================================================

                                    HEARING

                                   BEFORE THE

                                  COMMITTEE ON
                          ENVIRONMENT AND PUBLIC WORKS
                              UNITED STATES SENATE

                          ONE HUNDRED SEVENTH CONGRESS

                                 SECOND SESSION

                                       ON

    REVIEW OF SECTIONS 2105, 2016, 2017(a)-(b), 2108 AND 2019 OF S. 2225, A
      BILL TO AUTHORIZE APPROPRIATIONS FOR FISCAL YEAR 2003 FOR MILITARY
     ACTIVITIES OF DEPARTMENT OF DEFENSE, TO PRESCRIBE MILITARY PERSONNEL
                         STRENGTHS FOR FISCAL YEAR 2003

                                   __________

                                  JULY 9, 2002

                                   __________

      Printed for the use of the Committee on Environment and Public Works

                                     ______

                        U.S. GOVERNMENT PRINTING OFFICE
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                   COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                          one hundred seventh congress
                                 second session
                      JAMES M. JEFFORDS, Vermont, Chairman
    MAX BAUCUS, Montana                  BOB SMITH, New Hampshire
    HARRY REID, Nevada                   JOHN W. WARNER, Virginia
    BOB GRAHAM, Florida                  JAMES M. INHOFE, Oklahoma
    JOSEPH I. LIEBERMAN, Connecticut     CHRISTOPHER S. BOND, Missouri
    BARBARA BOXER, California            GEORGE V. VOINOVICH, Ohio
    RON WYDEN, Oregon                    MICHAEL D. CRAPO, Idaho
    THOMAS R. CARPER, Delaware           LINCOLN CHAFEE, Rhode Island
    HILLARY RODHAM CLINTON, New York     ARLEN SPECTER, Pennsylvania
    JON S. CORZINE, New Jersey           PETE V. DOMENICI, New Mexico
                     Ken Connolly, Majority Staff Director
                     Dave Conover, Minority Staff Director

                                      (ii)

                                C O N T E N T S

                                  ----------
                                                                       Page

                                  JULY 9, 2002
                               OPENING STATEMENTS

    Baucus, Hon. Max, U.S. Senator from the State of Montana.........    49
    Boxer, Hon. Barbara, U.S. Senator from the State of California...    51
    Corzine, Hon. Jon S., U.S. Senator from the State of New Jersey..    52
    Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     7
    Jeffords, Hon. James M., U.S. Senator from the State of Vermont..     1
    Lieberman, Hon. Joseph I., U.S. Senator from the State of
      Connecticut....................................................    50
    Smith, Hon. Bob, U.S. Senator from the State of New Hampshire....     3
    Warner, Hon. John W., U.S. Senator from the Commonwealth of
      Virginia.......................................................     5
    Wyden, Hon. Ron, U.S. Senator from the State of Oregon...........    52

                                   WITNESSES

    Clark, Jamie Rappaport, senior vice president for conservation
      programs, National Wildlife Federation.........................    26
        Prepared statement...........................................    76
        Responses to additional questions from Senator Smith.........    93
    Cohen, Bonner, senior fellow, Lexington Institute, Arlington, VA.    28
        Prepared statement...........................................   106
    Fallon, Adm. William, Vice Chief of Naval Operations, U.S.
      Department of the Navy.........................................    10
        Prepared statement...........................................    53
        Responses to additional questions from:
            Senator Smith............................................    56
            Senator Warner...........................................    58
    Foglesong, Gen. Robert H., Vice Chief of Staff, U.S. Air Force...    10
        Prepared statement...........................................    73
        Responses to additional questions from Senator Smith.........    76
    Henkin, David, staff attorney, EarthJustice, Honolulu, HI........    29
        Prepared statement...........................................   108
        Responses to additional questions from Senator Smith.........   127
    Hurd, William, Solicitor General, Office of the Attorney General,
      Richmond, VA...................................................    31
        Responses to additional questions from Senator Smith.........   207
    Keane, Gen. John M., Vice Chief of Staff, U.S. Army..............    10
        Prepared statement...........................................    63
        Responses to additional questions from Senator Smith.........    67
    Miller, Dan, First Assistant Attorney General, Natural Resources
      and Environment Section, Colorado Department of Law, Denver, CO    32
        Prepared statement...........................................   128
        Responses to additional questions from Senator Smith.........   138
    Phillippe, Stanley, Division Chief, Office of Military
      Facilities, Department of Toxic Substances Control, Region 3,
      on behalf of the Association of State and Territorial Solid
      Waste Management Officials (ASTSWMO)...........................    34
        Prepared statement...........................................   157
    Williams, Gen. Michael J., Assistant Commandant of the Marine
      Corps..........................................................    10
        Prepared statement...........................................    67
        Responses to additional questions from Senator Smith.........    73

                              ADDITIONAL MATERIAL

    Articles:
        A Fuel of Cold War Defenses Now Ignites Health Controversy,
          Perchlorate Runoff Makes Way to Water Supply of Millions;
          Pentagon Clashes With EPA.................................151-156
        Group Calling for Cleanup of Perchlorate in Aberdeen.........   149
        Md. on Battle Line Over Water Pollutant......................   146
    Charts:
        Camp Pendleton Cost with Restrictions........................    69
        Encroachment Impacts--Training Degradation at MCB Camp
          Pendleton..................................................    71
        Red Beach Restrictions.......................................    69
    Fact Sheets:
        Backgrounder on the Readiness and Range Preservation
          Initiative's Proposed Exemptions from the Clean Air Act....    89
        Conserving Imperiled Wildlife at Military Bases: DOD has not
          Identified any Problems Justifying an ESA Exemption........    83
        DOD Fiscal Year 2002 Authorization, Foothill Tollroad Rider..    87
        DOD has a Long History of Working Successfully with the ESA..    85
        National Wildlife Federation, Oppose any Amendments to S.
          2225 that Would Exempt DOD from the Endangered Species Act
          or Other Environmental Laws................................    82
        The Kolbe Amendment..........................................    88
        Title IXV-UTTR--A Backdoor Attack on Utah Wilderness in
          Defense Authorization Act H.R. 4546........................    86
    Letters from:
        Association of State Territorial Solid Waste Management
          Officials (ASTSWMO), Washington, DC........................   100
        Department of Defense, Richard B. Myers......................    12
        National Association of Attorneys General, Washington, DC....    98
        State and Territorial Air Pollution Program Administrators/
          Association of Local Air Pollution Control Officials.......    91
        State of Colorado Department of Law Office of the Attorney
          General, Denver, CO........................................    98
        The Environmental Council of the States......................    96
    Policy Position, National Governors Association..................   103
    Reports:
        Fish and Wildlife Services's Findings Regard Adequacy of
          INRMPs in Hawaii..........................................115-126
        GAO, Military Training, DOD Lacks a Comprehensive Plan to
          Mange Encroachment on Training Range, June 2002...........159-206
    Statement, National Conference of State Legislatures.............   101

      NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2003: REVIEW OF
                       ENVIRONMENTAL PROTECTION MANDATES

                                  ----------

                             TUESDAY, JULY 9, 2002

                                           U.S. Senate,
                     Committee on Environment and Public Works,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 2:30 p.m. in room
    406, Senate Dirksen Building, Hon. James M. Jeffords (chairman
    of the committee) presiding.
        Present: Senators Jeffords, Warner, Smith, and Inhofe.

    OPENING STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM
                          THE STATE OF VERMONT

        Senator Jeffords. The committee will come to order.
        I welcome our witnesses today and note that we have several
    who have traveled great distances to attend this hearing. On
    our first panel, we will hear testimony from Admiral William
    Fallon, who is Vice Chief of Naval Operations. Welcome,
    Admiral. On our second panel, we will hear from Ms. Jamie
    Clark, from the National Wildlife Federation, former director
    of the Fish and Wildlife Service in the Clinton administration.
    I note that in Ms. Clark's written testimony that she has
    extensive experience with defense matters, including a position
    as the fish and wildlife administrator for the Department of
    the Army.
        We will hear from several State witnesses, Mr. Dan Miller,
    First Assistant Attorney General from the State of Colorado;
    who is submitting his written testimony on behalf of Colorado
    and several other States, including attorneys general of
    Arizona, California, the Commonwealth of Massachusetts, Nevada,
    New York, Oregon, Utah, Idaho and Washington.
        Mr. Stanley Phillippe, from the State of California, will
    testify for the Association of State and Territorial Solid
    Waste Management Officials and Mr. William Hurd, the Solicitor
    General from the Commonwealth of Virginia. We will hear from
    Mr. Bonner Cohen, a senior fellow from Lexington Institute. I
    am pleased to welcome Mr. David Henkin, who will testify for
    EarthJustice. Mr. Henkin has flown here on short notice from
    Hawaii. His efforts certainly tell us of the level of interest,
    or perhaps I should say concern, with the proposals.
        The proposals to which I refer were included in the
    Administration's Defense Authorization bill this year. In
    effect, these proposals, which are contained in Title XII of
    that bill, amend six environmental statutes. Five of these
    statutes are within the jurisdiction of this committee.
        I am not aware of any precedent for Congress acting in such
    a broad, sweeping manner to substantially alter existing
    environmental law through freestanding legislation. Moreover,
    these proposals were never submitted to the committee, but were
    proposed for inclusion in a bill that would not have been
    considered by this committee.
        Through the wisdom of the Armed Services Committee, I would
    particularly like to thank Chairman Levin, these proposals were
    not included in the DOD authorization bill, either in committee
    or in the final bill passed by the Senate. I understand,
    however, that there may be plans to include these provisions
    within the upcoming conference of the DOD authorization bill. I
    would be sorely disappointed and I would oppose such an effort.
        I also would like to note that Senator Lieberman, who is a
    member of the Armed Services Committee, may not be able to
    attend the hearing today. Nevertheless, I am authorized to say
    that the Senator opposes these proposals on such procedural and
    substantive grounds, and that he intends to oppose any efforts
    to advance the proposals in conference. Already I have received
    a large volume of letters expressing concern with the scope and
    eventual effects of these proposals should they become law.
        Even without the benefit of testimony we will hear today, I
    am already aware that these proposals as drafted present
    concerns, particularly for the States, and also for citizens
    living near Federal training facilities. These proposals are
    complex and should be carefully examined by experts in both
    Federal and State law. Moreover, since many environmental laws
    contain provisions that favor Federal facilities by allowing
    for exemption, when the President declares an exemption to be
    in the national interest, we must carefully examine the need
    for these proposals.
        I am not aware of many instances, if any, where the defense
    agencies that sought the waivers available to them under
    current law. Instead, the Agencies now seek permanent waivers
    of the laws that apply to their facilities. Congress intended
    the environmental laws to apply to the Federal facility. If any
    other entity were asking for a permanent exemption from
    environmental law, we would afford no less scrutiny to their
    proposals.
        So I would like to make clear that by conducting this
    hearing today, I do not intend to clear the way for these
    proposals to be added to the DOD bill in conference. I agreed
    to hold a hearing on these proposals when the Ranking Member
    filed them as amendments to our water infrastructure bill
    earlier this year. Frankly, I believe that amendment would have
    been defeated at that time. But rather than to put it to a
    vote, I agreed instead to conduct a hearing, consistent with my
    desire to proceed in a regular order on matters within this
    committee's jurisdiction.
        It is my strong belief that if these proposals move through
    this Congress or any future Congress, they should be backed by
    a convincing demonstration of need and should be scrutinized,
    drafted and considered by the committee. The threshold for a
    demonstration of need will be quite high.
        Finally, there are two provisions amending the Endangered
    Species Act and Migratory Bird Treaty Act that are currently in
    the House version of the DOD authorization bill. I have
    received numerous letters of concern about these provisions,
    and I am aware that no committee of jurisdiction over these
    statutes has examined these proposals to evaluate these
    concerns.
        With so little information to back them, it is unfortunate
    that these provisions appear in the House bill. As such, I am
    opposed to their inclusion in the final DOD authorization bill.
    I look forward to hearing the testimony here today. I would
    note that some of our witnesses may have chosen to speak to the
    provisions contained in the Administration's proposal to amend
    the Marine Mammal Protection Acts. This is a statute not in our
    jurisdiction. This subject was not within the scope of the
    bipartisan official notice for today's hearing. So I will ask
    the witnesses to confine their remarks to these areas of the
    proposal that are the subject of the hearing here today.
        With that, I turn to my good friend from New Hampshire.

      OPENING STATEMENT OF HON. BOB SMITH, U.S. SENATOR FROM THE
                         STATE OF NEW HAMPSHIRE

        Senator Smith. Thank you, Mr. Chairman.
        I thank all the witnesses for being here today. I believe
    it's the first time that all four of the services have been
    represented at the joint chiefs level committee hearing,
    outside the Armed Services Committee, but I might be wrong on
    that. But we're certainly honored to hear your testimony today.
        Let me just clarify for my own perspective here, this is
    not, at least in my view, Mr. Chairman, a hearing on any bill
    or any proposal or any initiative at all. It's an opportunity
    to hear both sides of a very delicate issue. It's a chance to
    look at the conflicts and try to work them out. I am not a
    sponsor of any proposal or any initiative, any bill whatsoever
    to draw any conclusions.
        But sometimes there are obstacles to training, which I
    think we as a Congress have to address, whether right or wrong.
    We have to make the decision as to whether there is some reason
    why there is some obstacle out there that keeps us from
    training. We saw one that wasn't really an environmental
    obstacle, it was a concern at Vieques, where there were some
    concerns expressed about human beings not animals. So these
    things do come up.
        My purpose in being here is to try to address these issues
    in a way so we can hear from those folks who are trying to
    defend our country, to see where there may be problems we can
    work out. I have been on numerous military installations in my
    tenure in the Congress, and every time I've been there I've
    seen great efforts taken to try to be very sensitive to the
    environment and to the wildlife and habitat that are on those
    military installations. Indeed, spent a few years at sea during
    the Vietnam War and also saw even then attempts to avoid
    confrontation with sea mammals.
        So it's up to us, really, to appropriately balance those
    goals for defense and environmental protection. I think frankly
    the military has done that. But I think there are times when
    these things do come up in conflict. It's important to note
    also that during the last, I will just take one issue, Mr.
    Chairman, with you. During the last 16 months, service
    witnesses, military, have appeared before Congress to speak to
    encroachment issues at 5 different hearings, the Subcommittee
    on Readiness and Management of the Senate Armed Services
    Committee, on March 20, 2001, the House Committee on Government
    Reform on May 9, 2001, May 16, 2002 in the Subcommittee on
    Military Readiness in the House Armed Services Committee, May
    22, 2001 and March 8, 2002. So there have been hearings and it
    has been out there. It's true, we have not dealt with it at
    all.
        I will be very brief, but I think just to mention a couple
    of specifics. The Migratory Bird Treaty Act. In March of this
    year, the District of Columbia Circuit Court held that military
    training should be halted if it could result in the incidental
    death or injury of a single migratory bird, not necessary an
    endangered species. So it could be a seagull, a duck or any
    other species that may not be an endangered species. While this
    decision directly affects training exercises on an island in
    the South Pacific, the decision could be used to halt training
    at every military base in our Nation.
        I think we just need to look at these issues and see
    whether the military is responding properly or not. It's my
    understanding the Migratory Bird Treat Act was intended to
    apply to hunting of migratory birds, not to unintended or
    incidental harm. Intentional damage is one thing, unintentional
    is another. The Pentagon has asked the Congress to restore the
    interpretation of that Migratory Bird Treaty, so that they
    understand and have clarification as to what is expected of
    them.
        I think it's reasonable, Mr. Chairman, to hear from the
    military on this and find out where there are confrontations or
    where there could be confrontations or where there is conflict,
    and we'll try to address it. Thank you.
        [The prepared statement of Senator Smith follows:]

          Statement of Hon. Bob Smith, U.S. Senator from the State of
                                 New Hampshire

        Thank you, Mr. Chairman, for working with me and honoring the
    request of this side for this very important hearing. I want to welcome
    some of our most senior military leaders to today's hearing. Welcome to
    Admiral Fallon, General Keane, General Foglesong and General Williams.
    I understand that today is the first time all four services have been
    represented at the Joint Vice Chiefs of Staff level in any hearing
    outside the Armed Services Committee--we are honored to have you here
    to testify. The purpose of this hearing is to consider DoD's Readiness
    and Range Preservation Initiative. Mr. Chairman, we are at war--and
    thus far we have been blessed to have so few casualties. A primary
    reason for that is the tremendous training that our soldiers get before
    going into battle. Training saves lives. Unfortunately, there are
    obstacles to this training that we must address. The Readiness and
    Range Preservation Initiative balances two of our country's priorities:
    national defense and protecting the environment. It is up to us in
    Congress to clarify how to appropriately balance these goals of
    national defense and environmental protection.
        It is important to note that this legislative proposal does not
    contain exemptions or sweeping rollbacks of environmental law. The
    proposal instead keeps DoD subject to environmental laws and tries to
    clarify how DoD can achieve its day-to-day readiness mission in balance
    with environmental stewardship.
        Let me talk a little about the specifics of the proposal. First,
    the Migratory Bird Treaty Act. In March of this year, a D.C. Circuit
    court held that military training should be halted if it could result
    in the incidental death or injury of a single migratory bird. There are
    numerous migratory birds. While this decision directly affects live
    fire training exercises on an island in the South Pacific, this
    decision could be used to halt training at every military base in our
    Nation. That cannot occur. The Pentagon is asking to restore the
    interpretation of the Migratory Bird Treaty Act that has existed for 83
    years prior to the recent court ruling. The Migratory Bird Treaty Act
    applies to hunting of migratory birds. The Migratory Bird Treaty Act
    was never intended to apply to unintended, incidental harm to migratory
    birds.
        Our military is also requesting clarification that there is no need
    to designate critical habitat under the Endangered Species Act at
    military installations which have an Integrated Natural Resources
    Management Plan. These plans are required by another environmental law,
    the Sikes Act, which only applies to the military. The Sikes Act
    requires the military to holistically address conservation of a
    military base's natural resources. This requested clarification is
    supported by the U.S. Fish and Wildlife Service, and confirms existing
    policy of the last two Administrations.
        DoD is also requesting clarification that munitions fired on
    operational ranges are not solid waste or releases requiring cleanup
    under the Resource Conservation and Recovery Act as well as the
    Superfund law. Most of what DoD is requesting simply codifies an
    Environmental Protection Agency regulation called the Military
    Munitions Rule. Some litigants are claiming that after a round is fired
    on an operational range, any material that is left on the range should
    be immediately subject to clean up under these laws. There is no way to
    clean up the range without halting training activities. What makes
    sense is to apply these remediation laws when the range is no longer
    operational. For those unusual circumstances when an actual
    endangerment exists on an operational range or there are significant
    offsite environmental consequences, then existing authorities under
    Superfund and the Safe Drinking Water Act can be used.
        The military is also requesting clarification on the ``general
    conformity'' requirement under the Clean Air Act, which is only
    applicable to Federal agencies. They are requesting a 3-year compliance
    window to ensure that proposed military readiness activities conform to
    the applicable State Implementation Plan. This flexibility will
    facilitate new Base Realignments and Closings in 2005, which will
    substantially reduce DoD's aggregate air emissions.
        Finally, the DoD is requesting clarification on the vague
    definition of harassment under the Marine Mammal Protection Act, which
    currently includes imprecise terms such as annoyance or the potential
    to disturb. This clarification is consistent with the recommendation of
    the National Research Council, and was developed by the Departments of
    Commerce, Interior, and Defense under the last two Administrations.
        Mr. Chairman, these are all reasonable and responsible legislative
    proposals that recognize both the need to properly train soldiers and
    the responsibility to be good stewards of the environment. Thank you
    again for holding this hearing today.

        Senator Jeffords. Thank you, and we welcome the witnesses
    again.
        Senator Warner. May I say a few words?
        Senator Jeffords. Certainly, Senator Warner. Please
    proceed.

    OPENING STATEMENT OF HON. JOHN W. WARNER, U.S. SENATOR FROM THE
                        COMMONWEALTH OF VIRGINIA

        Senator Warner. I joined Senator Smith and Senator Inhofe
    in requesting the chair for this hearing. Because I have
    certain responsibilities as the Ranking Member of the Armed
    Services Committee, particularly with regard to the forthcoming
    conference, where we have in the House bill certain provisions
    which will be addressed in that conference. I felt it important
    that we have the record of this committee to use as a guide in
    conference. We will somehow, Mr. Chairman, reconcile with
    Senator Levin and yourself a means by which to address these
    issues in the conference, so that it does not appear or set a
    precedent that we're overriding the responsibility of this
    committee, a committee on which I have been proud to serve for
    many, many years.
        So having said that, I want to comment a little bit, take a
    word from the Ranking Member's opening statement, balance.
    That's what we have to achieve. The men and women of the Armed
    Forces are good stewards of our environment. I think per capita
    there are probably more outdoorsmen in the organization of our
    U.S. military than any other organization of the Federal
    Government. They have respected it all these many year.
        Now we, because of the encroachment of the buildings around
    our bases, which were once located in remote areas but now are
    surrounded often by cities and towns, we have to use certain
    ranges, we're restricted, we just can't pick up and move
    another distance and find another range. We've got to do it in
    a manner that's consistent with the framework of environmental
    laws.
        Mr. Chairman and members of this committee, one thing, if
    we stop to think of why Congress exists, it certainly exists to
    train and equip and protect those who proudly wear the uniform
    of this country, those who are called on at any hour of the day
    to go beyond our shores and defend the freedom of this Nation.
    Indeed now, we're about to witness a new command here in the
    United States, CINCNORTH, that will marshal certain military
    assets to protect us here at home. Training is indispensable.
        Now, I would hope as we focus on these issues that we do no
    violation to the body of environmental laws that has taken
    generations to buildup and which are so important for the
    present and future of this country. But we have to recognize
    that where training of the military and national security
    interests are existing, we have to determine how we can make
    such modifications to those environmental laws that will enable
    the training to go forward but not set a precedent that those
    exceptions can be applied in other areas of our life here in
    this country, whatever it may be. In other words, we have to
    draw these laws that we may make, and hopefully will make, to
    permit the training to go forward in such a way that it does
    not establish a precedent for widespread abuse or change in
    this general body of environmental law.
        So I thank the chair and I thank the Ranking Member for
    arranging this hearing. As I understand, Mr. Chairman, I
    followed your opening comments to the witnesses. Once again,
    with regard to the Solicitor General's Office of Virginia, what
    was your ruling on that?
        Senator Jeffords. That we would hear his testimony.
        Senator Warner. I thank the chair, because clearly we have
    an important rule in this committee with regard to prior
    submission of testimony that should be followed. But I view it
    as a personal courtesy to myself and the Governor that the
    exception would be made.
        Senator Jeffords. I am pleased to do so.
        Let me start off by saying as a retired Navy Captain, and a
    gunfire support gunnery officer on a destroyer, I'm impressed
    by having this opportunity to hear the testimony of such a
    distinguished panel of general officers, which I never would
    have dreamed of in my earlier years.
        Senator Inhofe. Mr. Chairman.
        Senator Jeffords. Senator Inhofe, if you desire to make an
    opening statement, now is the time to make it.
        Senator Inhofe. Thank you.
        Senator Warner. Well, we did want to state for the record
    that the chairman served in the Navy, active duty for 3 years
    on destroyers, stayed in the Reserves, obtained the rank of
    Captain, and I see that knowledge and background being brought
    to bear on this issue, the expertise.
        Senator Inhofe. Here I am, the only Army guy with three
    Navy guys.
        [Laughter.]

     OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM
                         THE STATE OF OKLAHOMA

        Senator Inhofe. I didn't mean to interrupt you, Mr.
    Chairman, I just landed and just got up here and am a little
    out of breath. I do have a lengthy statement, which I'll spare
    you, and make that as part of the record.
        I am very much concerned. Of all the services represented
    here today, I have visited ranges and training areas. I have
    personally witnessed the problems that are there. I think the
    first introduction that I had, General Williams, was in Camp
    LeJeune. That was when they were putting the ribbons around the
    suspected habitat of the red-cockaded woodpecker. At that time,
    I'm trying to get it worded properly and apparently I won't be
    able to do it, but the environmental compliances at that time
    were actually exceeded, the cost of that exceeded what we were
    paying for ammunition.
        It's something that is very critical, I think probably the
    majority of us at this table feel that we need to enhance our
    military. We have a lot of areas, modernization, quality of
    life, MILCON, that are really suffering right now, and we need
    to do something about it. It's to the point where you can't do
    it at the expense of one or the other. The bottom line, I
    think, Senator Warner, is it's just going to have to be
    increased at some point if we're going to carry out the
    expectations of the American people.
        As I see the problem, you folks are such good stewards of
    the environment you're creating more of a problem for
    yourselves. I know this is true, I could use Fort Bragg, Camp
    LeJeune, and use the red-cockaded woodpecker example, that
    because of the fact that you have done such a good the breed
    has increased to the point that you're using up more of your
    training area because you've done such a good job. Something
    has to give.
        We have to at this time right now, we're at war, we're
    going to be at war for a long time. We have to put our
    priorities down, put as the No. 1 priority for what we're
    supposed to be doing here in Washington is to defend our
    country. That's what we're in the middle of doing right now. I
    really believe, even Mr. Chairman, if this were something that
    was temporary, to be able to set aside some of these onerous
    regulations, to allow you to properly train our young people
    who are going into battle, so that lives will be saved. I can't
    think of anything that is more important that we're supposed to
    be doing than that.
        So I'm glad we're finally having this hearing. We have
    talked about this for a long period of time. I'm hoping that as
    a result of this hearing, we're going to be able to quantify a
    lot of things we had not been able to quantify before as to
    what the real cost to our training comes to in terms of what
    sacrifices we have to make, what our young people going into
    battle might be lacking as a result of this, so that we can get
    down and let the American people know. I've often said that all
    we really need in this committee is cost-benefit analysis, and
    let the public know what this is costing and what the benefits
    are, and let them help us make a decision. Hopefully this
    committee hearing today will help us to do that.
        Thank you, Mr. Chairman.

        [The prepared statement of Senator Inhofe follows:]

           Statement of Hon. James M. Inhofe, U.S. Senator from the
                               State of Oklahoma

        Good afternoon. Having worked closely with Senators Smith and
    Warner to request via letter this hearing on the Range Readiness and
    Preservation Initiative of the Department of Defense, and after much
    delay, I am glad that we are finally all here today. I am thankful that
    the initial decision of the chairman to deny our request for a hearing
    has been revisited and wisely overturned.
        I am extremely pleased and honored to see the Vice Chiefs of Staff
    of our Armed Forces all here today. I feel that their presence is
    invaluable. I believe the presence of these fine gentlemen most
    definitely signals the importance the Department of Defense places on
    this issue. It is all the more impressive that they have taken the time
    to come here today during a time of war on terrorism. In addition, I
    understand that this hearing represents the first time that the Vice
    Chiefs have ever testified together other than before the Armed
    Services Committees. Thank you all, and good to see you.
        I have a great deal of concern about the issues of range readiness
    and preservation which are before us today. I served as the chairman of
    the Readiness Subcommittee of the Senate Armed Services Committee for 4
    years and currently serve as ranking member of the Readiness
    Subcommittee. Indeed, I served in the Army decades ago, and we just did
    not have the readiness problems then that we face today. These problems
    are caused by an ever-growing maze of environmental procedures and
    regulations in which we are losing the ability to prepare our patriot
    children, our war fighters, for war. Speaking of children, I have 4
    children and 11 grandchildren. I want them to have to have clean air,
    fresh water, and pure soil. I want them to have abundant flora and
    flourishing fauna.
        That brings me to the thesis for this hearing. That is: The God-
    given rights and liberties and free market capitalism that our military
    defend around the world translate directly into cleaner air, fresher
    water, purer soil, abundant flora, and flourishing fauna. The simple
    fact is that freer nations have higher standards of living, and, very
    significantly, that includes attaining higher environmental standards.
    Simply put: Enabling our military HELPS God's green earth.
        With that straightforward truth in mind, let's examine the makeup
    of today's hearing. Opposing our military today are the usual troika of
    (1) Government employee organizations, (2) Lawyers/trial lawyers, and
    (3) Eco-radicals.
        First we have the government employee organizations. These
    bureaucrats are always concerned with the prospect of lost jobs.
    Innovative and improved paperwork processes can certainly achieve a
    better bang (pun intended) for our taxpayer dollars. More efficient
    government can result in smaller government with fewer employees. It is
    no coincidence that government employee groups routinely oppose these
    government innovations and improvements, and indeed support more
    cumbersome and paperwork-intensive regimes focused on more procedural
    hurdles rather than improved results and better performance. They want
    more government, not less; to them it means more government jobs.
        How many times has ASTSWMO, or like groups such as STAPPA/ALAPCO
    testified before Congress, and how many times were they opposing the
    streamlining of procedural paperwork? Just recently this committee
    heard the government employee group STAPPA/ALAPCO testify as to its
    support for the 30+ rulemakings and procedural encumbrances and
    increased paperwork of the Jeffords-Lieberman regulatory air
    restrictions bill which Senator Voinovich so eloquently explained and
    so visually illustrated. Today again we have STAPPA/ALAPCO promoting
    big government in the testimony. These groups of government bureaucrats
    invariably wind up testifying for bigger government and opposing
    smaller government.
        To add insult to injury, not only are the salaries of these
    individual government employees paid with our tax dollars; quite often
    the groups themselves receive separate, additional, appropriated
    dollars to pay for the groups themselves and the activities of the
    groups. As I say, these activities almost invariably amount to lobbying
    for bigger government and more expenditures of our tax dollars with an
    emphasis not on better results but rather on more procedures. We have
    thus created a self-perpetuating, government-bloating apparatus. This
    must stop. We have to cease the big-government funding for lobbyists
    for big-government funding.
        Second we have the lawyers. The self-interested bands of government
    bloaters are invariably joined by the trial lawyers and their front
    groups who see increased opportunities to sue with every single
    procedural hurdle they can create. Trial lawyers too are interested in
    full employment. For example, these lawyers swear blind allegiance to
    the much maligned and tragically flawed CERCLA/Superfund Act. It is no
    coincidence that the CERCLA/Superfund Act is commonly called the
    ``Lawyers' Full Employment Act'' due to the fact that so much money
    goes to lawyers, including government lawyers, and so little actually
    goes to clean our water and soil. With so many twisted and convoluted
    regulatory procedures, and particularly eco-regulatory procedures, we
    have created the world's largest maze complete with an invasive species
    to run through the maze--the trial lawyer.
        Third we have the eco-radical groups. These groups are more
    interested in propagating issues for fund-raising than they are in
    solving problems. Congressman J.D. Hayworth of Arizona illustrates this
    point well. When he asked the Sierra Club for some modest financial
    help to save some particular bald eagles in Arizona, the Sierra Club
    rejected his coordinating efforts claiming a lack of funds, only to
    turn right around and run hundreds of thousands of dollars of TV
    commercials attacking him. The eco-radicals didn't solve a situation;
    instead they prioritized propaganda.
        I'm here to tell you that the troika of these government employee
    groups and trial lawyer groups and eco-radical groups and their big-
    spending, procedure-obsessed, self-preservation instincts are out of
    touch with the vast majority of Americans who want leaner and more
    effective government that focuses on and achieves better results. These
    groups have a common yearning for more Federal regulations, more
    Federal bureaucracy, in other words, more central planning. We have
    seen the failures of central planning in the former Soviet Union, and
    it is not a good idea to replicate central planning in America.
        This is serious business. Our nations's defense is on the line. You
    simply cannot prepare for the defense of our nation in an arcade.
    Within the past week I have heard complaints from real troops lamenting
    the impairment of live-fire training due to the inability to use
    ammunition. I am concerned for this generation of our patriot children
    and for the future generations of our patriot children. You just can't
    give our war-fighting snipers the best training by making them say
    ``Bang Bang'' instead of actually firing the gun. You just can't give
    our war-fighting bombers the best training by making them simply say
    ``Bombs Away'' rather than actually dropping a bomb. This situation is
    actually occurring, and many Americans have not been told of the truth
    of the matter.
        Well, I say Americans deserve the truth and can most definitely
    handle the truth. I see it as my job both as member of this committee,
    as well as former chair and current ranking member of the Readiness
    Subcommittee of our Armed Services Committee, to inform the American
    people.
        Now I have come full circle back to my original point that what is
    good for the defense of our God-given rights and freedoms the globe-
    over is good for the environment that God has created for us.
        Do the Communist nations have the best environments? Definitely
    not. Look at the environmental disasters of the Communists of the
    former Soviet Union created. Do the nations without free markets,
    without respect for human rights, and without enforcement of property
    rights have the best environments? Definitely not.
        When our military defends against the Communists of North Korea we
    are defending the environment. When our military defends against the
    Communists of North Vietnam we are defending the environment. When our
    military defends Kuwait against the dictatorial regime in Iraq, we are
    defending the environment. Do you remember the vast oil fires that
    Saddam Hussein set with malice toward the environment in the oil fields
    of Kuwait?
        The American service men and women defend our environment, both
    here and around the globe. Let's ready our services. I stand firmly
    with our military and look forward to the testimony of the Vice Chiefs.

        Senator Jeffords. Thank you for your statement.
        With this, I welcome General John M. Keane, General Michael
    J. Williams, and General Robert H. Foglesong to the table to
    join Admiral Fallon. Admiral Fallon, your entire written
    statement will be made a part of the record in this hearing.
    Please proceed with your remarks.
        Senator Warner. Mr. Chairman, could I inquire, do the other
    vice chiefs of staff have statements, and could they not be
    admitted to the record likewise, immediately following that of
    Admiral Fallon?
        Senator Jeffords. They will be made a part of the record.
        Senator Warner. I thank the chair.

       STATEMENT OF ADMIRAL WILLIAM FALLON, VICE CHIEF OF NAVAL
       OPERATIONS, U.S. DEPARTMENT OF THE NAVY, ACCOMPANIED BY:
    GENERAL JOHN M. KEANE, VICE CHIEF OF STAFF, U.S. ARMY; GENERAL
    MICHAEL J. WILLIAMS, ASSISTANT COMMANDANT OF THE MARINE CORPS;
      GENERAL ROBERT H. FOGLESONG, VICE CHIEF OF STAFF, U.S. AIR
                                 FORCE

        Admiral Fallon. Mr. Chairman, distinguished members of the
    committee, I'm very, very grateful for the opportunity to be
    here today with my colleagues, the other Vice Chiefs of the
    Services, to address this very important issue of readiness and
    range preservation. In a nutshell, the most critical issue for
    us is that the requirement to train to enable us to achieve
    readiness is increasingly challenged by the interpretation of
    some of the environmental regulations that are on the books
    today.
        We are involved in this global war on terrorism. We feel it
    is absolutely imperative that we train our people to the best
    of our ability, and to provide them with the tools to be
    effective in combat and to preserve their lives when they go
    forward to serve this Nation. To do that, we need to preserve
    ranges and facilities to enable us to train these people.
        Increasingly, we find encroachment of different kinds are
    making this very difficult. The interpretation again of some of
    these legislative endeavors is prohibiting in many cases, and
    severely restricting our training operations around the world.
    We are absolutely committed to both imperatives of readiness
    for our forces and conservation of our environment. Although
    there's a relatively small amount of Federal land that's
    actually involved in military training, for the Navy, about 1
    percent of all Federal lands are used by us for military
    purposes, we're finding that this is a challenge. It's the
    interpretations rather than the acts themselves that are the
    issue.
        If I could give you a couple of examples that impact
    readiness. The first, the designation as critical habitat under
    the Endangered Species Act is a bar to land use for military
    training activities. The trend is to take these areas, and
    identify them as critical habitats for individual species. In
    reality today, as a result of the Sikes Act passed some years
    ago, all of the services use integrated natural resource
    management plans, INRMPs. These plans are required in all areas
    in which we have bases and operations. These acts in fact
    consider the entire environment, not just a single species that
    is typically addressed in critical habitats. But these plans
    exist and are in fact very effective in not only preserving the
    environment but promoting species, as several of you have
    identified already today, the growth and enhancement of these
    species.
        The second example I'd like to bring to your attention is
    this Migratory Bird Treaty Act. It was recently cited by a
    court to issue an injunction against Navy training out in the
    Northern Mariana Islands of Guam and Farallon de Medinilla
    because of the possibility of incidental take of migratory
    birds.
        Mr. Chairman, in deference to your request to not address
    the Marine Mammal Protection Act, I'll forego that and just
    move on to state a fundamental request. That is that we would
    like to attempt to restore balance, as Senator Warner
    mentioned, balance between conservation and environmental
    concerns which are at the highest priority, and also our
    requirement by law to train our people to prepare them for
    combat. We believe that we can do both.
        Mr. Chairman, I have a letter here sent to Mr. Levin by
    General Myers, the chairman of the Joint Chiefs, I believe you
    may have it, but I'd like to have this entered into the record.
    This is a letter of support for this readiness and range
    preservation initiative that he asked me to bring over.
        Senator Jeffords. It will be accepted and made part of the
    record. Thank you.
        [The letter follows:]

        Admiral Fallon. Thank you very much, Senator.
        In summary, sir, I would like to thank you and to state our
    appreciation for allowing us to be here today and for your
    consideration of this initiative. We stand ready to respond to
    your questions, and we believe that a balance between the issue
    of readiness and conservation is clearly in the best interests
    of all Americans and very achievable. Thank you very much,
    Senator.
        Senator Jeffords. Thank you.
        We will now proceed with some questions. Admiral Fallon,
    you noted in your testimony that training and testing on ranges
    is increasingly constrained, and that ``encroachment has
    reduced the number of days available for training, caused
    temporary or permanent loss of range access, decreased
    scheduling flexibility and driven up costs.'' However, in a
    study released just this month, the GAO made four findings
    undermining these claims. I'd like you to respond.
        First, DOD has not completed an inventory of its own
    training facilities. According to the GAO, commanders sometimes
    find out about other training facilities by chance. Second, GAO
    found that the Department does not know what its own training
    requirements are. GAO found that military service has not
    ``comprehensively reviewed available range resources to
    determine whether assets are adequate to meet need.''
        Third, the GAO concluded that the Pentagon has no data
    showing that the encroachment has increased costs, no
    installation GAO visited could provide data on costs incurred
    as a result of encroachment. In fact, the studies showed that
    the costs for environmental compliance had declined. Finally,
    and I believe most importantly, GAO reported that the services
    demonstrated no significant reduction in readiness as a result
    of the encroachment.
        How can you justify your claim that these exemptions to
    environmental laws are warranted when there has been no
    evidence, not even a study, on what the problem is?
        Admiral Fallon. Mr. Chairman, if I could touch on your last
    comment about exemptions. We're not asking for exemptions.
    We're asking for a clarification of definitions, in our case,
    very narrow applications of particular words, so that the
    individual courts don't feel a requirement to make an
    interpretation on each particular issue, that they can have
    some guidance and help in this area.
        If I could give an anecdote. This recent case in which the
    island, Farallon de Medinilla, north of Guam, where training
    was prohibited, the presiding judge felt that his reading and
    understanding of the law left him little room but to issue this
    injunction. But he urged the Navy to seek legislative relief to
    clarify this particular issue.
        But back to your initial statement, I have not seen this
    GAO report and can't take issue with every point. I can only
    tell you that from my own experience in the last couple of
    years, my previous assignment, I was down at the Second Fleet
    in Norfolk, and as such charged with the training and
    preparation of our forces, sailors and marines, for their
    overseas deployments in the Atlantic Coast. I can tell you that
    the impact, the fallout of the loss of Vieques for live
    ordnance training caused us to do a very, very comprehensive
    search of every available training area. I and my staff
    personally looked at every single facility from the Mexican
    border all the way to Maine and beyond in an attempt to find
    appropriate places to do our training.
        So I'm not sure where the statement is coming from that we
    don't have an idea what's out there. We certainly did a
    comprehensive search for places.
        The impact of not having this training available, I can
    tell you for certain, has had a great financial impact and a
    real impact in terms of time and that's certainly money to us,
    and an impact to the taxpayer because we were forced to send
    the fleet to other areas well beyond the traditional training
    places in an attempt to do some kind of workaround makeup
    training to come to grips with the fact that we couldn't use
    those territories.
        So I haven't seen it, and I welcome the opportunity to take
    a look at this report.
        Senator Jeffords. We'll make sure you get a copy of the
    report. You should have that.
        General Keane. Could I add something to that, Mr. Chairman?
        Senator Jeffords. Yes, General.
        General Keane. First of all, the Army knows where its
    ranges are, and we also know what our training requirements
    are. I can make that statement unequivocally to you. So I do
    take issue with the GAO report. I haven't seen it myself
    either.
        It is true that we have not documented the readiness
    degradation that's taken place as a result of environmental
    impact. But we all know it's there. I commanded Fort Bragg,
    which is the home of our special forces and our paratrooper
    forces. Every month, I had to provide a readiness report to the
    U.S. Army leadership. In that, I mentioned the impact of the
    endangered species that we were managing at Fort Bragg.
        Even common sense would tell you, the restrictions that
    were imposed on us at Fort Bragg, and by the way, that is one
    of 12 installations where we're managing 14 critical habitats.
    Let me just read you some of the restrictions, what I mean by
    common sense will tell you the impact it's having on us.
        Around every cavity tree, which are plentiful in number and
    cover the vast majority of the 130,000 acres that we have, we
    are not allowed, we have a 200-foot buffer around each tree.
    There is no bivouacking or occupation for more than 2 hours,
    there is no use of camouflage, there is no weapons firing other
    than 762 and 50 caliber blank ammunition, there is no use of
    generators, no use of riot agents, no use of smoke grenades, no
    digging. That's tough on an Army, no digging. No vehicles
    closer than 50 feet.
        The impact of that is profound. When you're out there
    facing a soldier day in and day out and you're looking at the
    frustration that the leaders have, because they're doing things
    in areas where they know they shouldn't be training, because
    it's unrealistic for them to be there, or they're at a time of
    day where they know they probably would not be doing this kind
    of activity, because they're trying to keep the noise down and
    protect the cavities and so on. We have great difficulties
    facing those soldiers and dealing with the reality of that
    impact on them.
        I think what we're saying is, we have been good stewards of
    the environment. We were downright polluters at one time. I
    won't hide that from you. As the consciousness of America was
    aroused in terms of protecting our natural resources, so was
    the consciousness of the U.S. Armed Forces. Most of us, while
    we are in this position in the Pentagon, we've spent the last
    10 or 15 years out there dealing with this issue ourselves,
    protecting our natural resources and the environment ourselves.
    We have seen the ever-increasing tension, and we have this
    collision of two national priorities. One is to protect our
    natural resources and the other one is the national defense.
    They are colliding, in our professional military judgment. It
    is out of balance and out of whack.
        To give you a couple more examples, the U.S. Fish and
    Wildlife Service is about to declare 145 plant species in
    Hawaii as endangered species and will have to declare a
    critical habitat. That will bring our Hawaii training program
    to its knees. It's already suffering, we have a $25 million
    range there that's never open, and for the last 3 years, the
    Makua range has been closed. We just recently opened it because
    of the war on terrorism.
        We have these impacts on us. We are very concerned about
    what is taking place with the expansion of environmental laws
    as they pertain to unexploded ordnance. There is a lawsuit
    pending in Alaska, and it revolves around a section of land
    referred to as Eagle Flats, which in our vernacular is an
    operating impact area where we fire artillery munitions into
    it. The lawsuit entails declaring the unexploded munitions and
    the other constituent munitions, the residue from munitions
    that are exploded, as hazardous and solid waste. If that is a
    fact, if that becomes a reality, it would render that range
    inoperable for us, as it would put all other 400 operating
    ranges that the U.S. Army has, as well as the other services,
    in jeopardy.
        So we're here not just because of what is happening now and
    the challenges of the past, we're here looking at the future
    and telling the committee that there are serious challenges out
    there. What we're trying to avoid is a calamity. We don't want
    to send a single soldier, airman or marine into combat not
    properly trained, and to deal with the reality of what combat
    is all about.
        I talked to a young soldier who fought in the Battle of
    Anaconda. He hailed from the 10th Mountain Division, he was
    wounded, in Walter Reed. The kind of fighting that Mike
    Williams' troops do and the Army does is fundamentally about a
    test of wills and skill. This soldier was with a force of 60
    Americans outnumbered by 350 Al-Qaeda. They fought for 12
    hours. We got the best of them, we killed 60 of these folks. We
    took no fatalities, we had 20 something wounded. I said, ``What
    do you think produced the difference?'' He said, ``Sir, they
    were as tough as we are, they gave no quarter, they didn't back
    up.'' He said, ``Fundamentally what the difference was, was our
    skill. We shot better than they did, and we maneuvered and
    fired better than they did.''
        That is the essence of our training, and it produces those
    kinds of results. That's what we're so concerned about,
    Senator, is that we see this train wreck coming, and we're
    trying to avoid it. It's not just the problems we have today,
    which are formidable. But it's the problem as we see in the
    future.
        I think what we're asking the Congress is, is this really
    what you had intended when these laws were passed. I think we
    need clarification of that, because we believe it's out of
    balance. Thank you.
        Senator Jeffords. That's why we're here today.
        General Williams, do you have a statement or comments?
        General Williams. I have a written statement that we have
    admitted to the record. I would like to add to General Keane's
    eloquent remarks, we in the Marine Corps wanted to try to
    quantify the impact of environmental constraints on readiness.
    We took a unit in what is our trademark, the amphibious
    assault, from ship to shore, and then movement beyond the
    beach. We listed all the mission essential tasks that that unit
    is supposed to be able to perform in order to be fully trained.
    We took out from that all the tasks that require firing
    weapons, because we knew we'd get safety and environmental
    concerns mixed up. So we just looked at non-firing tasks.
        About 68 to 70 percent of those tasks, we can perform at
    Camp Pendleton. The other 30 percent of those tasks need to be
    done elsewhere. We do that, we take our troops to Marine Corps
    Base Twenty-Nine Palms, where they have access to ranges and
    areas where they can do the remainder of their training. But
    the fact is that the continuity of training is broken. We
    assault across the beach and then we stop and we go around an
    area, a vernal pool or other designated area, and we regroup,
    we train some more, we stop. So the rhythm of training is
    constantly disrupted.
        I believe that the best gift we could give our young
    Marines is to have them trained hard and trained often, to the
    highest standards we can push. We are seeing this balance slip
    away and we too are concerned about the future. I don't want my
    successor's successor to be back here in 5 years explaining why
    we weren't as trained and as ready as we could be.
        Senator Jeffords. General Foglesong.
        General Foglesong. Thank you, sir.
        This is a hard thing, as everybody has discussed. I will
    tell you, we have a ranch in Montana and we think it's un-
    American to assault the environment. This is kind of my family
    tradition and the way we think about things.
        On the other hand, I'm also a fighter pilot, and it's un-
    American to send our fighter pilots into a fair fight. The
    thing that's made sure we never had to send them into a fair
    fight to a large degree has been our opportunity to train. We
    are the best trained Air Force in the world. Fundamental to
    that training has been our ranges. So we appreciate the
    opportunity to come in and talk about that today.
        I want to give you one anecdotal story. While the GAO
    report may be right to a degree, and we have not quantified to
    the best of our ability the impacts of the implications of the
    interpretations of the laws on our ranges, I will tell you, it
    does have an impact. Two years ago, on more than one occasion
    at Davis-Monthan Air Force Base, I'd take a force ship out. If
    I were going with an operational squadron and we were all
    highly qualified, get to the end of the runway and be called
    and told that the pronghorn antelope are on range three, then
    we would stop at the end of the runway and call the other three
    flight members and brief them on the new targets that we would
    be going to.
        For experienced fighter pilots, that works. Often, we take
    inexperienced pilots out, maybe even brand new fighter pilots,
    in training, have to do the same thing at the end of the runway
    and explain to them what the target is going to look like on a
    new range on the fly, so to speak. Those sorties are much less
    effective than they could have been. In some cases, we lose
    those sorties.
        We do that because the environment is important to us, and
    it's not something that we are against. We do that because we
    think it's the right thing to do. So what we're concerned about
    in the Air Force now is really what was alluded to earlier, not
    exemptions to the law, rather clarifications to the law, so
    that we don't restrict ourselves more than we are now,
    especially into a future that we don't fully understand our
    range requirements. Our footprint is likely to get larger,
    rather than smaller, as we, for instance, take on the F-22, we
    will require a larger air space because of it, and because of
    opportunities to go out and drop live munitions will save lives
    in combat.
        So for those reasons, we would ask that you consider the
    intent of the law as originally passed. Again, we're not asking
    for exceptions to the law, exemptions to the law, we just ask
    for clarification so we can go back to what we thought was the
    right stewardship and the right guidelines to follow for the
    environment. Thank you, sir.
        Senator Jeffords. Senator Smith.
        Senator Smith. Thank you very much, Mr. Chairman.
        I'm trying to walk through the statute and try to
    understand the dilemma you face. The term legislative change
    and clarification, are they two different items in your mind or
    do they mean the same thing? For some clarification in the law,
    clarification would be you probably wouldn't change the written
    law but somebody would clarify it for you, and legislative
    change means you're going to write some changes, is that
    correct?
        Admiral Fallon. Yes, sir.
        Senator Smith. Does anybody differ with that?
        Well, there are two terms that have been used here almost
    interchangeably, one, legislative change, and the other
    clarification. I just want to try to understand that. But I
    think we tend to agree, I really didn't want to go too far down
    that track.
        I wanted to use an example, though, and help me, any of you
    who would like to answer this. Let's try RCRA first. This is
    the statute, the term solid waste means any garbage, refuse,
    sludge or any other discarded material from industrial,
    commercial, mining and agricultural operations and through
    community activities, but does not include material in domestic
    sewage or materials in irrigation return flows or industrial
    discharges, which are point sources subject to permits. It goes
    on to say, the President may exempt, the President may exempt,
    any solid waste management facility of any department from
    compliance with such a requirement if he determines it to be in
    the paramount interest of the United States to do so. I'll come
    back to that, I just want to make one more point, give you one
    more statute.
        CERCLA, or Superfund, the term release means any spilling,
    leaking, pumping, pouring, emitting, emptying, discharging,
    injecting, escaping, leaching, dumping or disposing into the
    environment, including the abandonment or discarding of
    barrels, containers and other closed receptacles containing any
    hazardous substance or pollutant or contaminant, but excludes
    any release which may results in exposure to persons solely
    within the workplace, and so forth. Then it says, the President
    may issue such orders regarding response actions at any
    specified site of the Department of Defense as may be necessary
    to protect the national security interest of the United States
    at that site or facility. It goes on to clarify that.
        So I guess the question is, is there a process problem
    here? Is it, OK, the President can do this, by Executive Order
    or some type of decision, and it takes, if you want to fire on
    a range and there's a migratory bird that's there that's maybe
    not endangered, say a seagull or something, and is there a
    process here that would just make it impossible for you--that's
    not a good example, because I want to stick to the Superfund
    and RCRA.
        What happens if there is somebody that raises an issue with
    what you're doing in terms of RCRA or Superfund, and the
    President, at least according to this statute, can say, we
    exempt you, go ahead, continue what you're doing? What happens?
    What's getting in the way here? That's what I'm trying to
    understand, as it pertains to those two statutes.
        General Williams. My understanding of this, sir, and this
    is now a dog watching television, so I'm not sure I'm going to
    get this right----
        [Laughter.]
        General Williams. But the process by which these exemptions
    are requested is long and tedious.
        Senator Smith. How long?
        General Williams. I'm told up to 8 or 9 months. The
    threshold for the exemption itself is very high, the paramount
    interest of the United States. It's very difficult to justify a
    rifle range at Quantico as being in the paramount interest of
    the United States. With over, probably over 1,000 ranges in
    DOD, to expect the President to declare these things, and then
    there's also a reporting requirement to Congress whenever the
    President exercises his power of exemption.
        So to use the exemptions instead of clarification of the
    law in the example that you cite, what we are looking for is
    language that says that hazardous waste on an operating range
    is exempt from cleanup as long as it remains on the operating
    range. The military would still be responsible for cleaning
    ranges that are abandoned or closed, and we would still be
    responsible to clean an operating range if the hazardous waste
    leaked off the range.
        That's in sum. We think in most cases we need additional
    language in the statute to explain precisely the occasional
    taking of migratory birds during military training on an
    operational range does not violate the Migratory Bird Treaty
    Act.
        Senator Smith. So if there is a problem with either RCRA or
    CERCLA here, and in your view, let's just say it directly
    impacts an action that you want to take tomorrow, for whatever
    reason, for training or perhaps even some operation, what
    happens? Do you go directly to the White House with a request?
        General Williams. We just don't do it.
        Senator Smith. You don't do it. So then there's a process
    that unfolds that takes a long, long time which could be
    several months.
        General Williams. Yes, sir.
        Senator Smith. It gets, so basically you're bogged down
    without really getting an answer.
        General Williams. That's really why in the past, sir, none
    of the services have made use of the exemptions. The exemptions
    were designed on purpose, with a very high threshold, and they
    were designed to let the interagency process in various
    Agencies of the Government comment on the exemption.
        Senator Smith. But I'm just trying to understand, I'm not
    trying to harangue you here, if you have that situation, if you
    call the President tomorrow morning or tonight and say, we've
    got to have relief here, can he issue the exemption at that
    point and you go ahead?
        General Williams. Sir, to my knowledge, he could do so, if
    he were convinced it was in the paramount national interest.
    But then there's a process after that that goes, and then he
    would have to report his actions to the Congress.
        Senator Smith. So you have to decide whether it goes to the
    level of asking for Presidential relief or exemption?
        General Williams. Yes, sir. In the past, history shows that
    we have decided that it does not.
        Senator Smith. Probably not in the short term.
        General Williams. Really, the status quo as it existed up
    until several years ago, we've been working with it. We've been
    working with the Endangered Species Act and the other acts. It
    is the ever-increasingly wide interpretations of these acts in
    litigation that's really causing the problem. The EPA and the
    services have an agreement on the range hazardous waste. The
    agreement was as I described it to you.
        But there is now litigation and if the litigants win, that
    agreement will be no longer enforced.
        Senator Smith. My time has probably expired, I just wanted
    clarification. Did you have a comment, Admiral Fallon?
        Admiral Fallon. Yes, sir, this business of exemptions,
    exemptions exist in law for some of these issues, but not for
    all. For example, in the business of endangered species, there
    is an exemption for national security, never been invoked yet
    to the best of our knowledge. There are no exemptions in the
    Migratory Bird Treaty Act nor in the Marine Mammal Protection
    Act, two issues that are constantly in front us. That is not an
    option.
        The issue becomes for us one of interpretation of the
    existing law. For example, this challenge out in the Pacific at
    the training range a couple of months ago, the Migratory Bird
    Treaty Act does not address the issue of a permit for
    incidental takes. That's the lexicon for the inadvertent
    harassment or demise of a creature in this situation. It just
    doesn't address it. So it's up to the courts then to decide
    whether first of all it is applicable, and this is how we get
    into this. Up until recently, there had been no, to the best of
    our knowledge, no ruling in this area at all until the judge
    issued the injunction.
        So there are different issues depending on the particular
    statute. But some of them have no exemption.
        Senator Smith. Thank you, Mr. Chairman.
        Senator Jeffords. Senator Warner.
        Senator Warner. This has been very helpful testimony. I
    think we have gotten into a very important dialog on how best
    to strike the balance that each of you in your statements have
    stated is necessary. I'm just going to say openly here, those
    that are not in favor of perhaps some of the efforts by the
    military, let's look at a solution to it.
        I say that, we need help, I'll speak to myself, I need a
    little help trying to figure this out. In no way are we trying
    to run roughshod over this valued body of environmental law
    which has been compiled by generations and do so just in the
    name of national defense. On the other hand, if you're seeking
    clarifications, if that clarification applies to you, it may
    apply to a much wider range of persons or organizations in such
    a way that there is really a diminution in the effectiveness of
    that particular law.
        So where I'm going to focus my work, and open myself up to
    suggestions from anybody here in the audience or otherwise that
    can help, how can we do it in such a manner as to narrow,
    whether it's the word exemption or waiver or something, so that
    it applies to the needs of our U.S. military, but would not in
    any way provide a basis for others availing themselves of what
    you're seeking to achieve.
        Now, frankly, this is beyond your pay grade. You gentleman
    are all saddled with trying to fight a war right now. These are
    some things the legislative draftsmen and the attorneys and
    many others who work, labor in this field hard, can I think
    figure out how to go about it. So that's what I'm going to try
    and work on, Mr. Chairman, to see what we can do.
        The one question I have, and I'd like to put my questions
    in for the record. Give us some idea of the urgency of this
    matter. Just in generalities. As the chairman has pointed out,
    the chairman of the Armed Services Committee, and I will
    consult with him on this, we do not wish in this conference to
    run roughshod over this body of law and certainly, I'll fight
    hard not to do it. But if we can figure out some kind of a fix
    to enable this situation, maybe for a period of time, Mr.
    Chairman, to allow the training to go on, particularly in this
    period of war time, and then within that period of time we sit
    down and figure out how we can do it on a more permanent basis,
    so as not to run roughshod over the environmental laws, and at
    the same time achieve our goals. So I petition all those who
    might have better ideas than I have at this moment as to how to
    figure it out. That would be my goal.
        Is that consistent with your goals, Admiral Fallon?
        Admiral Fallon. Very much so, Senator.
        Senator Warner. With yours, General Keane?
        General Keane. Yes, sir, very much so.
        Senator Warner. Well, I thank you. I'll return for the next
    panel, Mr. Chairman.
        Senator Jeffords. Thank you. That's an excellent question.
    I want to ask the same one as to what kind of guidance do you
    get, who do you call, what's available to you for what you can
    do under those circumstances? Is there any phone you can lift
    and get somebody on the end that has the authority or the
    ability to answer your questions?
        General Williams. All of us have environmental lawyers on
    our staffs. All of us work as closely as possible with the Fish
    and Wildlife Service, in the case of the Endangered Species
    Act, and the appropriate regulatory agency. For the most part,
    our relations with those Agencies are good relations. The
    compromises that we have worked out over time have been
    reasonable. It was a Fish and Wildlife Service compromise that
    enabled us to continue training at Camp Pendleton, when there
    was a proposal to make over 50,000 acres, which is half the
    base, protected habitat.
        What we can't control is the pace of litigation. When the
    courts rule, we're stuck with the result, obviously, as they
    did at Farallon de Medinilla. So it is critical that we move on
    this quickly, because as we sit here, there are any number of
    lawsuits pending in courts, and the courts are open to
    interpret the law, because in most cases, there is no specific
    mention of what constitutes a legitimate military use of
    military property.
        Senator Warner. If I might follow on, how urgent is this
    matter in terms of our national security and training? Is it a
    month by month? Because realistically, if we don't address it
    now, it's not likely to be addressed until way into next spring
    at the earliest. What detriment is there to your training
    cycle? Of course, General Williams, I commend you, you wake up
    in the morning and there's a court suit out there, and the
    judge is ruling and bang, down goes that clarification or
    whatever you had been operating under for a period of time. You
    can't stop the training, because your people are ready to go
    abroad.
        General Williams. The issue for us I think, for the most
    part, is erosion. If we wait another year, our training base
    will have eroded by some extent and I can't quantify that
    extent. I see what's happened and I see the pace in litigation
    and I am concerned that if we don't talk about this now and
    find a way to stop that erosion and restore some of the
    balance, we're going to be, every year, fighting a steeper
    battle uphill.
        General Keane. Senator, one of the things that has
    increased our sense of urgency is certainly the fact that the
    Nation is at war. There is sort of an open contract in terms of
    how long that war is going to last. And that's got all of us
    very concerned, as we are increasing the training at all our
    installations. We call it surge training in the Army, and our
    soldiers are going through it right now, for preparations for
    future conflict. That also obviously is part of the denominator
    here.
        The Army, just like General Williams was saying, is very
    concerned about pending litigations which could shut down our
    operating ranges, as it pertains to the RCRA and its impact on
    unexploded ordnance, which has us very concerned. We are
    managing the endangered species, and I think we've done an
    incredible job. We are frustrated by it at times, because I
    know that the red-cockaded woodpecker loves paratroopers.
    There's absolutely no doubt about it. Because the only place
    they live is where we're protecting them at Fort Bragg, NC. All
    around us, where there were also critical habitats, that
    habitat has been destroyed by developers. But we are protecting
    them, and we have learned how to do that.
        But as the endangered species increase in numbers and
    plants are increasing in numbers, and there have been, these
    habitats are being assigned to our installation, it's
    exacerbating our problems. It makes managing them that much
    more difficult. So if there is a sense of urgency that's here
    now that hasn't been there 4 or 5 years ago, it's because the
    problem is getting so much larger.
        Senator Warner. We may have to see if there is a short-term
    fix while Congress and the environmental community work on a
    long-term fix.
        General Keane. We would be able to help you, for the
    record, with that as well, if you would like, sir.
        Admiral Fallon. Senator, there is a near-term readiness
    challenge, this problem out at FDM in the Pacific. We are
    under, the appeals court granted a stay on the injunction. This
    is just a temporary reprieve to allow us to train right now.
    But this is a really critical issue of timeliness.
        Our forces that are forward deployed and stationed in the
    western Pacific, in Japan and Okinawa, depend on this range,
    it's the only live ordnance training facility that we have out
    there. It's not as good as their training facilities back in
    the continental United States, but it's the only thing we have.
        When this was taken away, these people, who are going down
    to the North Arabian Sea to enter combat in Afghanistan, had no
    place to train. There was no option until the court of appeals
    stayed. So this is what was a gradually creeping encroachment
    problem and has suddenly become something right in our faces.
    We could use some immediate relief, sir.
        Senator Jeffords. Senator Inhofe.
        Senator Inhofe. Thank you, Mr. Chairman. I think things
    have been covered very well, and I appreciate the
    straightforward answers that you folks have given to these
    questions. One thing for clarification is, Mr. Chairman, you
    read from a report. Is that something fairly recent, and can
    you give me the name of that report?
        Senator Jeffords. Yes, it's the GAO report to Congress,
    June 2002. It's very recent, on military training, and the
    Department of Defense lacks a comprehensive plan to manage
    encroachment on training ranges.
        Senator Inhofe. The reason I ask, I recall when you made
    your opening statement, two things, there was not adequate
    data, they concluded not adequate data that would show that
    there is a direct cost increase to this, No. 1, and No. 2, that
    there is a degradation of training. I think that was in there,
    the way you stated it.
        With that in mind, I do think that needs to be clarified. I
    think you did it, General Keane. I'd like to ask you, each one
    of you, to give an example of the costs that you say, of course
    you say you had it mostly under control, the endangered species
    portion, but there's a cost to that. The ranges that have the
    turtles running around in there, there is a cost to that. There
    are personnel being used.
        I'd like to have each one of you give an example of
    something that would be a cost example in your particular
    branch, and then second, an example of degradation of training.
    Let me give you a hint. I think Admiral Fallon, you'd be the
    one I should ask this for. And as I've spent many, many, not
    just weeks and months now, it's getting into the years, trying
    to get our live range at Vieques back, my concern has been that
    if we allow that to happen and they were using primarily
    environmental reasons for shutting down the live range, that
    had an effect on all the other ranges. You've already stated
    the problems that we're having out there.
        We do know that in southern Sardinia, the range we have
    down there with the Italians is one that we're going to lose,
    or each month that goes by, we have fewer days we can use that
    range. We know that Cape Moratt in northern Scotland is another
    one, in fact, I was there when they said, ``Well, wait a
    minute. If the United States allows their people to protect and
    close the ranges they own from live fire, why should we let
    them be using our range here in northern Scotland?'' It's a
    good question, a difficult question to answer.
        But as far as degradation is concerned, and I think it was
    2 or 3 years ago that while they were doing some work on the
    range in Kuwait, there were five people killed, I believe four
    of those were Americans. In the accident report they
    specifically said one of the contributing reasons was they had
    not had the opportunity to use live training. So there is a
    good example that I would see as a degradation of training.
    Since you are one of the two authors of the Bates-Collin
    report, you're very familiar with what I'm talking about and
    how that affects the others.
        So if each one of you could maybe give an example, a cost
    example and a degradation of training example, or maybe two or
    three, if you would do that, just for the record.
        General Keane. First of all, dealing with costs, and these
    are direct costs, in the U.S. Army, we have 4,000 people whose
    sole purpose it is to work the environment. It's not a part
    time job, it's a full time job. We spend $1.5 billion a year on
    this subject.
        Senator Inhofe. Four thousand?
        General Keane. We have 4,000 people.
        Senator Inhofe. Just the Army?
        General Keane. That's just the Army. And we spend $1.5
    billion doing this on an annual basis.
        Indirect costs that I don't have available to me, at my
    fingertips, that take place at every installation, because
    there are now----
        Senator Inhofe. At that point, General Keane, if you could
    for the record send this to us.
        [The information requested for the record follows:]

        Critical Habitat Designation Impact. Since 1966, at Naval
    Amphibious Base (NAB) Coronado, the Navy has spent approximately
    $675,000/year on conservation and management programs for the Western
    Snowy Plover and the California Least Tern, increasing nesting by
    almost 300 percent. However, Navy's successful stewardship program has
    resulted in the loss of approximately 45 percent of its training area,
    and NAB Coronado has lost over 60 percent of its training beaches to
    encroachment due to critical habitat designation in 1999. The response
    has been to substantially alter training activities or to conduct them
    elsewhere, which reduces realism, disrupts training cycles, reduces
    access to training areas, and increases costs and the already
    considerable time Sailors must spend away from their families before
    leaving for extended deployments.
        On San Clemente Island, CA, the Navy spends approximately $2.6
    million per year to accommodate the Loggerhead Shrike. During certain
    times of the year, the Navy can only use the southern half of the
    island (where the bombardment area is located) 3 days a week to allow
    for research to evaluate the birds. If the shrike population decreases
    the U.S. Fish and Wildlife Service (USFWS) may further restrict
    training or prohibit it altogether.
        Incidental Take Permits. Navy implemented a turtle protection
    program on Vieques that required daily patrols for endangered sea
    turtle nests. The incidental take statement in USFWS's biological
    opinion on Navy training at Vieques allowed the Navy to take only one
    turtle in the course of training. This low number of authorized takes
    forced the Navy to expend more effort and funding on turtle surveys. On
    average, Navy spends several days and $100,000 per battle group
    training exercise cycle conducting turtle surveys. Additionally, the
    low number of authorized incidental takes has forced the Navy to expend
    more time on planning training exercises that utilize the beaches. In
    some instances, exercises have been moved to other parts of the beach
    where there are fewer turtles. At other times, exercises have been
    severely curtailed. For example, amphibious warfare training exercises
    have been moved, scaled back, or dropped only because of their
    potential to take more than one turtle.
        Costs not captured but still an impact. (Currently attempting to
    find way to roll up these costs.) An example is the requirement for F-
    14 squadrons to travel from Naval Air Station (NAS) Oceana in Virginia
    Beach to NAS Key West to complete the Strike Fighter Advanced Readiness
    Program (SFARP) because they are unable to complete this training
    locally due to encroachment restrictions (range, night, noise, etc).
    These extras, which are not currently captured, including additional
    flight hours for the transit to and from Florida, TAD dollars, and
    PERSTEMPO increases. Maintenance costs also increase due to shipment of
    required maintenance equipment and rapid action repair items. These
    costs, flight hours, steaming hours for ships, and Quality of Life
    costs for the personnel unable to conduct readiness activities locally
    are currently not captured.

        General Keane. I'll provide you with that. In terms of
    training degradation, I gave you examples at Fort Bragg,
    there's another one at Fort Hood where we're also protecting
    two endangered species, both of those are birds. It restricts
    training on 66,000 acres, which is over one-third of the total
    acreage at Fort Hood, TX. Again, common sense tells you that
    there are challenges here, because again, there's no digging
    and there's no destruction of the habitat permitted whatsoever.
    During the months of March to August, which is our prime
    training time in terms of weather, we cannot move our vehicles,
    except on roads and established trails. That makes no sense to
    our armor formations, who have to practice in formation so they
    have to bring large numbers of vehicles out that are practicing
    those formations, so we can understand relationships and so on
    in doing that.
        Certainly, simulation has gone a long way in helping us
    practice things to skill repetition and to proficiency without
    having to go to the field. Most of that is in the training of
    leaders. But to train organizations and large groups of
    organizations on the ground, like General Williams' challenge
    has, and the U.S. Army has, you have to get out there and
    practice those skill sets. So there's degradation that takes
    place at Fort Hood, Texas, which is the home of the Army's
    heavy armor corps, and it has two divisions there, the 1st
    Cavalry Division and the 4th Infantry Division and III Corps
    Headquarters. Of course, that's our No. 1 counter-attack corps.
        The degradation takes place in every place in the Army
    where we have endangered species. What we're concerned about,
    as I stated earlier, is the increasing management that's having
    to take place as the endangered species are moving not just
    from animals but also to plants. They are continuing to rise,
    and further exacerbate the problem.
        Senator Inhofe. Good answer. Admiral Fallon?
        Admiral Fallon. Senator, I can give you a couple of
    examples. One, on San Clemente Island, where we spend about
    $2.6 million a year working to help in the loggerhead shrike
    species. If I could, the challenge that we have is that we're
    on a rotational cycle with our forces. Generally about every 6
    months, we send battle groups and amphibious ready groups with
    the Marines forward. We're not able to just defer training for
    3 or 4 months to accommodate a challenge. For example, in San
    Clemente, 8 months of the year, we're only permitted, because
    of the loggerhead shrike, which by the way, through the
    stewardship of the people out there on the island, has
    increased in the last 10 years from a count of 13 up to 180
    today in the wild on that island. So they are certainly good
    stewards of the environment by that measure.
        Four days a week, no live ordnance training. Other
    restrictions in some areas, there are two training ranges
    there, 90 percent of one is not accessible, 50 percent of the
    other one is not accessible. The only times that remain are 3
    days a week. That's a real impact on our ability to train our
    rotational forces there.
        To give you one other example, a different scenario. We
    have a weapons station down near San Diego in Fallbrook. This
    entire area is a critical habitat for the California
    gnatcatcher, another species of bird. So common sense things,
    like cutting fire lanes, are prohibited. This is a weapons
    station, with a danger of brush fire and so forth, in
    California. It's this kind of interpretive relief that we're
    really seeking. It has a real impact.
        Senator Inhofe. Any other comments?
        General Williams. Yes, sir. In answer to your questions,
    the Marine Corps spent last year $117 million on environmental
    compliance issues and environmental compliance.
        Senator Inhofe. These are direct costs?
        General Williams. Yes, sir. We have about 420 full time
    employees who do environmental work.
        As far as the degradation of training issue, I have one,
    this was a report of the commanding general of the unit that
    lost the ability to bomb out at Farallon. He was asked by the
    court to tell them what the impact was on readiness.
        He said, in anticipation of the injunction, we canceled 24
    sorties scheduled to drop 51,000 pounds of ordnance. We then,
    in anticipation of the continuing, we have already canceled
    June and July air to ground training. As a result of the above-
    described lost training opportunities, this squadron's
    readiness has been irreparably harmed. It is right now less
    combat ready than it would be if it had been able to train. The
    longer the injunction remains in effect, the more it will
    degrade. There is no other range in the Pacific theater of this
    caliber. Although attempts will be made to use ranges in
    Australia, Thailand, Okinawa or South Korea, use of these
    ranges will be wholly dependent on the desires of foreign
    nations.
        Senator Inhofe. Thank you.
        General Foglesong. Sir, I'll just refer back to my earlier
    example, on the Barry Goldwater range, we lose annually about 3
    percent of our live drops, just can't recover them, they have
    to come back and bring the ordnance back. So those numbers are
    easy to quantify and I'll give them to you for the record.
        Senator Inhofe. That would be good, I appreciate it. Thank
    you, Mr. Chairman, I know I went over my time.
        But I'd like to ask each one of you if you would have some
    staff put together some specific things like that, it would be
    very helpful to me to able to have that. In other words, both
    on degradation and on cost. Thank you very much, Mr. Chairman.
        Senator Jeffords. Thank you. The panel has done an
    excellent job in making us better aware of the problems you
    face. We deeply appreciate the time and effort that has gone
    into your preparation. We have another panel that was scheduled
    at 2:30, so we will now move on to them. Thank you very much.
        We are pleased to have you all here. We had a little delay,
    but a very interesting and worthwhile one. The first witness is
    Jamie Clark. Please proceed.

     STATEMENT OF JAMIE RAPPAPORT CLARK, SENIOR VICE PRESIDENT FOR
          CONSERVATION PROGRAMS, NATIONAL WILDLIFE FEDERATION

        Ms. Clark. Thank you, Mr. Chairman, and good afternoon to
    you and the other members of the committee.
        My name is Jamie Rappaport Clark, and I am here today to
    testify on behalf of the National Wildlife Federation, the
    Nation's largest conservation education and advocacy
    organization. I thank the committee for the opportunity to
    testify today.
        I currently serve as senior vice president for Conservation
    Programs at NWF. Prior to arriving at the Federation, I served
    for 13 years at the U.S. Fish and Wildlife Service, with the
    last 4 years as Director. Prior to that, I served in a variety
    of management and wildlife biology positions in the Department
    of Defense. I am the daughter of an Army officer, so I have
    lived on or near military bases throughout my entire childhood.
        On numerous occasions during my 10 years with the Service
    and the Defense Department, DOD rolled up its sleeves and
    worked to comply with environmental laws while ensuring
    military preparedness. Today, though, I think we're at a
    crossroads. Will the Defense Department continue to build on
    its long record of wildlife conservation and respect for
    environmental laws, or will it now retreat from this role and
    take on a new role as the unregulated despoiler of our
    environment?
        Unfortunately, at the highest levels of this
    Administration, efforts are underway to give the Defense
    Department an unwarranted free pass from complying with many of
    the Nation's environmental laws. At the center of this effort
    is the Readiness and Range Preservation Initiative, a proposal
    by the Administration to exempt the Defense Department from key
    provisions of six environmental laws: the Endangered Species
    Act (ESA), the Migratory Bird Treaty Act (MBTA), the Marine
    Mammal Protection Act, the Clean Air Act, Resources
    Conservation and Recovery Act, and Superfund. Congress'
    approval of these exemptions constitutes one of the largest
    rollbacks of environmental legislation in our Nation's history.
    These exemptions are part of the pattern of resist, rollback
    and renege on environmental laws that this Administration has
    adopted far too often.
        These attacks on environmental laws must be kept out of the
    bills that emerge from the Defense authorization and
    supplemental appropriations conference committees. We
    recognized that military readiness is vital. However, the
    environmental laws targeted by this Administration already
    contain site specific exemption and permitting procedures that
    enable DOD to achieve its readiness objectives, while taking
    the environment into account.
        As we heard before, according to a recent GAO report, the
    Defense Department has provided no evidence that environmental
    laws are at fault for any of the gaps in the readiness that may
    exist today. Before Congress considers weakening fundamental
    environmental safeguards, DOD should be asked to produce a
    comprehensive study of the real obstacles to achieving
    readiness.
        To justify its proposed exemptions from the ESA, the
    Administration has provided a handful of anecdotes about
    problems at individual installations. I certainly do not
    dismiss the challenges that Defense has faced in balancing
    environmental and readiness objectives at some of its
    installations. However, the best way for Congress to help DOD
    meet these challenges is to encourage them to engage in early
    consultation and to provide the Fish and Wildlife Service and
    other environmental experts with the funding they need to carry
    out their consultation duties in a timely manner.
        By engaging in early consultations at the local level, DOD
    can solve problems before they turn into major headaches. A
    perfect example we heard earlier is how this can be done is at
    Camp LeJeune in North Carolina, which does provide important
    essential habitat for the endangered red-cockaded woodpecker.
    Rather than complaining to Congress about ESA restrictions on
    its base, the Marine Corps worked very closely with the Fish
    and Wildlife Service and crafted a plan that calls for each of
    the birds' colonies to be incorporated into their training
    missions to be marked on the maps as land mines. DOD was
    sufficiently proud of the results that it produced this poster
    that we have to my left, which correctly asserts that the
    Marines, teaming with the Service, are proving that a first
    rate military force can train while protecting endangered
    species.
        As this example shows, the Endangered Species act brings
    DOD and other Federal Agencies to the table to develop
    solutions, and it provides the flexibility needed to make a
    wide range of solutions possible. In contrast, the
    Administration's proposal would tell Defense to simply abandon
    its work at the Service and the public in balancing readiness
    and environmental objectives, and decide unilaterally what
    level of environmental protection to provide. Such an
    abandonment of our military's long and proud tradition of
    collaborative wildlife stewardship would be very unfortunate.
        I'd like to just make a few points about the Migratory Bird
    Treaty Act exemption passed by the House in its defense bill.
    This nationwide exemption would greatly reduce protection of
    migratory birds. And yet, the Defense Department has offered
    nothing more than a single district court ruling to justify it.
    Certainly, congressional review of the challenges implementing
    the MBTA is warranted. But considering the importance of
    migratory birds to the health of our environment and our
    economy, such a review should be thoughtful and searching. Any
    changes to the MBTA should only be made after careful study of
    the new approaches being taken, the problems being encountered
    and the potential policy solutions, and only after
    opportunities for public input and important debate.
        In summary, the National Wildlife Federation urges the
    Senate to reject all attempts to roll back the environmental
    protections under the guise of national security We are clearly
    committed to working closely with the Congress and others to
    ensure that both military readiness and environmental security
    are maintained.
        Thank you again for the opportunity to testify, and I will
    be happy to respond to questions.
        Senator Jeffords. Thank you very much.
        Dr. Cohen.

     STATEMENT OF BONNER COHEN, SENIOR FELLOW, LEXINGTON INSTITUTE

        Mr. Cohen. Thank you very much, Mr. Chairman.
        My name is Bonner Cohen, I'm a senior fellow at the
    Lexington Institute, a non-partisan, non-profit public policy
    organization located in Arlington, VA. I want to thank Chairman
    Jeffords, Ranking Member Smith and other members of the
    distinguished panel for the opportunity to address this very
    important issue today.
        In recent years, environmental laws designed to do such
    things as protect endangered species, safeguard migratory birds
    and other noble endeavors, have been applied largely as a
    result of lawsuits, increasingly to military installations and
    military activities where they are coming increasingly in
    conflict with the training of soldiers for battle. Everyone in
    this room knows that the military has a unique mission, one
    which requires the utmost training of our soldiers for the test
    of battle.
        The Joint Chiefs of Staff came here today because they had
    a problem to solve. Failure to do so in a timely and sensible
    fashion will put young lives needlessly at risk. This need not
    be the case. By making a few carefully selected and very narrow
    clarifications of some of our environmental laws, we can both
    provide for additional environmental progress and prepare our
    soldiers for the rigors of combat.
        I will restrict my comments today to just a couple of
    things. In my written comments, I had mentioned the Marine
    Mammal Protection Act. In deference to the request of the
    chairman, I will forego that here and concentrate instead on
    the Migratory Bird Treaty Act and Endangered Species Act.
        On March 13 of this year, a Federal judge ruled that the
    U.S. Navy, by using its facility at a base known primarily by
    its acronym, FDM, in the west Pacific, by using that it was,
    the term is, incidentally taking birds and to continue
    activities there, its military activities there, by taking
    birds it would have to receive a permit. As a result of that
    action, FDM, a tiny island, one-third of an acre, located 70
    miles north of Taipei, has been closed pending a judge's final
    decision on what will be required of that.
        I think anyone who looks at the purpose of a gunnery range,
    anyone who looks at the purpose of a bombing range knows that
    during the process of these activities, some birds are going to
    be killed. Common sense tells us that. Common sense also tells
    us that pilots preparing for battle need to be trained in such
    a manner with conditions that are as close to combat reality as
    possible.
        I think it is worth noting that when the Migratory Bird
    Treaty Act was enacted in 1918, it was done so for the purpose
    of regulating duck hunting. This was before the days when such
    organizations as Ducks Unlimited did such a splendid job in
    restoring duck habitat. It had nothing to do at the time, and
    had nothing to do for decades, with the problem of military
    readiness.
        The conflict need not be what it is. I think common sense
    tells us that by returning to the legal and regulatory status
    quo, as it has existed for over 80 years, we can provide the
    military with the kind of facility it needs, for which, as the
    gentlemen in the first panel mentioned, there are no
    alternatives in that part of the world, so we can provide for
    the kind of training that our pilots need before they are sent
    into the rigorous combat.
        I will turn very briefly then to the Endangered Species
    Act. The Department of Defense manages some 25 million acres of
    land, and over 425 military installations where some 300
    threatened or endangered species have sanctuary. More often
    than not, it is good environmental stewardship that attracts
    threatened and endangered species to certain areas, a point
    raised earlier by Senator Inhofe.
        Thanks in large part to litigation, to lawsuits which have
    been brought forward, we now are facing the possibility of the
    Endangered Species Act, particularly the critical habitat
    provision of the Endangered Species Act, to be applied to
    military installations. We heard from the first panel the kinds
    of problems that this is already causing in such places as Camp
    Pendleton, CA, Camp LeJeune, NC, and Fort Hood, TX; problems
    which are only likely to go from bad to worse in the years to
    come, as more litigation is brought forward.
        One of the things I think we want to do this afternoon is
    discuss intelligent, sensible solutions to these problems, so
    that we can reconcile the needs of the environment with the
    needs for military readiness. In fact, the Integrated Natural
    Resource Management Plans, already employed and already
    required by the Sikes Act, where the Department of Defense
    works very closely with the Department of Interior and State
    wildlife agencies, have provided remarkable conditions that
    have in fact provided protection for the endangered species,
    whether it's the red-cockaded woodpecker or what have you.
    Indeed, the very effectiveness of the Integrated Natural
    Resources Management Plans is attested to by the presence of so
    many threatened and endangered species on these lands.
        No institution created by humans is going to work
    perfectly. What we're looking for this afternoon are common
    sense solutions. Rather than apply the critical habitat
    designation of the Endangered Species Act to military bases
    where they have created a host of problems that we heard about
    from members of the first panel, we should instead, in my view,
    stick with the plans that are already working so remarkably
    well.
        What we're ultimately talking about here are the conditions
    under which soldiers are going to be trained and sent into
    battle. So let me close my comments by posing two questions. If
    soldiers are not to be trained in realistic conditions, in
    areas designated for that purpose, then where are they supposed
    to be trained? If weapons systems cannot be tested in areas
    designated for those purposes, then where is the weapons
    testing supposed to take place?
        Thank you very much.
        Senator Jeffords. Thank you, Dr. Cohen.
        Mr. Henkin.

       STATEMENT OF DAVID HENKIN, STAFF ATTORNEY, EARTHJUSTICE,
                              HONOLULU, HI

        Mr. Henkin. Aloha, Mr. Chairman, members of the committee.
        My name is David Henkin, and I'm here today from Hawaii to
    testify on behalf of EarthJustice, the non-profit law firm for
    the environment. I thank you all for this opportunity to
    testify in opposition to the exemptions proposed in the
    Department of Defense's Readiness and Range Preservation
    Initiative.
        As staff attorney for EarthJustice in its Honolulu office
    for 7 years, I have spent much of my career working with the
    critical habitat provisions of the Endangered Species Act to
    extend protection to essential recovery habitat for Hawaii's
    imperiled plants and animals. Accordingly, I will focus my
    testimony discussing why the proposed ESA exemption is
    unnecessary to ensure military preparedness and why, if
    enacted, it could spell disaster for important efforts to bring
    endangered species from the brink of extinction to recovery.
        Before I continue, I should mention that EarthJustice is
    the attorney for the plaintiffs in the Migratory Bird Treaty
    Act case involving Farallon de Medinilla, and I am prepared to
    answer questions you may have regarding that issue as well. I
    will mention only that, currently, there is no injunction in
    place. The court of appeals has lifted the injunction, and in
    fact, there was only an injunction in place for something on
    the order of only 2 or 3 weeks. So the Navy has been free to
    train as it sees fit while this issue is being worked out in
    the courts.
        With respect to the ESA exemption, and it is an exemption,
    it's not a clarification, it's quite clear under existing law
    that critical habitat can be, and is, designated on military
    lands as well as other Federal, State and private lands. There
    was no intent to carve out an exemption for military lands. So
    this is not a clarification, this is a new ``carving out,'' or
    exemption. It would exempt any military lands, any Department
    of Defense lands, if there is a Integrated Natural Resource
    Management Plan in place. Significantly, all that the proposed
    exemption requires is that the INRMPS address special
    management considerations. It does not require that the way in
    which they address the management needs of endangered species
    be adequate. There is no adequacy review. Therefore,
    effectively what this exemption is seeking to do is eliminate
    critical habitat protection from all military lands, because
    under the Sikes Act, they all have to have INRMPs in place. So
    as soon as those INRMPs are completed, and, by definition, they
    will all address to some extent habitat and species needs, then
    all the bases arguably would be automatically exempt if this
    exemption were to become law.
        Moreover, although the previous panel was focusing on
    military training needs, the exemption is not so narrowly
    worded. It would reach all DOD lands, even if they are used for
    recreation, or other non-training needs. It would take them out
    of the protection of critical habitat. Second, to the extent
    that the DOD tries to characterize its exemption as merely a
    clarification of existing policy, that is simply not correct.
    In Hawaii we have experience with the U.S. Fish and Wildlife
    Service reviewing the INRMPs for 11 military installations. And
    you have, with my testimony I have included a table that
    discusses their review of the INRMPs for 11 military
    installations throughout the State of Hawaii. In each and every
    case, the Fish and Wildlife Service determined that none of
    them provided adequately for the long-term conservation of
    Hawaii's endangered and threatened plants, and consequently
    none of them could substitute for critical habitat.
        By excluding these installations from critical habitat, the
    proposed exemption would be a major setback in the struggle to
    save endangered and threatened species in Hawaii such as the
    endangered Cyanea superba, which is only found at Makua
    Military Reservation on Oahu, and the endangered O`ahu
    `elepaio, which is found on three military installations on the
    island of Oahu.
        Not only that, the proposed exemption could similarly
    jeopardize the recovery of hundreds of species throughout the
    country. When one considers that the DOD controls over 25
    million acres, home to over 300 federally listed species, the
    implications for species recovery of this exemption is
    enormous.
        I'd like to point out another difference between the INRMPs
    and critical habitat. INRMPs are static documents. In other
    words, they are prepared once, and then, by law, they are only
    revised once every 5 years. So they do not guarantee that the
    review of DOD activities will be based on the best science
    available. In contrast, critical habitat has effect every time
    there is a site-specific and case-by-case analysis of what the
    impact of the proposed action will be on endangered species and
    threatened species and their habitat. By law that has to use
    the best science available. So only with critical habitat will
    we have the best scientifically based decisions for our
    endangered species.
        Finally, I would just like to mention briefly that there is
    no need for this exemption. Senator Inhofe mentioned the need
    for a cost-benefit analysis. Well, that's exactly what critical
    habitat designation provides, a cost-benefit analysis through
    Section 4(b)(2). Through that cost-benefit analysis, the
    Service already excluded all Camp Pendleton lands from
    gnatcatcher critical habitat. So there's already a cost-benefit
    provision, and it works to address the DOD's concerns.
        Second, briefly I'd like to mention Section 7(j), which is
    the exemption that the Secretary of Defense, not the President,
    but the Secretary of Defense can automatically invoke any time
    he feels that the Endangered Species Act is getting in the way
    of national security. That exemption has never been invoked,
    which leads one to question the need for the proposed
    legislation.
        Thank you very much for the opportunity to testify. We hope
    that you will continue to exclude these exemptions from the
    legislation that you finally adopt.
        Senator Jeffords. Thank you.
        Solicitor General Hurd, we're pleased to have you with us.
    Please proceed.

     STATEMENT OF HON. WILLIAM HURD, SOLICITOR GENERAL, OFFICE OF
                   THE ATTORNEY GENERAL, RICHMOND, VA

        Mr. Hurd. Thank you, Mr. Chairman, Ranking Member Smith. I
    appreciate the chance to be here today to express the views of
    the Virginia Attorney General, Jerry Kilgore. I apologize that
    my views are not in writing to give to the committee, but I
    will put them in afterwards with a written copy.
        We agree that military readiness and environmental
    protection are compatible goals. For this reason, we have no
    objection to the proposed clarifications in RCRA and CERCLA. On
    the one hand, the Department of Defense has said their proposal
    is critical to the national defense. We would say that the
    changes will in no way affect the way that we in Virginia, or
    any other State, to our knowledge, goes about enforcing RCRA
    and CERCLA. In fact, we have a lot of military ranges in
    Virginia, and we've never had a need to use our laws against of
    DOD's operational ranges.
        In short, it is our view that passing these clarifications
    will do no harm to the environment in Virginia and no harm to
    our authority in Virginia as the chief enforcer of our State's
    environmental laws.
        Now, the question has been raised about whether there is
    any adverse impact on our military readiness as a result of the
    present version of these laws. Mr. Chairman, there's no brass
    on my shoulders today and no brass on the shoulders of anyone
    else at this table right now. The Joint Chiefs have already
    addressed the question of military readiness. With due respect
    to my colleague to the left from the Attorney General's office
    in Colorado, I would suggest that this committee takes its
    views on military readiness from military general and not from
    attorney generals.
        There is also a question of whether these clarifications
    would undermine States' authority in dealing with the military.
    In our office, we argue State authority an awful lot. We argue
    federalism in court all the time. But in matters affecting our
    common defense, there is no place for States' rights. This is a
    matter of common defense.
        There is also the question of exactly what do these changes
    do in RCRA and CERCLA? Well, they don't affect the closed
    ranges, they affect the operational ranges. They do not modify
    EPA's existing authority to take action under CERCLA Section
    106, if there is an imminent and substantial endangerment, even
    on an operational basis. Nor do they affect the States'
    authority to act if there is a migration off an operational
    base.
        There have been, as my new friend to the right
    demonstrates, there have been actions of private groups against
    the military under various environmental laws. But no one has
    identified, to my knowledge, any action brought under RCRA or
    CERCLA by any attorney general's office. It is in fact not the
    attorney generals who are using these laws, it is private
    interest groups that are driving the military to make these
    clarifications. So for that reason, too, the clarification
    sought by the military will in no way undermine the authority
    of the attorneys general to take appropriate action with
    respect to protecting the environment in our home States.
        In sum, it is the view of Virginia Attorney General Jerry
    Kilgore that military readiness and environmental protection
    are compatible goals. For that reason, we agree with the Joint
    Chiefs. These proposals to modify RCRA and CERCLA are an
    appropriate way to advance these twin goals.
        Thank you, Mr. Chairman.
        Senator Jeffords. Thank you for your statement.
        Mr. Miller.

      STATEMENT OF DAN MILLER, FIRST ASSISTANT ATTORNEY GENERAL,
    NATURAL RESOURCES AND ENVIRONMENT SECTION, COLORADO DEPARTMENT
                           OF LAW, DENVER, CO

        Mr. Miller. Thank you, Mr. Chairman, Senator Smith.
        My prepared remarks today are made on behalf of the
    Attorneys General of Arizona, California, Colorado, Idaho,
    Massachusetts, Nevada, New Mexico, New York, Oregon, Utah and
    Washington. I have also submitted a detailed written statement
    that has also been endorsed by these States.
        Today I am only going to address those parts of the
    Department of Defense's proposals that would amend the Clean
    Air Act, RCRA and CERCLA. These are the laws for which the
    States are the primary implementers or in the case of CERCLA,
    major partners with the Environmental Protection Agency.
        First, we absolutely support the goal of maintaining the
    readiness of our Nation's armed forces. The men and women of
    our armed forces simply must have all appropriate training.
        At the same time, we strongly support our environmental
    laws, and we recognized that military activities can have
    severe impacts on the environment and human health. In our
    view, furthering military readiness and ensuring environmental
    protection are compatible goals, not mutually exclusive. The
    question is how to harmonize these competing concerns.
        I would like to make three main points today. First, as far
    as we are aware, the Department of Defense has not identified a
    single instance in which RCRA, CERCLA or the Clean Air Act has
    actually adversely impacted readiness. Consequently, we do not
    believe that these proposed amendments are necessary.
        Second, RCRA, CERCLA and the Clean Air Act already provide
    sufficient flexibility to accommodate potential conflicts in
    the unlikely event that they were to occur. Third, we also
    think that the Department of Defense's amendments go far beyond
    its stated concerns with maintaining military readiness and
    would likely provide a very broad exemption from State and EPA
    authority under RCRA and CERCLA for explosives and munitions.
        Regarding flexibility, RCRA, CERCLA and the Clean Air Act
    all allow the President to exempt the Department of Defense
    from their requirements on a case-by-case basis. Yet the
    Federal Government has never invoked these exemptions for
    military readiness purposes. The exemptions provide
    flexibility, coupled with accountability. Accountability is
    important, because Federal Agencies have a history of seeking
    to avoid compliance with environmental requirements. Federal
    Agencies have consistently had a worse compliance record than
    private industry, except under RCRA. The reason for that is
    that in 1992, Congress amended RCRA to authorize the States to
    hold Federal Agencies accountable for violating hazardous waste
    laws by penalizing them. Since 1992, Federal Agencies'
    hazardous waste compliance rates have steadily improved, and
    now surpass the private sector.
        Accountability is also important because of the
    environmental impact of military activities. Over 10 percent of
    the 1,221 sites currently listed on the Superfund National
    Priorities List are Department of Defense facilities. Although
    DOD has not documented instances in which these three laws have
    adversely impacted readiness, it has nevertheless proposed
    broad amendments. For example, proposed Section 2019 defines
    munitions, explosives, unexploded ordnance and related
    constituents are solid waste and thus subject to EPA regulation
    under RCRA as hazardous waste.
        By limiting which munitions meet the definition of solid
    waste, this amendment may also narrow the scope of State
    authority over munitions, because the term solid waste is used
    in RCRA's waiver of sovereign immunity, that's the provision of
    RCRA that allows States to regulate Federal Agencies.
        Under Section 2019, the only time munitions that have been
    used or fired on an operational range can be a solid waste is
    if they were removed from the range, they are recovered and
    then buried, or they migrate off-range and are not addressed
    under CERCLA. This redefinition of solid waste likely preempts
    State and EPA authority over munitions, explosives and the like
    on operational ranges. But contrary to DOD's assertions, it
    also likely eliminates State and EPA authority over the cleanup
    of munitions on closed ranges and on DOD and private sites
    other than ranges.
        Under DOD's definition, munitions that were deposited on an
    operational range and simply remain there after the range
    closes are not solid waste and not subject to RCRA. These
    residual munitions are precisely the problem at closed ranges.
    DOD estimates that there are up to 16 million acres of former
    ranges contaminated with unexploded ordnance in the country.
    Many of these ranges are now in private hands. In addition to
    the obvious explosive hazards, many munitions and explosives
    constituents have toxic or potential carcinogenic effects and
    can contaminate groundwater, as has happened at the
    Massachusetts Military Reservation.
        Proposed Section 2019(a)(2) also exempts from the
    definition of solid waste explosives and munitions that are
    used in training or research development, testing and
    evaluation of military munitions, weapons or weapons systems.
    This provision appears to create a wholesale exemption for
    explosives and munitions that apply to any facility with such
    waste, including private contractor sites, Department of Energy
    facilities, regardless of when the waste was disposed.
        In closing, we do not believe that DOD's far-reaching
    amendments to RCRA, CERCLA or the Clean Air Act are warranted.
    Instead, we would offer to work with the Department to adopt
    its readiness concerns within the context of existing
    environmental laws. We would urge that any proposed legislation
    on this issue go through a normal legislative process with
    public hearings before the committees with jurisdiction over
    the environmental laws.
        Thank you.
        Senator Jeffords. Thank you, Mr. Miller, for a very helpful
    statement.
        Mr. Phillippe.

       STATEMENT OF STANLEY PHILLIPPE, DIVISION CHIEF, OFFICE OF
     MILITARY FACILITIES, DEPARTMENT OF TOXIC SUBSTANCES CONTROL,
    REGION 3, ON BEHALF OF THE ASSOCIATION OF STATE AND TERRITORIAL
               SOLID WASTE MANAGEMENT OFFICIALS (ASTSWMO)

        Mr. Phillippe. Thank you, Mr. Chairman, Senators. I believe
    you have my written testimony so I'll be brief today.
        Good afternoon. My name is Stan Phillippe. I chair the
    Federal Facilities Research Subcommittee for the Association of
    State and Territorial Solid Waste Management Officials,
    ASTSWMO. Thank you for inviting ASTSWMO to testify concerning
    Department of Defense recent proposed amendments to RCRA and
    CERCLA.
        ASTSWMO is a non-profit, non-partisan association of which
    represents the collective interests of waste program directors
    of the Nation's States and territories. We are involved with
    base closure, cleanup and re-use, remediation of formerly used
    defense sites, as well as military facilities. We implement
    these laws in question.
        I am here to tell you today of our association's opposition
    to the amending language for RCRA and CERCLA proposed by DOD
    and to urge that you oppose these changes to the key
    environmental statutes. But I am also here to assure you that
    our association's members have strong and continuing support
    also for ensuring the readiness of the armed forces.
        That said, our examination of the proposed legislative
    April 2002 package DOD has titled Readiness and Range
    Preservation Initiative leads us to question both the need for
    and the wisdom of the proposed changes to these definitions. We
    are unaware of cases where State regulators have adversely
    affected readiness by seeking compliance with RCRA or CERCLA.
    To the contrary, State regulators routinely work with their
    military counterparts at the bases within the existing
    hazardous waste laws to find solutions to environmental
    problems in ways that avoid impacts to the bases' main defense
    mission. Concerns with RCRA or CERCLA appear to be speculative
    at most.
        The absence of any report of existing situations involving
    impacts on readiness seem to confirm our believe that normal
    RCRA regulation has not impacted military training on
    operational ranges. The more common State interest is the
    application of RCRA and State hazardous waste statutes to clean
    up requirements for closed and closing ranges that have been or
    will be transferred out of Federal ownership for civilian use.
    These cleanup requirements have nothing to do with current
    training activities and do not potentially endanger
    effectiveness of training.
        However, the proposed DOD changes to the statutory
    definitions of solid waste and to releases would arguably not
    only affect the application of the statute to operating ranges,
    but also to closed and closing ranges. As the State
    implementers of hazardous waste and cleanup laws, and given the
    complex nature of these fundamental statutory definitions, we
    believe that this is one of those cases where the first
    principle should be to do no harm.
        The suggested changes to RCRA and CERCLA read beyond DOD's
    immediate needs and could affect our later jurisdiction for
    cleanup of unexploded ordnance and other environmental hazards
    that may be caused by range use. If RCRA or CERCLA ever did
    impact readiness, these laws, as you have heard, contain
    Federal authority already to suspend application for national
    interests. We are not suggesting that the use of these
    authorities should be come routine, nor that they be used
    lightly, but they area available.
        Let me close with a thought that the proposed changes to
    RCRA and CERCLA are not justified by demonstration that RCRA or
    CERCLA have adversely affected readiness or that the changes
    are necessary in light of the flexibility that already exists
    within these laws. We think that it could have undesirable
    consequences on the Nation's primary hazardous waste and
    remediation statutes. States are concerned that the changes
    could eliminate State authority in the cleanup process for
    explosives and other range hazards, even in cases where the
    ranges are now or will be State, local or private property.
        I want to reiterate our desire to assist DOD and the
    military services to continue to work with them in making
    effective use of their active range resources, and to improve
    the likelihood that those ranges can continue to be usable.
    Thank you for requesting our testimony on this legislation. We
    feel that we can continue to work with the military to solve
    range cleanup problems without amending national environmental
    statutes, and we think that kind of cooperation is our best
    course for the future.
        Thank you.
        Senator Jeffords. Thank you again. Thanks to all of you for
    excellent statements.
        As the President has stated, we are in a war situation, and
    it's important that we make sure that nothing is adversely
    affecting our capacity in that regard.
        I would like to ask a question of each of you, then my
    partners here will have an opportunity also. My question is
    first to Ms. Clark. With regard to the changes proposed to the
    Migratory Bird Treaty Act, you suggested that no changes to the
    Act should be made, especially while memorandums of
    understanding are being developed between the Federal Agencies.
    Would you elaborate on this and tell the committee what the
    timetable is for the MOUs?
        Ms. Clark. Certainly, Mr. Chairman. I suggested that there
    should not be wholesale, sweeping exemptions to a law that has
    not been adequately reviewed in the policy arena. The issue in
    the Farallons is serious, and I'm not going to underestimate
    that. But as the record shows, it is under appeal, and I also
    understand that the military is working with the Fish and
    Wildlife Service on a special use permit. So that might be
    accommodated.
        While I was in the Government, certainly with the Fish and
    Wildlife Service, we spent a fair amount of time looking at the
    Migratory Bird Treaty Act. It's a law that's over 80 years old.
    It deserves a serious look and a serious policy debate on how
    you accommodate environmental security with issues like
    military preparedness. There are MOUs and I think policy issues
    that are being evaluated, they certainly were in the former
    Administration, I imagine they are being evaluated in this
    Administration. So I think this is one of timeliness, and not
    to have an immediate knee jerk reaction when there is not
    documentation to suggest that there's a problem.
        I believe that there can be ways through the policy arena
    and through current law to construct a process by which
    environmental security and military preparedness can be
    achieved.
        Senator Jeffords. This is for Ms. Clark and Mr. Henkin.
    This Administration has said that the Clinton administration,
    when you were director of the Fish and Wildlife Service, Ms.
    Clark, decided that the Integrated Natural Resources Management
    Plans, required under the Sikes Act, would provide for
    appropriate endangered species habitat management, there was no
    need to designate critical habitat on military installations
    that have completed these plans.
        However, in your testimony, and in yours, Mr. Henkin, you
    say that they are not sufficient. Could you please clarify for
    the committee the difference between what the previous
    Administration was supporting and what is in this proposal? Ms.
    Clark first.
        Ms. Clark. Certainly. I did indeed work very closely with
    the military, the Air Force in particular, in looking at the
    INRMPs as developed under the Sikes Act. What this initiative
    and this Administration does do is give blanket carte blanche
    evaluation and carte blanche head nods to all INRMPs regardless
    of quality. I was involved very clearly in a number of issues
    with the military when we were evaluating the sufficiency and
    quality of Integrated Natural Resources Management Plans, and
    whether or not they provided conservation benefits to the
    species that were under evaluation, whether or not the military
    department had guarantees regarding implementation of the plan,
    and whether or not there was adaptive management and monitoring
    involved in all the INRMPs. That was the case in Camp
    Pendleton, when in fact we proposed the significant overlay of
    critical habitat, then based on the military readiness needs,
    plus the quality of their resource management plan, we withdrew
    that proposal.
        So I'm not here to say that Integrated Natural Resources
    Management Plans can't be sufficient. But to across the board
    do a sweeping statement that if you develop a plan it's good
    enough I think is shortsighted and biological suicide. It's an
    incorrect way to address declining species.
        Senator Jeffords. Thank you. Mr. Henkin.
        Mr. Henkin. Yes, I'll just continue with that line of
    thinking, which is that when the Service is considering whether
    to designate critical habitat on military installations, it
    takes a careful look at the INRMP to see whether there are
    adequate provisions for the conservation of the species and
    habitat found there, whether there is adaptive management, and
    whether there is a long-term commitment to implementing those
    provisions. It doesn't look just at whether there is a plan
    that addresses these issues. It looks to see whether or not
    there is a plan that addresses these issues adequately and
    guarantees that they're going to be implemented.
        This is not a theoretical discussion as to whether the
    proposed exemption language implements existing policy. It
    manifestly does not, as the chart that is included in my
    testimony makes clear, my written testimony made to the
    committee. The Fish and Wildlife Service is in the process
    right now in the State of Hawaii of looking at designation of
    critical habitat for plants throughout the State. As part of
    that designation process, they have very carefully reviewed the
    INRMPs for 11 military installations, both Army and Navy. They
    have found in each and every case that those INRMPs were
    wanting, that they did not have adequate funding, that they did
    not have adequate management.
        If this exemption were to become law, what you would find
    is a much lower level of protection, inadequate protection for
    endangered species and their habitats. So the current proposed
    exemption does not implement existing policy. What the existing
    policy does, and the part of the policy I think is quite
    appropriate, is when it considers INRMPs as part of the cost-
    benefit analysis. Under Section 4(b)(2) of the Endangered
    Species Act, critical habitat designation must be based on a
    cost-benefit analysis. So one of the things you need to put
    into the equation is what type of management currently that
    habitat and that species is receiving. Because that gives you
    an idea of what incremental advantage designating critical
    habitat will give.
        Then you also look at the cost to the facility.
        Camp Pendleton is an example of where there was a
    determination made that, because of the adequacy of the
    management that had been put in place there and the commitment
    to carrying through with that management, in addition hearing
    the concerns of the Marines about limitations on training, the
    Fish and Wildlife Service exercised its discretion to eliminate
    certain, actually all of the gnatcatcher critical habitat from
    Pendleton. That is an example of the type of decisionmaking,
    case-by-case decisionmaking, case-by-case balancing, that
    exists under the current law and that would be taken away in a
    blanket fashion, with no showing of military need and no
    showing of adequacy of management, under the proposed
    exemption.
        Senator Jeffords. Mr. Miller, it is your understanding that
    these proposals would affect closed military bases as well as
    operational facilities. Is that correct?
        Mr. Miller. Yes, it is.
        Senator Jeffords. There has been some confusion about
    whether munitions waste is currently considered to be a solid
    waste under the Resources Conservation and Recovery Act. As I
    understand these proposals, the munitions waste would be exempt
    from the definition of solid waste?
        Mr. Miller. That's correct. Munitions, explosives,
    constituents, unexploded ordnance would all be exempted from
    the definition of solid waste under RCRA.
        Senator Jeffords. Is such an exemption a change from
    current law?
        Mr. Miller. Yes, it would be. In 1992, in the Federal
    Facility Compliance Act, Congress directed the EPA to
    promulgate regulations defining when military munitions become
    solid waste. EPA enacted a regulation that specified a certain
    narrow class of munitions with these solid wastes and withheld
    judgment on determining whether waste, particularly at closed
    transferred ranges, whether munitions of those ranges would be
    solid waste or not.
        Pending the Department of Defense's development of what was
    known as the Range Rule, DOD had proposed to promulgate a
    regulation governing the cleanup of munitions at closed,
    transferred and transferring ranges. They ultimately withdrew
    that regulation, it was never finally promulgated. EPA, when it
    originally promulgated its munitions rule, had indicated it
    would revisit the issue of whether these munitions were solid
    waste or not. So they had expressed an intent, I think, to
    regulate them. But they have not yet done so.
        Senator Jeffords. My final question, I am generally aware
    that the waivers of sovereign immunity have been hotly debated
    in the context of enforcement of the environmental laws at
    military facilities. I am concerned that this debate often
    stalls cleanup. Is it your experience that the sovereign
    immunity is often invoked by the Federal facilities and how
    might this situation be affected by these proposals?
        Ms. Miler. It is our experience that Federal Agencies
    frequently rely on limited, frequently argue that the waivers
    of immunity in the environmental law should be construed very
    narrowly and that the States should not be able to regulate
    cleanup of their facilities. In Colorado, we had a lengthy
    litigation against the Army regarding cleanup at the Rocky
    Mountain arsenal where they made sovereign immunity arguments,
    among others. Ultimately the State prevailed in the Tenth
    Circuit. The Tenth Circuit held that State authority under RCRA
    exists side by side with Federal authority under CERCLA.
        But what these amendments would do is, by amending the
    definition of solid waste, to exclude most munitions, including
    unexploded ordnance on closed ranges from the definition of
    solid waste. That would likely be interpreted to preempt State
    authority. That's because the RCRA waiver of sovereign immunity
    is phrased in terms of State requirements respecting the
    control and abatement of solid waste. So if the Federal statute
    exempts munitions from the definition of solid waste, then they
    don't fall within the scope of the waiver, and State efforts to
    use State authorities or RCRA authority to address the cleanup
    of those wastes would be preempted.
        For example, we have a lawsuit that we filed, a citizen
    suit, where the RCRA citizen suit provision against the United
    States regarding the cleanup of unexploded ordnance at the
    former Lowry Bombing and Gunnery Range, which is a 60,000 acre
    range. It's a formerly used Defense site, now largely in
    private hands, but some of it is in local public ownership.
    It's on the eastern edge of the Denver metropolitan area, it's
    about to become suburbanized. But if these amendments were to
    pass, I think it could severely affect our legal position in
    that suit, and affect the State's authority to ensure an
    adequate cleanup of these lands that are about to become part
    of the city of Aurora.
        Senator Jeffords. Senator Smith.
        Senator Smith. Mr. Miller, were you just talked about
    closed basis or operational bases?
        Mr. Miller. The amendments go to both, go to State
    authority and EPA authority at both closed and operational
    ranges. My response to Senator Jeffords' question primarily was
    addressing the closed ranges.
        Senator Smith. The lawsuit was over closed.
        Mr. Miller. The lawsuit is at a closed range, that's
    correct.
        Senator Smith. You all heard the military officers who were
    here before you. They're trying to do the best they can to lead
    our troops at a very, very difficult time. But yet you all
    heard them say that the existing statutes are difficult for
    them, to put it nicely. If you want to put it a little more
    abruptly, a little stronger, they can't work under them. The
    remedy doesn't work. Did they mislead us? Or is there a problem
    here? Those of you that, I think the four of you here who are
    saying that the remedy they propose is wrong, well, let's make
    that assumption for the sake of argument. Then what do we do?
        Mr. Phillippe, what do we do? Just a short answer, please.
        Mr. Phillippe. Sir, I think most of the examples that they
    cited were outside of the area that our association deals with,
    which is RCRA and CERCLA. I'm just not aware of any examples
    where RCRA and CERCLA have hopped up and gotten in their way at
    a range.
        Senator Smith. You said that you consistently, I'm trying
    to paraphrase, you have consistently worked with DOD and the
    military service to resolve range related issues dealing with
    those statutes. In how many instances have you done that?
        Mr. Phillippe. We tried to do some canvassing to figure out
    some actual examples where RCRA or CERCLA either had gotten in
    the way of a readiness or training issue, or where we'd worked
    things out. The list was not a very good list. We just don't
    have a lot of examples at all.
        Senator Smith. How many?
        Mr. Phillippe. Typically the kinds of things that I got
    back were places where we've made modifications in cleanup
    schedules, because funding has been shifted from the
    environmental cleanup program to some other military need.
        Senator Smith. Then there are some problems, then, you have
    to deal with it, right? There are some problems being addressed
    here. If anybody else would like to comment on the first
    question, please go ahead.
        Mr. Henkin. Yes, sir. With respect to whether there's a
    problem, my personal view, and our EarthJustice's view is, ``if
    it ain't broke, don't fix it.'' The laws already provide for
    the flexibility to address the issue that have been raised by
    the first panel, and with the exception of the MBTA, and we can
    address that separately, they all have provisions for
    exemptions. In response to your question, sir, the General made
    it quite clear that the military never have has requested any
    of those exemptions, but if it needed them on an emergency
    basis, the President could respond quickly. With respect to the
    Endangered Species Act, it is not the President from whom the
    military would have to seek an exemption, but it is the
    Secretary of Defense, the Cabinet official with the primary
    responsibility for making sure that our military is prepared.
        So, in light of the GAO report which seriously questions
    the factual foundation, basically there isn't data there. I'm
    not saying that there aren't issues, but what I am saying is
    that we don't have any real information about what the issues
    are, so that we can approach them in a productive fashion. Many
    of the examples cited, at least the ones that I'm familiar
    with, have nothing to do with the proposed changes to the laws
    that they're talking about.
        Senator Smith. But again, we're talking about the
    possibility of leading men and women who are trained in battle,
    who are properly trained into battle. I think you're correct,
    that the law, you are correct that the statutes do provide
    remedies. I don't think that's the issue. I think the issue is,
    is the remedy acceptable in a difficult time such as a time as
    war. We can say a jury can assess a death penalty and then
    maybe 30 years later maybe it's applied, if it's ever applied.
    That's not acceptable. It might be great for the guy on death
    row, especially. But I mean, the point is, we don't have that
    kind of timeframe to work with.
        Let me just give you an example. You said, you used the
    term that the injunction we're talking about in that military,
    in that Farallon de Medinilla case here's what the court said.
    Now, you're the General and you're out there and you're told
    you have to train the troops. I'm not arguing the point about
    it, I want to protect wildlife as much as anybody else. But
    you're the General out there, you have to conduct these
    exercises, you're told to have your guys prepared to be in the
    Persian Gulf next year or whatever. And here comes the order,
    upon consideration of the emergency motion for stay of
    injunction pending appeal, ordered that appellant's motion be
    granted, that is, that they be allowed to continue to train,
    the appellant being Secretary Rumsfeld and the Secretary of the
    Navy.
        The District Court's May 1, 2002 order enjoining appellants
    from conducting military training exercises on the island of
    Farallon de Medinilla that can potentially wound or kill
    migratory birds is stayed, pending further order of the court.
    So it's a temporary stay, not a permanent stay.
        So now you're the officer out there, and you're damned if
    you do and damned if you don't. If you go out and conduct the
    exercises, and more birds get killed, then you're further
    exacerbating your problem. If you don't conduct the exercises,
    you're risking the lives of men and women in battle. We could
    argue that, but the point is, the General out there, he's got
    to make the decision. It's not a clear cut case.
        So I think what we ought to be doing here, instead of
    arguing about whether the exact summary of the request of the
    Administration is appropriate or not, Ms. Clark, and you said
    that, I don't think we should b arguing about that. Maybe it
    is, maybe it isn't. Maybe there are just some things that I
    think we might be misreading what the intention was here.
        I have talked to all the officers involved in this, and I
    believe that they want to comply, they just want some
    reasonable standard that would allow them to make decisions
    that they have to make. When the President says, get the troops
    ready for Iraq tomorrow or whatever the case may be, they've
    got to do it. You know, these kinds of court orders, with all
    due respect, they could be forced into court again, for perhaps
    exacerbating a species problem or a migratory bird problem as a
    result of the court order that told them to do it anyway.
        That's the only point I'm trying to make. I think we should
    get away from saying that these guys are wrong in bringing this
    point up and that they somehow want to violate all the laws. I
    think Senator Inhofe made a very good point, he talked about
    species growing as a result of management on the reserve. I'm
    familiar with the cockaded woodpecker at Camp LeJeune, because
    I've been down there and I've seen that. But again, if the
    woodpecker has a certain amount of habitat, and I don't have
    the specifics, but just say it's 100 acres of habitat, and
    because of good management, the bird begins to move into 200
    acres of habitat, and you have five times as many woodpeckers
    as you had before, and I think one of the Generals or the
    Admiral used the example of the turtles. They started with 8 or
    10 turtles, now they have 120 turtles as a result of
    management. So now they're going to be punished for conducting
    the exercise.
        This is the part that I'm trying to get a handle on. I have
    interest in both areas here, as a member of this committee and
    the Armed Services Committee, and Senator Warner does. But I
    just think we're missing the boat if we're going to say that
    the intention here for the military is to throw all the
    environmental laws out and just act on every single one of
    these. I think what they're asking for is clarification. I just
    would ask you, if you could, to respond in what might be a
    reasonable clarification that an operational officer in the
    field in some CINC somewhere in the world has to make a
    decision on.
        Ms. Clark. If I could try and respond to that, Senator. I
    think it's unfortunate that this is building to becoming a
    choice between protecting our natural heritage or defending our
    national security. Our challenge is to figure out a way to do
    both. I am not about to discount the concerns of the military
    readiness professionals. I've seen it and I've lived it and
    it's very real. All we have to do for those of us that are
    around the Chesapeake Bay is look at what the green space is
    that's left, it's Aberdeen Proving Grounds, it's Fort Meade,
    it's Patuxent Naval Air Station that host a terrific abundance
    of wildlife that have been lost around the Bay because of just
    the sheer development pressures.
        At Fort Bragg, I can remember clearly being down there with
    the military officers while we sat and looked at what they used
    to call the measles map, which were the red-cockaded woodpecker
    trees all over the installation. And a lot of their compression
    of training activity may have been certainly a function of what
    was happening with endangered species. But a lot of that open
    area was being compromised by the sheer enormity of the
    development pressure.
        To Fort Bragg's credit, and the Army's credit, they worked
    with the Nature Conservancy and the Fish and Wildlife Service
    and others to create some buffer around Fort Bragg to take the
    pressure off the installation. So the military just because of
    their virtual existence and their buffer areas do create some
    of the havens, because of the development pressure.
        Senator Smith. I don't want to belabor it, but I just would
    like, and it's not meant to be hostile, it's just meant to try
    for me to understand what the person on the base whose job is
    to advise the General on wildlife management, and the General,
    supposing in the case of the woodpecker at Camp LeJeune, it's
    not a case, it's a fictitious example, but let's say that the
    bird for whatever reason has now moved out into hostile
    hundreds of other acres of the base.
        Well, what happens? What do we do? Does the bird get the
    land, or does the military get the land? What happens? What are
    we supposed to do in a situation like that where our own
    success in preserving that particular wildlife habitat and the
    wildlife itself comes in direct conflict, because it continues
    to encroach? What do we do?
        Ms. Clark. I referred to in my testimony the notion of
    early involved consultation. That hasn't been that long that
    the military and the Fish and Wildlife Service or National
    Marine Fisheries Service have worked closely in trying to
    balance the needs for environmental protection with military
    readiness. In those instances where the Services were brought
    in early to understand the battlefield conditions or the needs
    of military preparedness, they have worked out collaborative
    compromises. I have seen that over and over and over.
        My concern and the concern of the National Wildlife
    Federation is to have a carte blanche, sweeping exemption is a
    bit shortsighted, when in fact what we need to encourage is
    collaboration and early involvement and reconciliation of
    concerns and differences in the dynamic environment, rather
    than trying to accommodate 25 million acres, 400 plus
    installations, with one sweeping statement.
        Mr. Henkin. If I may, sir, with respect to the two issues
    that you raised, FDM, and the red-cockaded woodpecker. First,
    with respect to the woodpecker, there is nothing in the
    Endangered Species Act that prohibits the Fish and Wildlife
    Service from authorizing the military to kill, to take
    individual members of endangered species as long as it is not
    going to jeopardize their continued existence. I think a lot of
    the concerns that were expressed by the previous panel had to
    do with limitations on training imposed by the Section 9 take
    prohibition, rather than critical habitat. Because very few of
    these installations have critical habitat designated on them.
        So with respect to that expansion, to the extent that
    you're not jeopardizing, in other words, pushing the bird to
    extinction, the law as it exists already allows for this
    mechanism to try and mitigate and minimize that take to the
    maximum extent practicable.
        Senator Smith. The law allows it----
        Mr. Henkin. The law allows it and it can be done.
        With respect to FDM----
        Senator Smith. I don't want to encroach on Senator Warner's
    time, but the law allows for it, no one will dispute that. It's
    the way the law allows for it that's the problem. You can't get
    a decision in a reasonable amount of time. That's the issue.
    Nobody's answered that question yet.
        Mr. Henkin. I think with respect to FDM, the Navy
    recognized the need to get a Migratory Bird Treaty Act permit
    back in the 1990's. In 1996 or 1997, it applied for a permit.
    And the Fish and Wildlife Service denied it a permit, because
    the Navy had not put together a permit application that
    satisfied the requirements of the law. Rather than try to work
    with the Service, and this is now 5 years ago, rather than try
    and work with the Service to see whether or not there was the
    possibility to get a permit under existing regulations, or if
    there needed to be new regulations to address this unique
    situation, the Navy went ahead with its bombing.
        The situation right now is that the Department of Justice
    attorney has represented to the court that both the Department
    of Defense and the Fish and Wildlife Service believe that,
    under the current legal structures, they can secure a permit.
    Now, that's still in progress, both in the courts and in the
    permitting process. So we don't know what the outcome of that
    is going to be at this point.
        But as far as the commander who is concerned about whether
    he can schedule training, I don't think there's any dispute--
    and we represent the plaintiffs, who are now the appellees--
    that while the injunction is stayed, the Navy may train. That's
    the situation that we have right now. I guess the last thing on
    that score is that with respect to the Migratory Bird Treaty
    Act, this has been in effect for over 80 years. In all that
    time, this is the first instance in which the military has
    expressed any concerns in terms of its application. It just
    seems to us that it is premature to exempt all military
    activities from the MBTA without additional working through
    these issues in the courts.
        Senator Jeffords. Senator Warner.
        Senator Warner. Thank you, Mr. Chairman.
        Mr. Chairman, we've had a good hearing. And I say that to
    you and the Ranking Member, I've learned a lot and I have more
    to learn. But I want to phrase my question to you, just to the
    panel, if anybody wants to volunteer an answer. I've looked
    over your credentials and background and you certainly have,
    all of you, a lot of experience.
        No. 1, we're all equal patriots. You're no less a patriot
    than the officers who sat before you here with 30 plus years of
    service. I start with that assumption. And you're concerned as
    I'm concerned about the young persons, basically your age, Mr.
    Henkin, who are moving out there into combat tomorrow. And they
    need to train. So we're all on the same base of fact.
        The problem as I see it is that these officers have come
    forward to represent that the courts in their decisions and so
    forth are just impeding the progress to the point where they
    can no longer deal with going through, as you said, Ms. Clark,
    the regulations and the hearings and all these things. In the
    meantime, the President is saying, look, I want this aircraft
    carrier or this division in place in 60 days. So we've got to
    do something. It seems to me, is there a short-term fix on this
    thing while we all sit down over a longer period of time to try
    and understand it? In other words, I see the pressure from our
    national defense. I don't want to run roughshod over the
    environmental laws.
        Has anyone got an idea? Am I wrong in the assumption that a
    clarification could open up certain interpretations which would
    allow far more use of other areas in military ranges in such a
    way that it would be antithetical to environmental law goals,
    and therefore we'd better focus on just, the President says, I
    need this range and I've got to use it and I've got to use it
    now, despite this court's decision. Can anybody help me on
    this? What do we do?
        Mr. Henkin. Senator, if I may?
        Senator Warner. Yes.
        Mr. Henkin. With respect to all the laws that the committee
    is considering today with the exception of the Migratory Bird
    Treaty Act, there is currently immediate relief available for
    any essential national security training. If the laws are
    deemed to be in conflict with that training happening, and
    that's via an exemption that's automatic under the ESA, and as
    I understand it, although I'm not----
        Senator Warner. That was my understanding when I waled into
    the hearing room. But right in that very chair sat the Marine
    Corps officer saying, we just don't do it any more, it takes
    too long, we can't get it done. Did you hear him on that?
        Mr. Henkin. I did hear, yes, sir, I did hear that he said
    that not only, ``We don't do it any more,'' but that they have
    never done it. I wonder why they haven't tried it. And I agree
    with those who testified earlier saying that these should be
    used sparingly. The intent, these exemptions should be used
    sparingly, they are intended to deal with only----
        Senator Warner. I agree with that.
        Mr. Henkin [continuing]. Situations of true national
    emergency and national security, not convenience or expedience.
    I am not suggesting that the other gentlemen are seeking them
    for that purpose. But they haven't tried that process. And the
    answer that I heard to Senator Smith's question about how
    quickly could you get an exemption from the President I believe
    was overnight. That's not how they do it. They've never done
    it, but he represented it--but it could be done if we were
    truly talking about national security. And with respect to the
    Endangered Species Act, it's the Secretary of Defense who makes
    that finding.
        Again, the exemption from any provision of the Endangered
    Species Act, be it the take prohibition, critical habitat, even
    pushing species to extinction, is in Secretary Rumsfeld's sole
    discretion to invoke that. Again, he should not do it lightly;
    he should not do it frequently. But if your concern is, and I
    think we all share this concern, that our country address
    whatever threats face it, as we need to do, the authority
    exists under the existing laws to address it in the short term.
    With respect to the Migratory Bird Treaty Act, those issues are
    still being worked out in court, and the status quo, the
    current situation is that the Navy and any other branch of the
    services that wishes to train at FDM can do so.
        Senator Warner. I know each of the officers personally,
    have known several of them for a long period of time. They are
    individuals that are well intentioned and very clear, law
    abiding individuals. They have a legion of people behind them
    who are environmental experts.
        Now, somewhere, there's a breakdown. Because I have to
    assume that those environmental experts in the Department of
    Defense are as knowledgeable, and you've spoken very
    knowledgeably here, as you are, why are they not telling these
    officers, well, you can do it this way if you wish, you don't
    need all these waivers and clarifications? Somewhere there is a
    breakdown, and I intend, presumably others likewise, to sit
    down in a room with all these people and put to them the tough
    question, you know, Mr. Henkin says you've got the authority to
    do it, now why are you coming up here asking for this relief?
        Ms. Clark. Senator Warner, I think I have some insight into
    their reluctance to raise the flag of an exemption. And I also,
    in listening to the four gentlemen in the previous panel, have
    come to realize that what they have proposed isn't going to
    solve their problem. Because especially for the Endangered
    Species Act, when one of you asked, give me some examples, I
    think it was Senator Smith, give me some examples for the
    record of conflicts, most of the examples that they gave would
    not be resolved by their proposal.
        So I think part of this, if we could all just take a deep
    breath and better try to collaborate and understand what the
    rub is and what the conflict is, we might be able to find some
    creative policy solutions. I think, and I've been in enough of
    these meetings to know that the reluctance to declare the
    Secretarial exemption to the Endangered Species Act clearly has
    to do with who is going to take the responsibility and shoulder
    the responsibility for making that decision. It's not
    politically palatable to make a decision to circumvent an
    environmental law. But clearly, the Secretary of Defense has
    that capability. I think it just has been, there's been
    reluctance in the past. I think in a time of war, with clear
    documentation, that I'm sure they must have, it is within the
    jurisdiction and has never historically happened.
        Senator Warner. Mr. Chairman, I hope that our record will
    be available soon, so that we can take this colloquy to the
    Department of Defense and show it to them and say, look, these
    are well intentioned people, they want to try and help, what is
    your rebuttal to this? I'm curious, is anybody in the audience
    from the Department of Defense? Just raise your hand. In other
    words, they all left the room and nobody's listening to this--
    in the back corner. You're going to hear from me, OK?
        [Laughter.]
        Senator Warner. Take into heart what we're trying to do
    here, please, sir, I say that respectfully.
        Let me ask one last little clarification. I've sort of
    rambled around a little bit. And that is the word
    clarification. Would it be better from the protection of the
    framework of environmental laws to try and seek clarifications
    or to proceed on these routes of the Presidential exemptions or
    waivers?
        Mr. Miller. May I respond to that, Senator? At least with
    respect to the pollution control laws, RCRA, CERCLA and the
    Clean Air Act, I think it would be preferable to rely on the
    case-by-case exemptions. As we testified earlier, it's our
    understanding that the Department of Defense has not identified
    situations where there have been actual impacts caused by those
    three laws on readiness. We heard a lot of examples of impacts
    on readiness today. Listening to testimony it appeared to me
    that those all occurred under the animal protection laws.
        The only example that was given with respect to RCRA or
    CERCLA was the citizen suit that's been filed in the State of
    Alaska. I would disagree with the testimony, with the
    conclusions that the previous panel drew that if the plaintiffs
    are successful in that lawsuit that it would have a significant
    impact on readiness. I think the consequence would be actually
    to further readiness by maintaining range sustainability.
    Because the result would be that they'd have to get a permit
    under RCRA. You could establish, as we've described in our
    written testimony, it would be possible to establish permit
    conditions that allowed for continued military training while
    protecting the environment. I don't really see any real
    conflict there.
        Further, you have expressed serious concern that any
    clarifications, whatever you want to call it, to the laws, not
    be extended beyond the Department of Defense, basically not to
    go beyond military readiness concerns. I think that the
    existing national security exemption in each of the pollution
    control laws clearly fits that bill. That's what it's there
    for. It's not available to private industry, it has to be made
    under those three laws by the President.
        But it's not a significant burden. In the written materials
    that I submitted, there is an example of a Presidential
    determination that President Bush made this last year with
    respect to security concerns, not readiness, but national
    security concerns at the Air Force Groom Lake facility in
    Nevada. This exempts the Air Force from having to comply with
    certain RCRA information requirements. It's three paragraphs
    long.
        So I don't think it's a significant burden, particularly
    for the pollution control laws, where it appears to us that the
    likelihood of conflicts between the requirements of those laws
    and military readiness is really fairly remote. The case-by-
    case exemptions that already exist in the statute----
        Senator Warner. Does anyone else just wish to address the
    question of clarification versus exemption with regard to the
    presentation of the environmental laws?
        Mr. Cohen. Yes, Senator Warner, I'd like to address that
    very briefly. I was struck by the tenor of the gentlemen in the
    first panel. How often in public policy debates do we have the
    opportunity to see problems coming? The gentlemen came over
    here today because they are noticing that something isn't
    working, they are encountering problems. When they look at the
    existing regulatory structure, they are finding that with
    respect to training soldiers for combat, there are such
    impediments on that that it's difficult for them to get from
    here to there.
        They came over here today, they explained to us the
    difficulties they encountered, and they made proposals as to
    how they were to be addressed. They universally came up with
    the conclusion, came to the conclusion that clarifications were
    the way to go, clarifications, not exemptions, clarifications
    were the best way to address this problem. It's very difficult,
    as the GAO report has been referred to, to talk about this
    issue in terms of quantity. In other words, what we're talking
    about here, in training that goes on on bases all over this
    country on a day to day basis, not the kinds of things that
    would require a Presidential order of some kind, just the kind
    of day to day training to train soldiers for the rigors of
    combat, that certain things need to be done.
        It is, I think, vitally, vitally important for us to
    realize that they have suddenly come up with, encountered
    barriers that they don't know how to deal with. What I hope we
    have begun here this afternoon is a dialog on how to deal with
    this. We cannot proceed on the assumption that there are no
    problems. We must instead look for solutions.
        Mr. Hurd. If I could add one comment, following Dr. Cohen's
    remarks. It seems to me that one problem with this exemption
    route is that it imposes upon the President the responsibility
    to make decisions that ought to be made by a field grade
    officer, in many cases, about what training is appropriate and
    when it's needed. Moreover, the standard that must be met here
    is very high, for a case-by-case basis. And that particular
    case is paramount national security. The President, it seems to
    me, has better things to do than worry about training decisions
    that ought to be made at that low level.
        With respect to Mr. Miller's comments about closed bases,
    I've sat here with this law in front of me trying to go through
    it, trying to grasp why he thinks it applies to closed bases. I
    can't do it. It seems to me the law does, the changes do what
    the Joint Chiefs have asked. But if there is some problem with
    that, some ambiguity he finds, it seems to me the solution is
    to write in a new sentence, not to chuck the whole idea.
        Senator Warner. I thank you, I have used all my time.
        Senator Jeffords. Senator Smith.
        Senator Smith. Tell me one thing, help me understand this.
    Were they wrong in the FDM case? Were they wrong in the FDM
    case to go through the court, to seek relief through the
    courts? Should they have gotten a waiver and not gone through
    the courts? I'm just asking as to what the proper procedure
    should be in a case like that. Did the military err by asking
    for relief in the courts in that particular case?
        Mr. Henkin. The case was brought by a citizens group. So it
    was not at the Navy's initiative, it was in response to the
    district court's order. I guess my perspective on it is similar
    to that that Ms. Clark expressed, which is, back in 1997, 5
    years ago, had the Navy worked with the Fish and Wildlife
    Service to try to address how to reconcile those needs, we
    wouldn't be----
        Senator Smith. You took them to court, didn't you?
        Mr. Henkin. Well, because, and as the district court found,
    because they were bombing and killing birds without a permit.
    There is no, no one has ever said to the court, and no court in
    this action has found that, if they had a permit, there would
    have been any problem. The problem was, like a lot of
    regulatory programs, the Migratory Bird Treaty Act requires
    people who are taking action to seek out a permit, make sure
    they have the proper things in place before they go about the
    action.
        Senator Smith. But they appealed, I know they took them to
    court for the birds that were killed. But what I'm trying to
    get at is, if they appealed for a decision, if they went to the
    President for an exemption, that doesn't stop your lawsuit.
        Mr. Henkin. If an exemption were granted, it sure would.
        Senator Smith. It would stop the lawsuit if an exemption
    were granted? Well, I think Mr. Hurd made a very good point,
    though. For the President to get into a command, it's not just
    a command decision. I mean, it is a command decision in terms
    of the training. But it's also a decision about, on the other
    side of the coin, about the wildlife. The President, I don't
    think in most cases, would have that kind of detail on his
    plate, to be able to make a good decision without a whole bunch
    of information that would have to flow all the way up.
        So I mean, it just seems to me, the bottom line is we have
    some problems here in term of process. I don't think there's
    anybody trying to get around the law, but I think there is a
    problem in term of process as to how we work this out when real
    problems occur.
        Mr. Henkin. In terms of the process, I go back to the
    Endangered Species Act and the designation of critical habitat
    which allows a case-by-case review, which we do strongly favor,
    rather than blanket exemptions. Particularly with the critical
    habitat provisions, blanket exemptions that would extend beyond
    military training facilities.
        But in that, there are two levels of case-by-case review.
    One is in the designation of that habitat under Section
    4(b)(2), and that's a Camp Pendleton type situation where there
    was no need for a Presidential exemption. It was the cost-
    benefit analysis that the law required that led the Fish and
    Wildlife Service to hear the Marine's concerns and exempt the
    entire facility. If the Department of Defense is dissatisfied
    with the outcome to the extent that it feels that not only does
    it burden . . . . Because I think we all have to be honest,
    that environmental protection doesn't come for free; it
    requires an effort from all Federal Agencies. In fact, under
    the ESA, all the American people bear some percentage of that
    burden, to make sure we protect our species and our habitat,
    and poll after poll shows that the American people feel that
    that's the right way to go.
        But in the case where the case-by-case review in Section
    4(b)(2) led to a situation where the Chiefs of Staff felt that
    there was truly a national security issue raised, it would not
    fall to the President but to the Secretary of Defense to make
    that determination, again, case by case.
        Senator Jeffords. Thank you all. This has been very
    helpful. I'm not sure how much we cleared up or what we will
    decide, but it's been fascinating to listen and to ponder what
    this committee must do, if anything. Thank you all.
        Before I close, I want to ask unanimous consent for the
    statement of Senator Lieberman to be put into the record
    without objection.
        We should warn you that officially, all the members that
    would have been here have the right to now write you questions.
    But I wouldn't stand waiting by the mail box too long.
        Thank you.
        [Whereupon, at 5:23 p.m., the committee was adjourned, to
    reconvene at the call of the chair.]
        [Additional statements submitted for the record follow:]
      Statement of Hon. Max Baucus, U.S. Senator from the State of Montana
        Mr. Chairman, I applaud you for holding this hearing today on the
    Readiness and Range Preservation Initiative provisions that have arisen
    in the context of the National Defense Authorization Act for Fiscal
    Year 2003. This is an important debate that raises issues under the
    jurisdiction of this committee and I am pleased, Mr. Chairman, that we
    will have this hearing record to share with the conferees of the House
    and Senate on the Defense Authorization bill.
        Mr. Chairman, I think we can all agree that it is imperative to
    maintain our military's superior readiness capabilities, particularly
    as we call upon our armed forces to defend us in the war against
    terrorism. I believe we are united in our desire to ensure that all of
    our troops have the training and experience they need to enhance their
    effectiveness in combat and to minimize the likelihood of casualties.
        The testimony of the Vice Chiefs of Staffs for our armed forces,
    and the Readiness and Range Preservation Initiative that they advocate,
    raises the concern that certain of our environmental laws may impede
    the military's ability to maximize the readiness of its troops for
    combat. This is not a concern that we can take lightly, and we should
    consider the matter seriously. I know that's precisely the reason you
    called this hearing today, Mr. Chairman.
        That said, we must also recognize that our bedrock environmental
    laws play a vital role in protecting the health and well-being of our
    citizens, and our precious natural resources. I firmly believe that we
    can have the greatest, most well-prepared military in the world and
    maintain our high environmental standards. And, Mr. Chairman, I'm not
    sure that we need to make changes to current law to achieve this
    balance.
        From what I have found in the testimony submitted to this committee
    today, the Department of Defense has developed a remarkable record of
    environmental stewardship, coming to the table with other Federal
    agencies to develop innovative solutions to enhance military readiness
    while protecting the environment and public health. It has done this
    despite its previous legacy of large-scale environmental contamination,
    much of which continues to haunt the Department today and cost the
    taxpayers billions of dollars.
        Part of this new-found success is due to the environmental laws
    developed in this country over several decades and the public's
    emerging environmental consciousness. Most of our environmental laws
    provide some measure of flexibility to our armed forces to respond to
    national security concerns on a case by case basis. Some of those
    flexibility mechanisms have never been invoked by the Department.
        So, Mr. Chairman, I hope this hearing will help us better
    understand exactly what the Department of Defense's concerns really
    are, and whether the environmental exemptions, or ``clarifications,''
    requested by the Department actually address those concerns.
        Thank you again Mr. Chairman for holding this hearing today, and I
    look forward to hearing the testimony of the witnesses.

                                   __________
         Statement of Hon. Joseph I. Lieberman, U.S. Senator from the
                              State of Connecticut

        I want to begin by thanking the chairman for his leadership, as
    always. Today we consider attempts to exempt the Department of Defense
    from or otherwise weaken DOD's compliance with a number of major
    Federal environmental laws. These include: (1) the Superfund law and
    the Resource Conservation and Recovery Act, both of which govern toxic
    waste management and cleanup; (2) the Wilderness Act of 1964, which
    concerns Bureau of Land Management control of public land, (3) the
    Endangered Species Act, and (4) the Clean Air Act.
        As a member of the Defense Authorization Conference Committee and a
    member of the Committee on Environment and Public Works, I feel I have
    a particular responsibility to make my position on this matter known,
    and to make it clear.
        I have two major objections to the blanket exemptions to
    environmental law that some are seeking to push through conference.
        The first objection is procedural.
        The changes being contemplated are substantial. They will have far-
    reaching effects on environmental and public health law. Therefore,
    they demand thorough scrutiny in the congressional committee that is
    responsible for such consideration. In large part, that is this
    Committee on Environment and Public Works.
        When profound changes to our environmental protection regime are at
    stake, we can't go through the legislative backdoor or side door. We
    owe it to the American people to go through the front door--and that
    means full consideration in this committee.
        I am grateful for today's hearing, but this should be only the
    beginning. It would be an inappropriate usurpation of our oversight
    responsibilities, not to mention a waste of this committee's
    considerable expertise, for the Defense Conference to rush the changes
    through.
        My second objection is substantive.
        There may very well be a need to carve out some DOD exceptions and
    exemptions to the environmental laws I've mentioned. Especially in the
    midst of the war on terrorism, we must be prepared to adjust any and
    all regulations that might interfere with our military preparedness.
        But we must not jump to the conclusion that these critical laws
    need to be busted up with a sledgehammer rather than carefully altered
    with a scalpel. That is what we would, in effect, be doing by allowing
    this matter to jump over the consideration of this committee right into
    the Defense Authorization Conference Committee.
        At the present time, we have no reason to believe that compliance
    with these laws would in any way hinder the readiness of our armed
    forces. In fact, as the General Accounting Office reported last month,
    the military's own readiness data does not show that environmental laws
    have significantly affected training readiness. The GAO also found that
    DOD's readiness reports show high levels of training readiness for most
    units. And in those few instances of when units reported lower training
    readiness, DOD officials rarely cited lack of adequate training ranges,
    areas or airspace as the cause.
        So the available evidence shows that strong environmental defense
    and strong national defense can coexist--and are, in fact, currently
    coexisting. Let's not misrepresent the facts and be forced into a false
    choice that we will later regret.
        The fact is, what we know about this problem so far suggests that
    it's not the fault of the environmental laws where and when DOD is
    having compliance or readiness problems; in most cases, the bulk of the
    burden--and the bulk of the blame--appears to fall on DOD's shoulders.
    That may or may not be the case when we finish studying this issue--as
    I said, there must be room for flexibility within these environmental
    laws--but it underlines the importance of thoughtful consideration, not
    a mad rush to undercut these critical protections, one by one.
        I am eager to consider such changes and, if and where appropriate,
    give DOD additional flexibility under the rules. But when we do, we'll
    do our editing with a slim red marker--not, as some would have it, with
    a match.
        Thank you.

                                   __________
            Statement of Hon. Barbara Boxer, U.S. Senator from the
                              State of California

        Mr. Chairman, I want to thank you for holding this hearing today.
        We have the finest military in the world. And the brave men and
    women of our military are the best fighting force in the world. That
    has been evident to all of the world since the tragic events of
    September 11.
        Over the last 10 months, we have called on our military to carry
    out a global fight against terrorism. That is an important fight. And
    the military has legitimate needs in carrying out that fight.
        But, it is not legitimate, in my view, to use the war against
    terrorism as an excuse to run roughshod over our environmental laws.
        The Department of Defense has asked Congress to give it blanket
    exemptions from six environmental laws that everybody else--in the
    public and private sector--is required to meet.
        Yet, I have seen nothing specific to substantiate DoD's claims that
    broad exemptions from some of our most important environmental laws are
    necessary.
        First, Mr. Chairman, most environmental laws already have an
    exemption for national security. For example, the Endangered Species
    Act allows for an exemption if ``the Secretary of Defense finds that
    such exemption is necessary for reasons of national security.''
        Second, in the cases that I'm familiar with, under existing
    environmental laws, the military has been allowed to continue with
    environmentally destructive activities as long as reasonable
    modifications are used to protect human health and the environment.
        Third, the military in general does not have a problem getting
    permits for their projects. To my knowledge, the National Marine
    Fisheries Services has never denied the military a permit under the
    Marine Mammal Protection Act. We do not need to weaken the law.
        A recent example in my State at Fort Irwin in southern California
    involves the Endangered Species Act. That base is home to numerous
    endangered desert species and includes some of the last remaining
    habitat for the desert tortoise. The Army engages in heavy-duty tank
    maneuvers across this landscape, despite the tortoise. However, it
    avoids certain areas and takes certain precautions to minimize the
    impact to the tortoise. That is an appropriate balance.
        We entrust the military to 25 million acres of public land. A lot
    of that land contains important habitat for fish, wildlife and birds,
    including approximately 300 threatened and endangered species. While I
    am sure the military would be pleased to have those lands designated a
    sacrifice zone for wildlife, we can't afford to. Too much of the rest
    of our landscape has been decimated. The military, like all Federal
    agencies that are entrusted with our precious and multi-purpose public
    lands, must do its part.
        Our military exists to protect the health and well-being of our
    homeland and our citizens. Yet ironically, the effect of DOD's far-
    reaching and audacious proposal is that its domestic activities would
    lead to the degradation of our homeland. And in the case of the air
    quality and hazardous waste exemptions that DOD is seeking, it would
    create a significant public menace.
        I can think of no reason that DOD should be allowed to leave behind
    munitions, ordnance, and toxic waste. Under this proposal, DOD would
    not be required to clean up live ordnance on or off the base! Why? How
    do long-term clean-up efforts affect military readiness? That is a
    direct threat to the civilian population.
        Similarly, I can think of no reason that the military should be
    given a blanket exemption from the Clean Air Act for 3 years. Why? Why
    3 years? And why every facility? We know that air pollution causes
    deaths. We know it causes asthma in children. If that isn't a threat to
    ``homeland security,'' I don't know what is.
        We better have very good reasons to allow increased air pollution,
    increased toxic waste, and increased wildlife destruction--but I have
    yet to see any.
        How will killing whales and songbirds increase military readiness?
    How will leaving PCBs, heavy metals, and other poisons in our own
    native soil increase military readiness? How will the release of
    poisons like sulfur dioxide into our air increase military readiness?
    Unless there are valid answers to those questions, there is no
    justification for this proposal.
        Admittedly, the military's needs are complex and varied. In some
    cases, it may be entirely appropriate that they be relieved temporarily
    of their environmental obligations so that the nation's security can be
    ensured. But that is a serious decision. And it should be done on a
    case-by-case basis. The current statutes provide for such case-by-case
    decisions. A blanket exception simply is not necessary.

                                   __________
            Statement of Hon. Jon S. Corzine, U.S. Senator from the
                              State of New Jersey

        Thank you, Mr. Chairman. I appreciate you holding this hearing on
    the Administration's proposals on military readiness.
        Mr. Chairman, like all of my colleagues I strongly support military
    readiness. The war on terrorism demands that our troops receive the
    best training possible, and be prepared for any contingency that they
    might encounter.
        But I also believe that we need to be careful about what we
    sacrifice in the name of the war on terrorism, whether it's civil
    rights or environmental protection.
        So I am here today to say that I oppose the Administration's
    proposals to provide blanket exemptions from our environmental laws to
    the Department of Defense. DOD has asserted that these exemptions are
    needed for readiness, but they simply have not made a compelling case.
    That's not just my opinion. That's what the GAO found when they looked
    at the issue in May of this year.
        I'm sure we will hear some damning anecdotes today about how
    environmental laws have caused problems. But to provide blanket
    exemptions on the basis of a few anecdotes is at best a knee-jerk
    reaction to what has not been shown to be a systemic problem.
    Furthermore, most environmental laws already have provisions that
    enable exemptions in cases of national security. In the case of the
    Endangered Species Act, the relevant provision has never been used,
    which to me strongly suggests that the ESA is not hindering DOD's
    ability to train and prepare our troops.
        Mr. Chairman, let me repeat: I strongly support DOD in the war on
    terrorism, as do my constituents. We all support doing what it takes to
    ensure that our troops our ready. But I can't support additional
    exemptions from environmental law when they have not been shown to be
    needed, and when current law already contains mechanisms to address
    national security concerns. Thank you.

                                   __________
       Statement of Hon. Ron Wyden, U.S. Senator from the State of Oregon

        Mr. Chairman, this committee has a bipartisan tradition that the
    Federal Government should be covered by the same environmental laws the
    private sector has to live under. There shouldn't be a double standard.
        When this committee last considered Superfund reform, I was
    prepared to offer an amendment along with Senator Voinovich to
    eliminate the double standard in the Superfund law of how it treats
    private sector Superfund sites and Federal facilities. This markup was
    suspended before our bipartisan amendment came up for a vote.
        The Wyden/Voinovich amendment was the same amendment that Senator
    Allard and I offered the year before and that was approved during the
    Committee markup of S. 8.
        This issue is about the health and safety of our citizens. If you
    live downwind or downstream from a contaminated site, it doesn't matter
    whether the owner of the site is a private company or the Federal
    Government. If your health is in jeopardy, you need the same level of
    protection no matter who the owner is. You need equal protection under
    the law.
        What the Department of Defense's proposal would do is create a
    double standard--the EPA would have one set of rules for the private
    sector and another for Federal agencies.
        This year, we've all been given a vivid reminder of the role the
    Department of Defense has in protecting our country. I appreciate the
    work of our military and of the men and women who are part of it. This
    hearing is not in any way about whether or not we support our armed
    forces. That's a given. It's about balancing our national security with
    our environmental security.
        I understand that the DOD's believes some of our environmental laws
    are endangering military readiness by limiting certain types of
    training. However, the GAO stated in a report published last month,
    that the military services had not been able to demonstrate any
    reduction in readiness due to laws such as the Endangered Species Act
    or the Migratory Bird Treaty Act.
        My concern about what some are seeking, is that it could invalidate
    hundreds of complex negotiations worked out between the citizens of
    this country and State and Federal agencies. The Department of
    Defense's proposal would permanently exempt DOD from having to work
    with EPA and State agencies on the clean-up of sites such as the
    Umatilla Chemical Depot in my home State of Oregon.
        That chemical weapons depot contains 11 percent of the nation's
    deadly nerve agents such as sarin and mustard gas. As you can imagine,
    the communities in this area have asked for, and rightly received, good
    faith assurances that every possible precaution would be taken to
    guarantee their safety. In fact, the Governor has spent most of the
    last 8 years negotiating a dependable emergency preparedness plan with
    the community, as noted in the Seattle Times of June 19:
        Kitzhaber and Oregon regulators are right to demand high standards
    for the disposal of the chemical weapons. Their efforts no doubt have
    made the process safer for the public.
        If these proposed amendments became law, DOD would have the power
    to come in and wave the agreements and procedures that have been
    reached in Umatilla County. That doesn't sound to me like the
    participatory democracy the Founders had in mind.
        Our citizens who live in the shadow polluting at contaminated
    Federal facilities should not have to wait years or decades to obtain
    the health and environmental protections our laws are supposed to
    provide. I urge all members of the Committee to support the bipartisan
    tradition on this Committee to provide citizens who live downwind or
    downstream from Federal facilities equal protection under our
    environmental laws.
                                   __________
         Statement of Adm. William J. Fallon, U.S. Navy, Vice-Chief of
                                Naval Operations

                                  INTRODUCTION

        Mr. Chairman and members of the committee, thank you for this
    opportunity to share my views regarding how the Readiness and Range
    Preservation Initiative (RRPI) will further military readiness and
    environmental conservation. I appreciate your attention to this vital
    and timely topic, which is of great importance to our security and our
    environment today and into the future.

                                   READINESS

        Our Navy provides combat-ready forces as powerful representatives
    of American sovereignty. In the weeks following September 11, naval
    forces were at the leading edge of our nation's efforts against
    terrorism. Navy and Marine Corps carrier strike aircraft, in concert
    with US Air Force bombers and tankers, flew hundreds of miles beyond
    the sea, destroying the enemy's ability to fight. Sustained from the
    sea, U.S. Marines, Navy SEALS, Seabees, and Special Operations Forces
    worked with local allies to free Afghanistan from the Taliban Regime
    and Al Qaeda terrorist network. Today, naval forces are deployed to
    multiple theaters of operations in the Global War On Terrorism and our
    mission is far from over.
        One thing we have learned--readiness is paramount. Before this
    nation sends the precious resource of our youth into harm's way, we owe
    it to them to provide every measure of safety possible--and that starts
    with realistic and comprehensive training. The extraordinary success
    achieved thus far in Operation ENDURING FREEDOM is a direct result of
    our commitment to train as we fight. We rely on the full use of our
    ranges and facilities to provide the combat-like experience that gives
    our forces a competitive advantage in war. But as we think about future
    operations, I am concerned about growing impediments to our ability to
    execute our highly successful training procedures.
        Realistic, demanding training has proven key to survival in combat
    time and again. For example, data from World Wars I and II indicates
    that aviators who survive their first five combat engagements are
    likely to survive the war. Similarly, realistic training greatly
    increases U.S. combat effectiveness. For example, the ratio of enemy
    aircraft shot down by U.S. aircraft in Vietnam improved from less than
    1-to-1 to 13-to-1 after the Navy established its Fighter Weapons
    School, popularly known as TOPGUN. More recent data shows aircrews who
    receive realistic training in the delivery of precision-guided
    munitions have twice the hit-to-miss ratio as those who do not receive
    such training.
        Similar training demands also exist at sea. New ultra-quiet diesel-
    electric submarines armed with deadly torpedoes and cruise missiles are
    proliferating widely. New technologies such as these could
    significantly threaten our fleet as we deploy around the world to
    assure access for joint forces, project power from the sea, and
    maintain open sea-lanes for trade.
        To successfully defend against such threats, our Sailors must train
    realistically with the latest technology, including next-generation
    passive and active sonars. Unfortunately, training and testing on our
    ranges is increasingly constrained by encroachment that reduces the
    number of training days, detracts from training realism, causes
    temporary or permanent loss of range access, decreases scheduling
    flexibility, and drives up costs.
        Encroachment issues have increased significantly over the past
    three decades. Training areas that were originally located in isolated
    areas are today surrounded by recreational areas, urban and suburban
    sprawl, and constrained by State and Federal environmental laws and
    regulations. Additionally, successful stewardship programs have
    increased the number of protected species on our ranges, which has
    resulted in less training flexibility. Finally, cumbersome permitting
    processes negatively impact our ability to train.

                BALANCING MILITARY READINESS AND THE ENVIRONMENT

        Military readiness and environmental conservation are both national
    imperatives to which our Navy is committed. They are, however,
    currently out of balance.
        Central to this imbalance is the ``precautionary principle'' (which
    is endorsed by some regulatory authorities), which holds that in the
    absence of evidence to the contrary, one must assume military training
    will adversely affect the environment. Although well intended,
    application of the ``precautionary principle'' results in trying to
    prove a negative, i.e. that training will cause no harm. Proving a
    negative is often difficult--if not impossible--and has led to the
    cancellation, curtailment, or adjustment of training to avoid even the
    possibility of disturbing endangered species and marine mammals. The
    loss of training that ensues detracts from combat readiness.

                        NAVY'S ENVIRONMENTAL STEWARDSHIP

        A desire to better balance readiness and environmental stewardship
    should not be taken as a lessening of our Navy's commitment to
    environmental protection. Our environmental budget request for FY-2003
    is more than $700 million. This funding supports environmental
    compliance and conservation, pollution prevention, environmental
    research, the development of new technologies, and environmental
    cleanup at Active and Reserve bases. Largely as a result of such
    stewardship, military lands present very favorable habitats for plants
    and wildlife, including many protected species.

                CHALLENGES POSED BY EXISTING ENVIRONMENTAL LAWS

        The Department of Defense and the Navy are leaders in environmental
    stewardship. Nevertheless, there are several environmental initiatives
    that could, with modification, fulfill their intent of environmental
    protection while simultaneously allowing military forces to sustain
    readiness. The RRPI addresses these issues and will help establish one
    fundamental to our future combat readiness, that is restoring the
    balance between readiness and conservation. Specifically, I ask for
    your help with addressing ambiguities in the Migratory Bird Treaty Act,
    Endangered Species Act, and Marine Mammal Protection Act.

    Migratory Bird Treaty Act
        Litigation under the Migratory Bird Treaty Act (MBTA) has resulted
    in restrictions on training. The MBTA was enacted more than 80 years
    ago to regulate commercial duck hunting and to conserve migratory
    birds. Since a U.S. Circuit Court of Appeals ruling in 2000, the MBTA
    has been viewed by some as a vehicle for regulating a wide range of
    activities that affect nearly every species of bird. Relying on this
    decision, third parties have filed suit challenging the unintentional
    taking (killing or harming) of migratory birds incidental to military
    training.
        Adoption of RRPI would allow for the continuation of training
    activities vital to national security while requiring that the military
    services take practical steps to prevent injuries to birds in the
    course of training. This would return the MBTA to a responsible
    posture, as it was interpreted and applied for more than 80 years.

    Endangered Species Act
        Designating military training ranges as critical habitats under the
    Endangered Species Act (ESA) can undermine the purpose for which they
    were set aside. Some Federal courts have held that critical habitats
    are intended for species recovery. Under the ESA, controlling or action
    agencies are required to ensure that their actions do not destroy or
    adversely modify designated habitats. Hence designation as critical
    habitats could limit land uses that would diminish the value of that
    land for species recovery--including military training.
        DoD is already obligated under the Sikes Act to develop Integrated
    Natural Resource Management Plans (INRMP) for lands under military
    control. INRMPs address management of natural resources in the context
    of the missions for which the lands were placed under control of the
    military services. INRMPs are prepared in cooperation with the U.S.
    Fish and Wildlife Service (USFWS) and State agencies, and these
    agencies recommend ways for DoD installations to better provide for
    species conservation and recovery.
        The Navy has worked hard to ensure its training successfully
    coexists with the protection of endangered species. For example, Naval
    Amphibious Base (NAB) Coronado has been home to Navy frogmen since
    their inception in World War II. All of their basic skills from diving
    to hydrographic reconnaissance have been taught on its beaches and in
    the bays surrounding the base. To protect the environment, the Navy has
    spent about $675,000 per year since 1996 on conservation and management
    programs for the Western Snowy Plover and Least Tern, endangered birds
    that nest in that area. That effort has successfully increased the
    number of Least Tern nests by 600 percent and the number of Western
    Snowy Plover nests by almost 300 percent.
        Ironically, this successful stewardship effort resulted in a loss
    of training area. Due to encroachment, including increased population
    of the Western Snowy Plover and Least Tern, NAB Coronado lost the use
    of an estimated 80 percent of its training beaches. In response, the
    Navy had to substantially alter training activities or conduct them
    elsewhere, disrupting training cycles, increasing costs, and adding to
    the time Sailors spend away from their families.
        Adopting the RRPI would mitigate such situations in the future, by
    balancing training needs with the protection of threatened or
    endangered species. Changing the law to clearly establish that an
    approved INRMP plan provides sufficient species protection--rather than
    designating more and more land as critical habitats--would retain
    flexibility for the services in places where training needs and
    endangered species protection must coexist.

    Marine Mammal Protection Act
        Access for military training is an issue at sea as well as ashore.
    The Marine Mammal Protection Act has curtailed this access. Its
    definition of ``harassment'' has been a source of confusion since it
    was included in 1994 amendments to the statute. The statute defines
    ``harassment'' in terms of ``annoyance'' or the ``potential to
    disturb''--standards that are difficult to interpret. The definition of
    harassment and its application are pivotal because authorization must
    be obtained in advance of any activity that would constitute
    harassment.
        Vagaries in the definition of harassment make it very difficult for
    Navy exercise planners and scientists to determine if a permit
    (technically known as an authorization) is required before commencing
    mission--essential training or testing. It also makes it difficult to
    judge how much mitigation is needed--and therefore how much training
    realism must be lost--to reduce the impact of any harassment or other
    type of taking to a negligible level. The Navy is not alone in its
    opinion that lack of clarity in the MMPA has led to restrictive and
    inconsistent interpretations of the definition of harassment. In
    testimony before Congress, the Assistant Administrator for the National
    Marine Fisheries Service (NMFS) stated that, ``NMFS has experienced
    difficulties with respect to implementation and interpretation of the
    current definition of harassment.''
        Assuming a permit is required for training or testing, the
    application process requires at least 4 months--and sometimes years--to
    complete, and then the application is effective for only 1 year.
    Because Navy operations are tied to world events, exercise planning and
    testing is often done on short notice. This sometimes precludes the
    identification of training and testing platforms and locations far
    enough in advance to factor in the lengthy permit application process
    required by the MMPA.
        Examples of this dilemma can be seen in Office of Naval Research
    (ONR) tests designed to measure sound in the water as it relates to
    improving the Navy's capability to detect enemy submarines. Over the
    past several years, ONR has had to curtail or stop elements of various
    tests due to challenges linked to the MMPA's definition of harassment
    and its lengthy permitting requirements. In May 2000, for example,
    disagreement with the regulatory community ensued over ONR's analysis
    of the impact of its testing on marine mammals. This led ONR in a
    subsequent test to spend $800,000 for mitigation measures, to avoid
    even the possibility of disturbing marine mammals.
        More recently, key training for the USS CARL VINSON Battle Group
    was canceled because a permit could not be obtained in an expeditious
    manner to ``potentially disturb'' seals when target drones flew over
    them. This resulted in the deployment of three ships of the Battle
    Group to Operation ENDURING FREEDOM without the benefit of anti-ship
    cruise missile defensive training.
        Amending the definition of ``harassment,'' as proposed by the
    Administration, would eliminate application of the MMPA to benign naval
    activities that cause only minor changes in marine mammal behavior,
    eliminate the need for mitigation that undermines critical training
    involving only benign effects, and increase training flexibility by
    allowing greater use of acoustical sources. The Navy would still be
    required under the proposed definition of ``harassment'' to apply for
    permits and adopt mitigation for activities having a significant
    biological effect on marine mammals.

                                    SUMMARY

        We face an enemy today who is determined to destroy our way of
    life. The President has told us to ``be ready'' to face this threat. To
    fulfill this directive, we must conduct comprehensive combat training--
    arming our Sailors with experience. This requires full use of our
    ranges and operating areas. In return, the Navy has proven itself an
    able steward of our natural resources, and we will continue to promote
    the health of lands entrusted to our care.
        I thank the committee for your continued strong support of our Navy
    and I ask for your full consideration of passing the RRPI legislation.
    It will help the services sustain military readiness in this time of
    war and into the future, when we will face a growing array of deadly
    threats. It will also support our on-going efforts at environmental
    conservation. Achieving the best balance of these national imperatives
    is in the interests of all Americans, and your Navy is committed to
    achieving that goal.
                                     ______

         Responses of Adm. William Fallon to Additional Questions from
                                 Senator Smith

        Question 1. Admiral, some have taken the position that the MMPA is
    not within our jurisdiction. I pointed out during the hearing that the
    MIMPA is within our jurisdiction to the extent that the issue involves
    endangered marine mammals, which this legislation clearly does involve.
    Your written testimony goes into some detail on the Navy's position on
    this issue, but I would like to know if you have any additional
    comments to make for the record on the subject of the Department's
    proposed clarification of the M1VIPA.
        Response. The definition of ``harassment'' in the MMPA is important
    to the Navy because it controls which Naval activities require a letter
    of authorization or an incidental harassment authorization (essentially
    two forms of permit) from National Marine Fisheries Service (NMFS) or
    Fish and Wildlife Service (FWS) (for a limited number of species) under
    the MMPA. The application process is lengthy and, in the end, usually
    results in excessive restrictions on training.
        The MMPA's definition of ``harassment'' has been a source of
    confusion since the definition was included in 1994 amendments to the
    statute. The statute defines ``harassment'' in terms of ``annoyance''
    or the ``potential to disturb,'' vague standards that have been applied
    inconsistently and are difficult to interpret. NMFS attempted to solve
    this problem through a regulatory interpretation of ``harassment,'' but
    that interpretation is itself being challenged in court as contrary to
    the statute -- emphasizing the need for Congress to definitively settle
    the question through legislation. Without such further clarification of
    the term, however, NIMFS has interpreted a broad array of reactions as
    evidencing harassment, noting, for example, that ``[a]ny sound that is
    detectable is (at least in theory) capable of eliciting a disturbance
    reaction by a marine mammal.'' Also, ``[an incidental harassment take
    is presumed to occur when marine mammals . . . react to the generated
    sounds or to visual cues.'' An interpretation this broad could lead to
    the permitting of all naval vessels simply leaving harbor.
        More recently, as noted above, NMFS has attempted to clarify the
    definition of ``harassment'' by regulation, but in addition to judicial
    challenge by environmental groups the Marine Mammal Commission has
    challenged it on these efforts, noting in the case of one Navy-proposed
    action that ``[a]ny behavioral reaction would technically constitute
    harassment.''
        Recognizing that the definition of harassment was problematic, in
    2000 the Navy, NMFS, FWS, and the Marine Mammal Commission developed a
    definition of ``harassment'' which all four agencies could accept. The
    Office of Management and Budget during the Clinton administration
    approved this language and the Department of Commerce has submitted it
    as part of its effort to reauthorize the MMPA in 2001. The
    reauthorization of the MMPA has been delayed by a variety of other
    complex issues, however, and the Administration believes that
    clarifying the application of this provision to military readiness
    activities is sufficiently urgent to require an independent legislative
    initiative.
        DoD's proposal reflects the agreement reached during the Clinton
    administration and adopted by the Bush administration, except that
    DOD's new definition would apply only to military readiness activities.
    The definition clarifies that ``harassment'' applies only to injury or
    significant potential of injury, disturbance or likely disturbance of
    natural, behavior patterns to the point of abandonment or significant
    alteration, and to disturbance directed at a specific animal. DoD
    believes that this standard would ensure protection of marine mammals,
    but also provide the military with sufficient flexibility to conduct
    training and other operations essential to national security. DoD will
    remain subject to the MMPA for injury and behavioral changes that
    affect important biological functions.
        Amending the definition of ``harassment,'' as proposed by DoD,
    would:

          Focus the attention of regulators on activities that are
    of genuine significance to the welfare of marine mammals, rather than
    dissipating regulatory attention among a host of activities without
    biological significance;
          eliminate application of the MMPA to benign naval
    activities that cause only minor changes in marine mammal behavior--
    narrowing the number of takes by harassment;
          clarify the distinction between activities that may
    produce biologically significant effects and those that have only
    benign effects, reducing the need for mitigation that could undermine
    critical training.
          increase training flexibility by allowing greater use of
    acoustical sources, without immunizing the Navy from regulation of
    activities that lead to whale strandings; and
          reduce impediments to deployment of mission-essential
    systems.

        DOD's proposed amendment to the definition of harassment is
    consistent with the position advanced by the National Research Council
    (NRC) in a report to Congress in March 2000. According to the NRC, if
    the current definition of Level B harassment (detectable changes in
    behavior) were applied to commercial shipping and recreational boating
    as strenuously as it is applied to scientific and naval activities, the
    result would be crippling regulation of nearly every motorized vessel
    operating in U.S. waters. NRC advocates instead a definition of
    harassment that focuses on significant adverse biological effects in
    marine mammal stocks.
        DoD believes its proposed amendment to the MMPA will ensure
    protection of marine mammals while allowing sufficient flexibility to
    conduct training and other operations essential to national security.
    Left unchanged, the current definition of harassment will continue to
    be the subject of litigation brought by special interest groups. Only
    this past month, for example, a NMFS-issued harassment permit
    authorizing Navy to deploy an important asset was questioned by a
    Federal court over the definition of harassment.
    Site-Specific Situations
        Application of the current definition of ``harassment'' has
    impacted Navy training and other operations essential to military
    readiness. Navy operations are expeditionary in nature, which means
    world events often require planning exercises on short notice. This
    challenge is especially acute for the Atlantic Fleet, which over the
    past 2 years has often had to find alternate training sites for
    Vieques. To date, the operational Navy has been able to avoid having to
    apply for a take permit only by altering its training and adopting
    mitigation measures that eliminate even the possibility that a training
    event will disturb a marine mammal.
        One example of such adjustments can be seen in the Office of Naval
    Research (ONR)-sponsored Littoral Warfare Advanced Development (LWAD)
    program for testing various, and often unrelated, methods for measuring
    sound in the water as it relates to improving the U.S. Navy's anti-
    submarine warfare capabilities. Over the past several years, ONR has
    had to curtail or stop elements of the program due to IVIIVIPA
    permitting requirements. In May 2000, an LWAD test was severely
    curtailed because of the lack of clarity in the MMPA. NIIVIFS rejected
    animal resource data that ONR had obtained from NMFS's own sources,
    disagreed over ONIR's analysis of impacts on marine mammals, and
    refused to provide an alternative impacts analysis methodology.
    Experiences like this led ONR, in a subsequent test, to spend $800,000
    for mitigation to avoid even the possibility of disturbing marine
    mammals.

        Question 2. If past military readiness reports have not shown
    declines in unit readiness due to training deficiencies, as some read
    the recent GAO report to say, then why is there any urgency to act now?
    Doesn't the GAO Report's conclusion mean that DoD's training
    capabilities are presently unaffected by encroachment?
        Response. The fact that DOD has yet to precisely quantify the
    impacts of environmental encroachment on its training capabilities and
    readiness does not mean that readiness has not been affected. DOD is in
    fact attempting to improve quantification of encroachment impacts, and
    this effort is in the early stage of development. The military, because
    of its commitment to the environment, has for years attempted to work
    around encroachment impediments. Over time, these impediments to
    training have grown to the point where DOD has recognized that
    readiness is now threatened. Accordingly, DOD has attempted to act
    proactively to avoid a readiness disaster by bringing this matter to
    the attention of Congress before the problem becomes critical.
                                     ______

         Responses of Adm. William Fallon to Additional Questions from
                                 Senator Warner

        Question 1. On provision of the Administration's Readiness and
    Range Preservation Initiative (RRPI) would authorize the Department of
    Defense to incidentally ``take'' migratory birds under the Migratory
    Bird Treaty Act without a permit. Is it fair to say that absent
    legislative relief, the military departments will remain vulnerable
    under this act to lawsuits and permanent injunctions for training
    activities, as has occurred at the Navy's Pacific bombing range,
    Farallon de Medinilla (FDM)?
        Response. Yes. All military departments would be vulnerable to
    lawsuits and injunctions of training activities. Migratory birds are
    ubiquitous on all DOD lands. Anywhere a range exists there is always
    the potential for the incidental ``take'' of a migratory bird. This
    would potentially subject DOD to numerous litigation risks that could
    result in injunctions as occurred at FDM. Potential impacts to DOD
    include: reduced training for mission readiness and resultant potential
    readiness declines, increased costs for litigation expenses, increased
    staff time devoted to litigation, etc. The Navy does not intentionally
    ``take'' migratory birds. We are good stewards of the land, and sea
    surrounding our installations. In carrying out our Title 10
    responsibilities for National Defense we also ensure that we reduce as
    much as possible any incidental takes of migratory birds. Moreover,
    other Federal agencies would encounter the same risk of injunction to
    their activities as well.

        Question 2. What would be the readiness impact if training
    operations at FDM were permanently shut down?
        Response. Because of the events of September 11, 2001, we have an
    increased number of units required for combat operations on very short
    notice. With an increasing surge of short notice deployments, Farallon
    de Medinilla (FDM) becomes a necessity for training and readiness in
    the war against terrorism. We rely on FDM for qualification and range
    practice for these short notice units. The value of the range is
    significantly enhanced because it is the only available training range
    in the Western Pacific under U.S. control. Without FDM, and with all
    other ranges in the Pacific theater under foreign control, we would be
    at the mercy of host governments for our readiness and training. Use of
    foreign ranges by transiting units is inefficient and can inhibit
    mission readiness because of the time required for advance notice to
    and prior coordination with host governments. Foreign ranges may not be
    available during the brief and often unforeseeable windows of time when
    Seventh Fleet units may need to use them.
        Additionally, FDM is the only target range in the Pacific for the
    delivery of live Precision Guided Weapons and high-speed anti-radiation
    missiles (HARM) for expenditure training. The War on Terrorism has been
    heavily dependent on ``smart'' munitions (i.e., laser and infra-red
    guided missiles and bombs), and their use requires training. Closing
    FDM will therefore mean that units transiting the U.S. Seventh Fleet
    area of responsibility may not have adequate range training time before
    they are required to engage in combat operations in support of
    Operation Enduring Freedom.
        Under the Administration's Migratory Bird Treaty Act proposal, the
    Department of Defense would be required to reduce the number of takings
    to the maximum extent practicable.

        Question 3. Would this requirement be inconsistent with the current
    practices of the military departments?
        Response. The Navy is a good steward of our nation's lands and
    waters. On Farillon de Medinilla (FDM) for instance, the Navy has
    practices in place that mitigate the ``taking'' of migratory birds.
    These practices include: limiting the quantity of ordnance targeted on
    FDM, limiting the primary target area to the central and southern
    portion of FDM, environmental monitoring, and funding mitigation
    measures on other Mariana islands.
        During the preparation of the Final Environmental Impact Statement
    (FEIS) for Military Training in the Marianas, the types and quantity of
    ordnance used on FDM was specified, monitored, and tracked. By limiting
    the type and quantity of ordnance delivered to FDM, disturbance to
    seabird populations is considerably reduced.
        Based on recommendations from U.S. Fish and Wildlife Service, the
    target areas on FDM have been limited to the central and southern
    portions of the island. By designating the target areas, the most
    sensitive seabird population areas on the northern tip and eastern
    plateau edge are excluded from weapons impact. Maps provided in the
    FEIS and the Navy's Marianas Training Handbook specify the target
    areas. Specific targets have been placed within the designated area to
    further focus the delivery of ordnance away from the seabird
    population. The recommendation is implemented through notices to all
    users of the bombing range and through local regulations concerning use
    of the range. Use of ordnance, live or inert, is not authorized on the
    northern 400M of FDM, on the narrow land bridge near the center part of
    the island, on the eastern cliff face, or in the surrounding waters.
    The use of live cluster weapons, scatterable munitions, fuel air
    explosions, incendiaries, or bombs greater than 2,000 pounds is not
    authorized. A low and slow clearing pass over the range is required
    prior to releasing ordnance. Ships without aircraft support must
    circumnavigate the island prior to firing evolution. Users must submit
    an after-action report.
        A Navy biologist, in cooperation with Commonwealth of Northern
    Marianas (CNMI) Fish and Game Division, conducts monthly aerial
    (helicopter) bird surveys on FDM to understand the population dynamics
    of the seabirds and to assess long-term effect of military use of FDM.
        Based on U.S. Fish and Wildlife Service (USFWS) recommendation, the
    Navy funds mitigation projects on other Mariana Islands. These projects
    have included improvement of habitat of the Micronesian Megapode on the
    other northern Marianas Islands. This mitigation project also benefits
    migratory birds by improving the general habitat for all the birds. The
    Navy funded a $100,000 per year project to reduce feral goat
    populations on Sarigan Island. The feral goats are the most significant
    threat to habitat for the Megapode and other species. Based on the
    success of the Sarigan project, Navy is also removing goats from
    Anatahan Island.

        Question 4. The Endangered Species Act provides for a national
    security exemption. Upon signing the Endangered Species Act into law,
    President Carter stated that the Department of Defense should rely on
    this exemption `` . . . only in grave circumstances posing a clear and
    immediate threat to national security.'' Has this exemption ever been
    used? If so, how and if not why? What are the difficulties associated
    with the use of such an exemption?
        Response. No, the exemption has not been used. There is an
    exemption under the Endangered Species Act (ESA) if the Secretary of
    Defense (SECDEF) finds it is necessary for reasons of national
    security. That exemption, however, is better used to address
    emergencies or unusual situations that are of relatively short
    duration. The need to train for combat, to plan and execute military
    readiness activities, is a 7-day a week, 52 weeks a year, requirement.
    The Secretary of Defense's ability to waive environmental requirements
    in case of war or national emergency cannot ensure that our young men
    and women are ready for the first day of combat, which is what
    readiness is all about.
        Procedurally, there are numerous difficulties to implementing the
    national security exemption under Section 7 of the Endangered Species
    Act. First, this is a provision that requires the Endangered Species
    Committee to grant an exemption for agency action if SECDEF finds
    ``that such an exemption is necessary for reasons of national
    security.'' The Department of Interior (DOI) believes that this
    exemption requires a 9-month administrative process. This exemption
    cannot be used until after consultations with DOI or National Marine
    Fisheries Service have been completed, and only when the regulatory
    agency has asserted that the military's training activity will
    jeopardize the continued existence of threatened or endangered species.
    According to DOI, this exemption is not available where the regulatory
    agency has endorsed the military's training activity albeit subject to
    limitations.
        Critical habitat designations impose rigid limitations on military
    use of bases, denying commanders the flexibility to manage these lands
    for the benefit of both readiness and endangered species. The
    Administration's proposal would preclude the designation of critical
    habitat under the Endangered Species Act on Department of Defense
    installations where an Integrated Natural Resource Management Plan
    (INRMP) has been completed, consistent with the Sikes Act.

        Question 5. How would this management approach benefit both
    readiness and endangered species?
        Response. Integrated Natural Resource Management Plans (INRMP)
    provide a process that will ensure the Navy meets its stewardship and
    regulatory responsibilities not only for endangered species but also
    for other areas of natural resources. The INRMP also ensures that the
    Navy can meet its military readiness and national security
    responsibilities under Title 10 by ensuring no reduction of military
    mission capability. This process provides for a well thought out
    balancing process that ensures endangered species are protected and
    that projects are developed to further natural resources stewardship in
    general and endangered species protection in specific. The Navy will
    continue to consult under Section 7 of the Endangered Species Act, and
    in no way does the INRMP process lessen protection afforded endangered
    and threatened species. The Navy has consistently shown through our
    stewardship programs that we not only protect natural resources but
    also contribute significantly to the increase in population numbers of
    endangered and threatened species on our lands. For instance, at Naval
    Amphibious Base Coronado, Navy stewardship has resulted in incredible
    increases in the populations of both the California Least Tern (600
    percent) and the Western Snowy Plover (300 percent), and on San
    Clemente Island, the Navy's captive breeding program has seen
    endangered Loggerhead Shrike populations increase from 13 to 187 birds.
    The systematic INRMP process uses staff time and resources of both the
    military and U.S. Fish and Wildlife Service more efficiently, avoiding
    the administrative burden that the consultative procedure would require
    under critical habitat procedures for endangered species. In fact, DOD
    encourages other Federal agencies to explore processes similar to
    INRMPs; the benefits of this in the long run will reduce the incredible
    nationwide burden of administrative paperwork for critical habitat
    consultations, which would benefit the nation's overall endangered
    species recovery efforts. Using a process approach, the Navy will
    provide long-term cost effective programs that meet stewardship and
    readiness missions. This will bring balance to both resulting in long-
    term sustainability of natural resources and critical mission readiness
    for our men and women in uniform.
        Some critics have suggested that substituting INRMPS for critical
    habitat designation would be contrary to the purpose and intent of the
    Endangered Specific Act. It is my belief that there is a need for a
    balanced approach, which allows for realistic training, and without
    such a balance we run the risk of endangering our men and women in
    uniform.

        Question 6. If this legislative proposal is not successful, what
    testing and training ranges would be impacted by future critical
    habitat designations and what would be the overall military readiness
    impact?
        Response. Every single DOD testing and training range would
    potentially be impacted by increasing critical habitat designations.
    The U.S. Fish and Wildlife Service (USFWS) is under court order to
    accelerate designation of critical habitat. For instance, on July 2,
    2002, U.S. District Court for Southern California ruled that USFWS must
    reconsider designating critical habitat for eight plant species. Over
    time additional species potentially will be listed and increasing areas
    will be designated as critical habitat. Much of this is driven by
    current and potential future litigation over what is listed and
    critical habitat designations that the USFWS faces (such as the
    California Native Plant Society and the Center for Biological Diversity
    lawsuit on the eight plants in Southern California) Litigation is
    driving listing and critical habitat designations for the USFWS, for
    instance, in Hawaii. Navy ranges potentially impacted include (all
    currently have endangered and threatened species present): Naval
    Weapons Station Seal Beach, Detachment Fallbrook, Pacific Missile
    Firing Range, San Clemente Island, Marianas (FDM, Tinian) and Guam,
    Naval Air Station Fallon, NAS Lemoore, China Lake, Point Mugu Range
    complex and Vieques.
        Listed below are several instances of where the Navy has responded
    to critical habitat designations:
        Naval Weapons Station Seal Beach, CA, Detachment Fallbrook.
    Fallbrook's mission is to provide quality and responsive logistics,
    technical, and weapons support to the U.S. Pacific Fleet, U.S. Marine
    Corps, and other military units. It serves as a vital component for our
    nation's defense by storing and providing munitions to Navy and Marine
    Corps forces during the critical initial phases of a conflict.
    Falibrook consists of 8,850 acres located in the southern foothills of
    the Santa Ana Mountains in northern San Diego County.
        a. Critical habitat was designated for the coastal California
    gnatcatcher found at the Naval Weapons Station Seal Beach, Detachment
    Fallbrook. Navy comments were provided to the proposal to designate
    critical habitat at Fallbrook, which asserted that designation was
    redundant and unwarranted. Despite the Navy's proactive resource
    management and coordination of an INRMP with USFWS and California,
    final critical habitat designation in October 2000 included all of
    Fallbrook, with minor exception for certain already-developed areas.
    The critical habitat included not only unoccupied habitat areas, but
    also areas that are unsuitable as a habitat for the California
    gnatcatcher. A primary concern is military and public safety if
    critical habitat requirements adversely affect the efficacy of clear
    zones and fire safety breaks on the installation. Designating the
    entire installation produces restrictions that may degrade Fallbrook's
    overall ability to perform its military mission and to adequately
    comply with strict explosive safety standards.
        b. Fallbrook also had to contend with the Final Designation of
    Critical Habitat for the Arroyo Southwestern Toad in February 2001.
    Navy comments were provided to the proposal to designate approximately
    15 percent of Fallbrook as critical habitat for the toad, in particular
    emphasizing the problematic designation of multiple and overlapping
    critical habitats at a single facility and the resulting conflicting
    habitat management requirements. Proposed projects and ongoing
    maintenance requirements exist in areas of Fallbrook that do not
    contain constituent elements of critical habitat for the toad, but were
    included in critical habitat designation. Critical habitat designation
    will pose potential restrictions on fire prevention and containment
    measures such as fuel breaks and fire access roads will pose
    significant threats to the storage of munitions.
        Both critical habitat designations lead to confusion for natural
    resources management, particularly in regard to the joint management of
    other listed species (e.g., Stephens' kangaroo rat), and conflicts
    between the two species critical habitat management requirements. The
    Integrated Natural Resource Management Plan (INRMP) process provides a
    multi-species approach to natural resources management, and is,
    therefore, the better mechanism for minimizing and possibly avoiding
    these management challenges.
        Pacific Missile Range Facility, Hawaii. The Pacific Missile Range
    Facility (PMRF) on the island of Kauai in Hawaii is the recognized
    leader in combining training and testing. PMRF supports a wide variety
    of training exercises and developmental tests involving space, air,
    surface, and sub-surface units. PMRF has the ability to provide
    simultaneous real-time tracking information on participants, targets,
    and weapons on its 42,000 square miles of sea and airspace. PMRF
    provides a fully instrumented ocean training range, where aircraft,
    surface ships and submarines may train one against the other, or in
    collaboration, to deal with a variety of potential incoming adverse
    threats.
        In May 2002, USFWS announced the availability of the draft economic
    analysis for the proposed designations of critical habitat for plant
    species from the islands of Kauai and Nihau, Hawaii, and reopening of
    the comment period for the proposal to determine the prudence of
    designating critical habitat for these plants. Navy comments were
    submitted on the proposed designation.
        Navy stewardship efforts: The Navy coordinated with USFWS for
    preparation of a biological assessment for the 1998 PMRF Enhanced
    Capability Environmental Impact Statement (EIS)
        Impact: Designation of critical habitat over lands used by PMRF
    serves as an unnecessary restraint and limitation on the installation's
    flexibility, adversely affecting its ability to perform its national
    defense mission and in planning for future mission needs. Particular
    impacts associated with PMRF facilities at Koke'e and Makaha Ridge were
    emphasized in comments submitted by CINCPACFLT to USFWS.
        Marianas and Guam Range Complex. USFWS Action: In May 2002, in
    response to a lawsuit brought against USFWS, an agreement was reached
    between environmental groups and USFWS to designate and protect
    critical habitat areas for six endangered species on Guam. The
    agreement calls for designation of critical habitat by June 1, 2003.
    Species are the Marianas fruit bat, little Marianas fruit bat, Marianas
    crow, Guam Micronesian kingfisher, Guam broadbill, and Guam bridled
    white-eye.
        Navy Stewardship History: The Guam Overlay National Wildlife Refuge
    was originally created on Navy land in lieu of a critical habitat
    designation for the protection of the endangered Marianas moorhen, as
    well as seven other endangered species. This refuge was established via
    a cooperative agreement between the Navy and the USFWS. Establishment
    of the refuge on Navy lands represents Navy's strong commitment for a
    coordinated species protection program.
        Impact: All of the Navy's training areas in the Marianas have
    endangered species located on them, but none have yet been designated
    critical habitat. The agreement could lead to critical habitat.
        The INRMPs would only be used as a substitute for designation of
    critical habitat in those instances in which the plans addressed
    endangered or threatened species and their habitats.

        Question 7. What would be the role of the Fish and Wildlife Service
    regarding the preparation and implementation of these plans?
        Response. Fish and Wildlife Service (USFWS) is a partner in the
    preparation and implementation of Integrated Natural Resource
    Management Plans (INRMP) . Section 2904 of the Sikes Act Improvement
    Act states that the INRMP shall reflect ``mutual agreement of the U.S.
    Fish and Wildlife Service and the States concerning conservation,
    protection, and management of fish and wildlife resources.'' INRMPs are
    prepared ``in cooperation with'' the USFWS and appropriate State fish
    and wildlife agencies. The entire INRMP is shared with these agencies
    for review. The Department of Defense (DOD) also takes advantage of the
    expertise of the USFWS and State fish and wildlife agencies to provide
    expertise in the task of preparing the INRMPs. DOD works closely with
    USFWS in working groups all the way from the local level to Washington
    D.C. USFWS regional offices endorse the INRMPs and field staff from the
    USFWS work closely with military biologists for recovery efforts on
    military installations. DOD will consult with USFWS on INRMP projects
    requiring Section 7 consultations under the Endangered Species Act.
        Readiness and Range Preservation Initiative. During the July 9,
    2002, hearing before the Environment and Public Works Committee,
    reference was made to the General Accounting Office (GAO) report on
    Military Training: DOD Lacks a Comprehensive Plan to Manage
    Encroachment on Training Ranges, June 2002 (GAO-02-614) . That report
    stated: ``Despite the loss of some capabilities, service readiness data
    do not indicate the extent to which encroachment has significantly
    affected reported training readiness.'' ``At the same time, the
    services face difficulties in fully assessing the impact of training
    ranges on readiness because they have not fully defined their training
    range requirements and lack information on the training resources
    available to support those requirements.''

        Question 8. How would you address this GAO statement? What is the
    basis for concluding that environmental encroachment is a problem that
    warrants legislative relief, particularly in relation to the Migratory
    Bird Treaty Act and the Endangered Species Act?
        Response. First, the fact that DOD has yet to quantify the impacts
    of environmental encroachment on readiness does not mean that readiness
    has not been affected. The first sentence in the Conclusion of the GAO
    report (Page 30) states: ``DoD and the military services have lost
    training range capabilities and can be expected to experience increased
    losses in the future absent efforts to mitigate encroachment.'' Also,
    Director Holman (GAO) stated in his oral testimony, ``[E]ach
    installation we visited indicated that they had lost capabilities in
    terms of times ranges were available for the types of training that
    could be conducted . . . Again, the potential problem with workarounds
    is that they lack--can lack realism; can lead to the use of practice
    and tactics that are contrary to what would be employed in combat.''
    DOD is in fact attempting to quantify encroachment impacts. This
    effort, however, is in its infancy. The military, because of its
    commitment to the environment, has for years attempted to work around
    encroachment impediments. Over time, these impediments to training have
    grown to the point where DOD has recognized that readiness is
    threatened. Accordingly, DOD has attempted to act proactively to avoid
    a readiness disaster by bringing this matter to the attention of
    Congress before the problem becomes critical.
        Military installations have increasingly evolved from rural and
    isolated locations to areas surrounded by urban sprawl. This has
    resulted in DoD lands becoming ``islands of biodiversity in a sea of
    development.'' Wildlife such as migratory birds and endangered species
    increasingly find military ranges and installations to be safe harbors
    in the midst of the loss of other habitats outside military
    installation boundaries. The military has been forced to shoulder
    increased stewardship responsibilities as other habitat disappears. The
    USFWS in the face of increasing litigation (GAO 02-581 of June 2002)
    has become increasingly dependent on military lands for meeting
    endangered species recovery goals for certain species of wildlife and
    plants. The USFWS mission is focused only on species preservations. The
    military on the other hand, has the more complicated duty of balancing
    Title 10 responsibilities (readiness) with environmental stewardship.
    As increasing numbers of species have been listed from the first
    charismatic mega fauna to the tiniest species such as fairy shrimp, the
    military confronts increased numbers of species currently listed and
    proposed for listing as well as significant increases in critical
    habitat designations that are often driven by court interpretations of
    our environmental laws. Such legal interpretations create challenges
    for military commanders required to ensure we meet our nation's
    national security goals as required by Title 10, as well as meeting
    their stewardship responsibilities. The few remaining proposals in the
    RRPI will aid our commanders in achieving balance which will ensure
    that America's fighting forces are fully prepared to meet current and
    future challenges.
                                   __________
        Statement of Gen. John M. Keane, Vice Chief of Staff, U.S. Army

        Mr. Chairman and members of the committee. Thank you for this
    opportunity to present the Army's perspective on the Readiness and
    Range Preservation Initiative (RRPI).
        The exceptional performance of our units in Afghanistan clearly
    indicates that The Army is fully prepared to meet our full-spectrum
    obligation to fight and win the Nation's wars, whenever and wherever
    the Nation calls. Our success to date, and our ultimate victory in this
    war and future wars, is dependant upon highly trained Soldiers and
    units who are proficient in the employment of their equipment. The only
    way to achieve the requisite level of individual and collective
    competency is through repetitive, challenging, and realistic live-fire
    and maneuver training--training that melds soldiers and equipment into
    a combat ready unit.
        Maneuver land and live-fire ranges are an indispensable element to
    this process. The Army's ranges, as well as those of our sister
    Services, provide opportunities to develop and improve our Soldiers'
    proficiency, competence, and confidence in the use of sophisticated
    weapons systems. We must retain those resources that allow our forces
    to maintain the level of readiness that the American people have come
    to expect, and deserve--and without which we will not be adequately
    prepared to defend America. For this reason, the Army has committed
    significant resources to the preservation of its lands and, in the
    process, amassed a record of good stewardship of the environment.
        Despite The Army's commitment to preservation, externally driven
    factors, such as urban sprawl, management of threatened and endangered
    species, and the expanding application of environmental laws to live-
    fire activities have the ability to constrain and introduce an
    unacceptable degree of artificiality to military training. In an effort
    to curb this trend, the Army has worked within the Administration to
    develop a set of proposals that clarify the application of several
    environmental laws to military testing and training.
        The Administration would like to work together with Congress to
    improve the processes by which we manage environmental issues on Army
    and other DoD lands to ensure both realistic training for our Soldiers
    and protection of the land and resources. We will continue to work with
    the other Federal agencies to ensure that as these proposals are
    adopted they are implemented in a manner that preserves our ability to
    maintain trained and ready forces and protect the environment in a
    manner consistent with congressional intent.
        The Army's primary concerns are training restrictions that stem
    from urban sprawl, the resultant increase in Army responsibility to
    manage and protect threatened and endangered species, and the expanded
    application of environmental regulations to the use of military
    munitions.

                                  URBAN SPRAWL

        When many of our installations were established, they were
    generally located in rural areas isolated from civilian populations.
    However, urban growth and development of land around our training
    facilities has changed that. Army installations, once far from public
    view, are now located in suburban and often in the midst of large urban
    areas.
        Unchecked residential and community growth cause tension between
    military operations and neighboring communities over noise, dust, and
    other effects of Army training. Noise, for example, is a sensitive
    issue in communities surrounding Fort Drum, New York; Fort Sill,
    Oklahoma; Fort Bragg, North Carolina; Fort Carson, Colorado; Fort
    Campbell, Kentucky; Fort Hood, Texas; Fort Lewis, Washington; Fort
    Riley, Kansas; Fort Stewart, Georgia; and Fort AP Hill, VA.
    Additionally, The Army faces a particular challenge in managing noise
    issues related to the Aviation School and its extended flight training
    areas over and around Fort Rucker, Alabama. As populations around these
    and other installations continue to grow, the Army expects other
    encroachment-related concerns to intensify.
        RRPI contains two provisions that address the ability of the
    military departments to work in partnership with our neighbors to
    establish protective buffer zones around military installations. One
    provision allows military departments to enter into agreements with
    third parties--such as private conservation organizations--to prevent
    urban development that threatens testing and training. Another
    provision allows the Department of Defense to convey surplus property
    to a State or local government, or to nonprofit organizations that
    exist for the primary purpose of protecting open spaces and natural
    resources. The proposal allows the transfer of land only if it is used
    for conservation purposes in perpetuity. Both of these proposals would
    assist the Department of Defense in maintaining ``buffer zones''
    between ranges and bases and urban areas, and preserve needed habitat
    for potentially imperiled species, lessening the need for legal
    restrictions. They serve both the interests of military readiness and
    environmental protection.

                 THREATENED AND ENDANGERED SPECIES AND HABITAT

        While the Army has been very successful in conserving and
    protecting endangered species, two things are evident. First, as we
    focus our training missions and Transformation on specific
    installations, we find that endangered species restrictions already
    limit the use of a significant portion of the landscape. Second, as the
    habitat surrounding our installations is degraded by incompatible
    development, pressure on the Army to conserve habitat on post
    increases. These factors tend to restrict our access to needed training
    land, restrict the types of training activities that we can conduct on
    the land, and restrict the times and duration of training events
    conducted.
        Army lands host 170 federally listed species on 94 installations.
    Critical habitat for listed species has been designated on 12
    installations to include Fort Lewis, Washington and Fort Irwin,
    California--two installations that are critical to maintaining the war-
    fighting readiness of the Army. For example, at Fort Lewis 70 percent
    of the training land is designated as critical habitat for the
    threatened Northern Spotted Owl. Six of the twelve installations,
    including Fort Lewis, are as yet unoccupied by the species for which
    critical habitat is designated.
        The Red-Cockaded Woodpecker in the Southeast United States affects
    four major installations (Fort Bragg, North Carolina; Fort Stewart,
    Georgia; Fort Benning, Georgia; and Fort Polk, Louisiana) and two major
    service school training installations (Fort Jackson, South Carolina;
    and Fort Gordon, Georgia). The training restrictions associated with
    the 200-foot buffers around each cavity tree include: no bivouacking or
    occupation for more than 2 hours; no use of camouflage; no weapons
    firing other than 7.62mm and .50 cal blank (e.g., no artillery,
    rockets, etc.); no use of generators, no use of riot agents; no use of
    incendiary devices; no use of smoke grenades; and no digging of tank
    ditches or fighting positions. During maneuver, vehicles cannot come
    closer than 50 feet to cavity trees.
        The Red-Cockaded Woodpecker has benefited from the quality habitat
    provided by our installations' lands that have been actively managed
    and insulated from urbanization, development, and commercial forestry
    practices in the region. The Army has committed significant resources
    to support conservation and recovery of the species. However, while The
    Army spent more than $45 million over the past 12 years on conservation
    management programs for Red Cockaded Woodpecker recovery, private
    developers adjacent to our installation have not made similar
    commitments.
        At Fort Hood, Texas, the biological opinion issued under the
    Endangered Species Act for both the Golden Cheeked Warbler and the
    Black Capped Vireo, restricts training on over 66,000 acres (33
    percent) of training land. These restrictions include no digging, no
    tree or brush cutting, and no ``habitat destruction'' throughout the
    year on the entire core and non-core area. From March through August,
    vehicle and dismounted maneuver is restricted to established trails,
    and halts in restricted areas are limited to 2 hours in designated
    endangered species ``core areas'' (46,620 acres of the 66,000 acres are
    designated ``core areas''). Artillery firing, smoke generation, and
    riot control grenades are prohibited within 100 meters of the
    boundaries of the designated ``core areas.'' Use of camouflage netting
    and bivouac are prohibited across the entire ``core area'' during these
    months.
        Protection of threatened and endangered species restricts training
    at many other Army installations. At Fort Huachuca, Arizona, for
    example, management of endangered bats and two other species restricts
    the types, timing, and locations of military activities. Listing of the
    Arroyo Southwestern Toad and designation of critical habitat may have
    serious effects on both land and air-based training. The southern
    corridor at the National Training Center, Fort Irwin, California, is
    designated critical habitat for the Desert Tortoise and 22,000 acres
    cannot be used for maneuver. This designation reduces the amount of
    training that can be conducted on the installation and limits maneuver
    training to the central corridor. Wendell Ford, Kentucky; Camp
    Grayling, Michigan; Camp Ripley, Minnesota; Camp Shelby, Mississippi;
    Camp Perry, Ohio; Camp Leesburg, South Carolina; and Orchard/Gowen
    Field, Indiana--all National Guard training facilities--experience
    training restrictions based on endangered species management. The U.S.
    Fish and Wildlife Service is currently proposing to designate critical
    habitat for 146 plant species in Hawaii. These proposed designations
    will affect seven different training areas and are expected to have
    further adverse impacts in the form of additional training activity
    restrictions, administrative burden, and restricted access. This list
    is not exhaustive, but does illustrate that the Army feels the effects
    of this issue at many locations across the country.
        Designation of critical habitat on Army installations adds
    management costs and reduces the availability of land on which to
    train. New designations require installations to enter into
    consultation with the Fish and Wildlife Service and limit or cease
    training activities while consultation is conducted. Training
    restrictions can even apply when critical habitat is designated on
    military installations where species do not occur.
        In addition to the RRPI's real property acquisition and conveyance
    authorities, which allow for preservation of species habitat around
    Army installations, the RRPI contains a provision that specifically
    addresses the overlapping natural resource management requirements of
    the Endangered Species Act and the Sikes Act. The proposal provides
    that the existence of an approved Integrated Natural Resource
    Management Plan (INRMP), required under the Sikes Act and coordinated
    with the Fish and Wildlife Service, precludes the need to designate
    critical habitat under the Endangered Species Act. This has been the
    practice at a number of Army installations, but the Fish and Wildlife
    Service is being challenged in court for the practice.
        INRMPs take a more holistic approach to managing natural resources.
    They strike a balance and integrate military training needs with
    natural resources management practices to ensure that both imperatives
    are met. Management under an INRMP, in lieu of critical habitat
    designation, allows Army commanders increased flexibility to use the
    land on the installation to meet changing mission needs.

    EXTENSION OF ENVIRONMENTAL LAWS AND REGULATIONS TO UNEXPLODED ORDNANCE
                           AND MUNITIONS CONSTITUENTS

        The development of our current environmental statutes and
    regulations addressing waste management, pollution elimination, and
    cleanup of contamination did not take into account, nor foresee,
    application to military training lands and military weapon systems. The
    use of environmental statutes, such as the Comprehensive Environmental
    Response, Compensation and Liability Act (CERCLA), the Resource
    Conservation & Recovery Act (RCRA), and the Safe Drinking Water Act to
    require investigation and cleanup of munitions and their constituents
    on operational military ranges will likely impact the Army's ability to
    fulfill its national security mission by causing the shut down or
    disruption of live-fire training. A number of these statutes contain
    broad, discretionary enforcement thresholds that are based on the
    assessment of the environmental regulatory authority as to whether a
    given condition or activity presents a ``potential'' risk or
    ``imminent'' hazard to human health or natural resources. These
    assessments have resulted in added restrictions on the Army. While some
    of the environmental statutes provide for short-term national security
    exemptions (often at the Presidential level), these statutes contain
    few practical methods for consideration of the unique military
    readiness impacts of enforcement on military ranges. Clarification of
    the regulatory framework applicable to military training operations
    would be an appropriate manner in which to address the issue.
        The Army at Fort Richardson, Alaska, is currently facing a lawsuit
    alleging violations of the Clean Water Act, RCRA, and CERCLA associated
    with firing munitions at Eagle River Flats range. The RCRA allegation
    is that munitions fired into or onto Eagle River Flats are RCRA
    statutory solid wastes that present an imminent and substantial
    endangerment to health or the environment. The CERCLA allegations are
    that the act of firing munitions onto an operational range and the
    continued presence of those munitions on the range constitute a release
    of hazardous substances potentially requiring reporting,
    characterization, and remediation.
        If munitions used for their intended purpose are considered to be
    statutory solid waste, the Army could be forced to perform corrective
    action or remediation of Eagle River Flats. Live-fire training during
    the remediation would be impossible, and the only mortar and artillery
    impact area at Fort Richardson would be lost to training. The 172d
    Infantry Brigade would be unable to conduct a large portion of its
    mission essential live-fire training operations.
        If courts agree with the plaintiff, then live-fire training and
    testing operations at every Army range (more than 400) could be subject
    to CERCLA response requirements. Further lawsuits could compel the
    Environmental Protection Agency and State regulators in all U.S.
    regions to enforce the same standards on other military ranges. These
    findings would not only dramatically impact the readiness of the 172d
    Infantry Brigade in Alaska, but the entire Department of Defense.
        The RRPI contains provisions affecting both RCRA and CERCLA
    clarifying that live-fire training does not constitute disposal of
    hazardous waste or releases of hazardous substances, as these terms are
    used in RCRA and CERCLA. These proposals seek to codify the existing
    practice by the Environmental Protection Agency and State environmental
    regulatory agencies and remove ambiguity currently in the law. These
    proposals confirm that the cleanup of military munitions is not
    required so long as munitions remain on operational ranges where they
    were fired. The policies governing cleanup of munitions located off an
    operational range and munitions causing imminent danger on-range would
    remain unchanged--as would policies governing clean-up of former ranges
    and other defense sites. These provisions do not seek to avoid the
    Army's responsibilities to clean-up formerly used defense sites or to
    protect the environment from potentially harmful impacts. These
    provisions seek to clarify and affirm existing policies and ensure that
    military ranges, set aside to allow live training and contain potential
    impacts, continue to be available to the soldiers that need to train
    for combat.

            BALANCING MILITARY MISSION AND ENVIRONMENTAL PROTECTION

        The Army's effort to preserve and protect effective training and
    testing has three components:

        1. Seek needed changes to laws and regulations: The Army advocates
    an environmental regulatory framework for military facilities that
    recognizes their uniqueness and allows for successful and protective
    environmental management. The lack of clarity in regulatory authorities
    and standards in existing laws limits the Army's ability to plan,
    program, and budget for compliance requirements. We also advocate the
    empowerment of the Services to work off-post with private landowners,
    local governments, public agencies, and non-profit organizations to
    solve land use conflicts that threaten training.
        2. Obtain resources to implement the Army's Sustainable Range
    Program (SRP). SRP is the foundation for sustaining live fire and
    maneuver training and the environment on our ranges. The objective of
    SRP is to maximize the capability, availability, accessibility of
    ranges and land to support doctrinal training and testing requirements.
    SRP is based on three tenets. First, develop and maintain information
    excellence to have complete data on all aspects of our ranges, their
    operational characteristics as training facilities, their physical
    characteristics as real property, and their characteristics as part of
    the natural and cultural environment. Second, apply integrated
    management across the four disciplines that directly affect ranges:
    range operations and modernization; facilities and installation
    management; explosives safety; and environmental management. Third,
    establish an outreach campaign to inform decisionmakers and the
    community and ensure that their concerns are identified and addressed.
    In this way we will improve public understanding of why the Army must
    conduct training and testing and how we are moving to a more
    sophisticated management approach. As we have in the past, The Army
    will continue to improve range operations, range modernization, state-
    of-the-art land and resource management, research on munitions effects
    and management of unexploded ordnance, and public outreach.
        3. Support and foster cooperation among regulators and the
    military, emphasizing the need to balance military readiness concerns
    and environmental regulation. The Army believes that Congress should
    continue to recognize that the training required for Army readiness is
    a positive societal good and a legal mandate.

                                   CONCLUSION

        The Army is committed to its responsibility as an environmental
    steward for the 16.5 million acres America entrusts to us. However, we
    are equally committed to another precious resource that America
    entrusts to us--her sons and daughters. We are obligated to provide our
    soldiers with the most realistic training scenarios possible to fully
    prepare them for the rigors of war. Although The Army will never
    abandon its environmental responsibilities, we must have land to train.
        Unless we can resolve several issues at our key training areas, we
    face the very real possibility that we will lose some of our critical
    training areas or, at a minimum, we will be forced to deny our soldiers
    the opportunity to participate in the number and kind of exercises
    required to retain perishable skills.
        For 227 years, the Army has kept its covenant with the American
    people to fight and win our Nation's wars. In all that time, we have
    never failed them, and we never will. Building and maintaining an Army
    is a shared responsibility between the Congress, the Administration,
    those in uniform, and the American people. Working with Congress, we
    will keep The Army ready to meet the challenges of today and tomorrow.
        Thank you, Mr. Chairman and distinguished members of the committee
    for allowing me to appear before you today. I look forward to
    discussing these issues with you.
                                     ______

         Responses of Gen. John M. Keane to Additional Questions from
                                 Senator Smith

        Question 1. Some have characterized the recent GAO report on
    encroachment and military training as providing little evidence that
    military readiness is being hampered by encroachment. In light of this,
    why are the provisions in the Department's Readiness and Range
    Preservation Initiative necessary?
        Response. The GAO found that the Services have incrementally lost
    training capabilities due to encroachment and absent efforts to
    mitigate encroachment, can be expected to experience increased losses
    in the future. Encroachment diminishes training realism and restricts
    the types, locations, and times of training events. However, GAO also
    found that DoD has not adequately quantified the readiness impacts
    associated with encroachment on military training. The Army is working
    with OSD and our sister Services to identify mechanisms for measuring
    and reporting encroachment-related restrictions and their impacts on
    our capability to support essential training and testing. The lack of a
    quantifiable measure does not make impacts of encroachment on our live
    training ranges any less real.
        Over the last few years, environmental laws have been interpreted
    and applied in ways that we do not believe Congress intended and to
    conditions that were not anticipated when the laws were passed. Our
    proposed legislation seeks clarification of congressional intent and
    affirmation of principles and rules of law that have been followed for
    decades. These proposals are not sweeping exemptions, but rather are
    ``surgical'' amendments designed to clarify how these laws are to be
    applied to certain uniquely military activities that are most necessary
    to ensure military readiness. I fear that if we do nothing about the
    conditions facing our training areas we will have a readiness train
    wreck. The time to act is now.

        Question 2. If past military readiness reports have not shown
    declines in unit readiness due to training deficiencies, as some read
    the recent GAO report to say, then why is there any urgency to act now?
    Doesn't the GAO Report's conclusion mean that DoD's training
    capabilities are presently unaffected by encroachment?
        Response. Historically, environmental constraints at Army
    installations have not been cited as the reason for reductions of
    training capabilities or readiness ratings. Environmental constraints
    are often viewed as ``control measures'' necessary to avoid conflict
    with environmental regulators and commanders routinely implement
    training work-arounds. Over time, these constraints and work-around are
    accepted as ``business as usual.'' Incremental reductions in training
    capabilities have long-term cumulative impacts that may not be apparent
    to individual commanders during their tour of command. The Army is
    encouraging commanders to evaluate more closely the cumulative impacts
    on live training that have resulted from environmental constraints and
    to document those impacts as notes in Unit Status Reports and in the
    Installation Status Report.
        As stated in response to the previous question, GAO found that the
    Services have incrementally lost training capabilities due to
    encroachment and, absent efforts to mitigate encroachment, can be
    expected to experience increased losses in the future. However, GAO
    also found that DoD has not adequately quantified the readiness impacts
    associated with encroachment on military training. The Army is working
    with OSD and our sister Services to identify mechanisms for measuring
    and reporting encroachment-related restrictions and their impacts on
    our capability to support essential training and testing. The lack of a
    quantifiable measure does not make impacts of encroachment on our live
    training ranges any less real.

                                   __________
      Statement of Gen. Michael J. Williams, Assistant Commandant of the
                                  Marine Corps

        Chairman Jeffords, Senator Smith, and members of the committee,
    thank you for the opportunity to speak to you concerning the Readiness
    and Range Preservation Initiative. Your efforts on behalf of our men
    and women in uniform ensure that the Nation's military remains ready
    and that our service members and their families enjoy the quality of
    life that they deserve. It is my opinion that good quality of life
    begins with realistic training that will result in success on the
    battlefield and the ultimate return of your Marines home to their
    families.
        I welcome the opportunity to offer testimony as the committee
    considers the implications of encroachment. The Readiness and Range
    Preservation Initiative is fundamentally important to the Nation
    because encroachment is on the rise and if left unchecked will
    detrimentally impact the mission of our bases, stations, and ranges in
    the near term and threaten our future military readiness in the long
    term. At stake for your Marine Corps is the cost of success in combat.
    We must do all in our power to ensure that Marines, members of our
    sister Services, and service member families do not pay an
    unnecessarily high price for that success. Marines must train as they
    will fight and we require access to unencumbered sea, land, and
    airspace to properly conduct this training.
        During the last 16 months, Service witnesses have appeared before
    Congress to speak to encroachment issues at five different hearings:
    the Subcommittee on Readiness and Management Support of the Senate
    Armed Services Committee, 20 March 2001; the House Committee on
    Government Reform, 09 May 2001 and 16 May 2002; and the Subcommittee on
    Military Readiness of the House Armed Services Committee, 22 May 2001
    and 08 March 2002. Thankfully, the Readiness and Range Preservation
    Initiative emerged as a result of these hearings where Marine Corps
    witnesses, among others, were afforded the opportunity to articulate in
    detail the Corps' position on the issue of encroachment.
        The challenge of encroachment is clear, as is the importance of
    this hearing and the proposed Initiative. The absolute necessity of
    maintaining military readiness is beyond debate, and readiness depends
    upon quality training that realistically simulates combat conditions.
    The issue, then, is how to balance the demands of national security
    with environmental stewardship, which at times are competing but are
    often complimentary.
        Most of the Marine Corps' bases and stations were established in
    remote areas prior to or during World War 11. Since then significant
    urban development has occurred around many of these installations. At
    the same time, our war fighting doctrine, weapon platforms, and tactics
    have evolved to counter new threats. The Marine Corps now requires
    greater standoff distances and larger maneuver areas. Simultaneously,
    our access to training resources is becoming more constrained,
    primarily as a result of growing populations around our bases and
    stations. The dramatic urban development near many of our installations
    has had numerous unintended consequences. For example, wildlife (often
    threatened or endangered species) seeks out our installations, as they
    are often the last remaining open spaces in areas otherwise overtaken
    by human habitation and use.
        Previous testimony at the hearings referenced above provided
    compelling statements regarding; encroachment. The Marine Corps
    recognized, however, that evidence of negative encroachment impacts,
    though persuasive, were largely anecdotal. Consequently, the Marine
    Corps set out to establish quantitative data regarding this issue.
    Selecting Marine Corps Base Camp Pendleton, California as the subject
    of the study, we examined encroachment impacts on a Marine Air Ground
    Task Force during the conduct of an amphibious landing. We relied upon
    established standards to measure the proficiency of Marines based upon
    the Individual Training Standards of their military occupational
    specialties. The performance of Marine units was assessed against long
    established standards based upon Mission Essential Task Lists.
        We used these standards as the building blocks upon which we were
    able to quantify encroachment impacts. The study selected separate
    combat arms elements of the Marine Air Ground Task Force to examine.
    Completion rates for each task were evaluated through extensive
    interviews with subject matter experts. Given that safety during
    training is paramount, and therefore certain types of training can be
    limited for safety purposes, the study concentrated on non-firing tasks
    (defined as all tasks that did not involve the use of live ammunition
    or explosives). In doing so, we avoided any concern that the study
    would confuse safety with encroachment issues.
        The initial results of the Camp Pendleton Quantitative Study were
    surprising. Three combat arms elements were able to accomplish only 69
    percent of established standards for non-firing field training.
    Endangered species were the largest contributing encroachment factor in
    this study. Figures 1 and 2 illustrate many of the restrictions along
    the Camp Pendleton coastline.

    [GRAPHIC] [TIFF OMITTED] T3726.001

        The analysis of this study continues, and additional data will be
    forthcoming. In the interim, Figure 3 is provided as a graphic example
    of the study's findings. I want to note that this study is not meant to
    identify the combat readiness of any particular Marine unit; instead,
    the study is a report card on Camp Pendleton's ability to provide the
    training environment necessary for Marines to complete their missions
    to task or standard. Marines who cannot get their training at Camp
    Pendleton must and do go elsewhere to train. Naturally, there are
    associated costs here, not only in terms of money but also in quality
    of life.

    [GRAPHIC] [TIFF OMITTED] T3726.002

        Naturally, evidence of negative encroachment impacts is not limited
    to the Camp Pendleton Quantitative Study. Perhaps the most sweeping
    example within the Marine Corps is the recent effort to designate
    critical habitat on 57 percent of the 125,000-acre Camp Pendleton and
    65 percent of the 12,000-acre Marine Corps Air Station Miramar. The
    Marine Corps worked with the U.S. Fish and Wildlife Service to develop
    a scientifically and legally based policy that precluded the need to
    designate critical habitat on Miramar, and precluded the designation of
    critical habitat on the vast majority of Camp Pendleton. This matter is
    still subject to legal challenge by special interests groups. The
    Readiness and Range Preservation Initiative has within it a provision
    that would codify current Fish and Wildlife Service policy. Absent the
    passage of this specific provision, environmental litigation may still
    cause over 65 percent of Marine Corps Air Station Miramar and over 50
    percent of Camp Pendleton to be designated critical habitat.
        As our legislative response to the Pendleton/Miramar critical
    habitat proposals demonstrate, clarification of existing law in
    accordance with Administration policy is the purpose of the Initiative.
    A roll back of the environmental stewardship responsibilities of the
    armed forces is not the intent of the Initiative. Rather, by clarifying
    relevant environmental statutes, the Initiative will enhance the
    ability of the armed forces to train properly for combat.
        A military installation can be viewed as a ``tale of two cities.''
    On the one hand, our installations are comparable to many medium-sized
    cities, complete with populations of 50,000 residents, schools,
    wastewater treatment facilities, power plants, and a hospital. There
    are environmental responsibilities associated with each of these
    amenities, and we seek no relief from any of these responsibilities. A
    military installation, however, is also a military combat test and
    training center. The primary purpose of the military installation is to
    promote military readiness. No civilian city has a similar purpose. It
    is within the venue of military readiness, that we seek to address the
    impact of encroachment on combat readiness activities. Our goal is to
    establish the appropriate balance between our Title X responsibility to
    be combat ready at all times, and our additional environmental
    compliance and stewardship responsibilities. The Initiative's
    provisions are focused solely on readiness activities. Marine Corps
    activities unrelated to combat remain unchanged.
        Encroachment has grown over time, and while each individual issue
    may not seem detrimental to our training mission, it is the cumulative
    effect of these, and the foreseeable increase in these encroachment
    pressures that has lead the Department of Defense to seek the
    clarifications of existing statutes.
        Many of the measures included within the Department of Defense
    legislative proposal, and all of the provisions included within the
    House version of the 2002 Department of Defense Authorization Bill, are
    designed to maintain the status quo so that our training can continue
    at its current pace. For example, the migratory bird provision is
    designed to address a recent court opinion that would, if left
    unchecked, introduce a new requirement into the Migratory Bird Treaty
    Act regulatory framework not present in over 80 years of the Act's
    history. Similarly, the critical habitat provision codifies the current
    Fish and Wildlife Service policy. This policy holds that Integrated
    Natural Resource Management Plans prepared pursuant to the Sikes Act
    provide the special management considerations necessary under the
    Endangered Species Act. Critical habitat designation on military
    installations is, therefore, unnecessary. The ecosystem management
    initiatives at Camp Pendleton in California that resulted in an
    increase in the number of nesting pairs of California least terns (an
    endangered shorebird) from 209 pairs in 1985 to 1,064 pairs in 2001 is
    an illustration of the success of our natural resource management
    plans.
        The Marine Corps is a good steward of the resources entrusted to
    it. We are particularly proud of our success in the recovery of
    endangered species at Camp Pendleton and the proactive timber
    management at Marine Corps Base Camp Lejeune. We have also worked
    tirelessly to preserve archeological resources at the Marine Corps
    Recruit Depot Parris Island and to provide public access to recreation
    areas at the Marine Corps Logistic Base, Albany. Our programs provide
    for multi-function use of the real estate we manage--as long as it does
    not compromise the installation's particular national defense mission.
        As I noted above, environmental protection and Marine Corps
    training are compatible. Our responsibility to the American people is
    to maintain a high state of readiness while preserving and protecting
    the environment of the Nation. Unlike commercial developers, the
    military needs a natural environment for realistic field training. In
    fact, our environmental management efforts have resulted in military
    lands supporting proportionally a much higher number of endangered
    species than Departments of Interior or Agriculture lands.
        Passage of the Readiness and Range Preservation Initiative is
    imperative because encroachment threatens to extend existing laws and
    regulations beyond the contexts for which they were intended,
    frustrating the use of military lands and test and training ranges for
    their designated purposes. The Initiative is key to future readiness.
    It is an appropriate response to the encroachment threat, and I
    encourage your full support for this balanced approach toward both the
    requirement to maintain military readiness and the requirement to
    protect the environmental resources of the Nation.
                                     ______

      Responses of Gen. Michael J. Williams to Additional Questions from
                                 Senator Smith

        Question 1. General, it has been said that you ``now seek permanent
    waivers of the laws that apply to [military] facilities''. Is that fair
    comment? If not, why isn't it fair comment?
        Response. Our initiatives have been portrayed by some as attempting
    to ``exempt'' the Department of Defense from environmental statutes. In
    reality, the Readiness and Range Preservation Initiative would apply
    only to military readiness activities, not to closed ranges or ranges
    that close in the future, and not to the routine operation of
    installation operating support functions, such as administrative
    offices, military exchanges, commissaries, water treatment facilities,
    storage, schools, housing, motor pools, and ongoing cleanup activities.
    Our initiative thus excludes DOD activities that have traditionally
    been of greatest concern to State and Federal regulators, and includes
    only uniquely military activities--what the Department does that is
    unlike any other governmental or private activity.
        The Department is seeking modest clarification in these laws; our
    proposals would confirm--not change--regulatory policies that were put
    in place under previous Administrations. Our proposals are critical to
    sustaining readiness, while their environmental effects range from
    neutral to positive. We want to restore an appropriate balance between
    defense and environmental interests. The land, sea, and airspace we use
    to train our Marines are essential national assets, but environmental
    and other regulations can have unintentional consequences and greatly
    limit the military's ability to effectively train for combat.

        Question 2. Are the emergency exemptions provided in some
    environmental laws sufficient to address the readiness concerns you
    discussed in your testimony?
        Response. Our initiative does not seek to ``exempt'' even our
    readiness activities from environmental laws. Rather, it confirms the
    previous Administration's policy in three areas: (1) INRIVIPs and
    critical habitat; (2) ``harassment'' under the Marine Mammal Protection
    Act; and (3) Federal agency obligations under the Migratory Bird Treaty
    Act. Moreover, our initiative gives States and DoD only temporary
    flexibility under the conformity provisions of the Clean Air Act, not
    permanent relief. The limited changes that we seek are a more limited
    approach than under the emergency authority available in most (but not
    all) environmental laws. For example, invocation of existing emergency
    authority would fully exempt DoD from environmental compliance
    responsibilities, thereby increasing the possibility of environmental
    harm. Although existing exemptions are a valuable hedge against
    unexpected future emergencies, they cannot provide the legal basis for
    the Nation's everyday military readiness activities. Training at Camp
    Pendleton, for example, is continuous, 365 days a year, with an average
    of 130 daily training events. The Range and Readiness Preservation
    Initiative is designed to address these day-to-day military training
    needs. If I may be permitted to offer the following analogy: every car
    should have a tool-box for emergencies; if you need the tool-box to get
    to work every day, you probably need to fix the car. We shouldn't have
    to use an exemption process to conduct daily training. We should,
    instead, fix the car. We seek to address the impact of encroachment on
    combat readiness activities, not to roll back environmental
    requirements as some have alleged. Our goal is to establish the
    appropriate balance between our Title X responsibility to be combat-
    ready at all times, and our additional environmental compliance and
    stewardship responsibilities. The Initiative's provisions are focused
    solely on readiness activities. Marine Corps activities unrelated to
    combat remain unchanged.

                                   __________
     Statement of Gen. Robert H. Foglesong, Vice Chief of Staff, U.S. Air
                                     Force

                                  INTRODUCTION

        Committing this Nation to combat is arguably the hardest decision
    the President and Congress will have to make. This Nation's leadership
    expects, even demands, that its military be ready to go to war. The
    effectiveness of America's military ultimately guarantees our way of
    life. The United States Air Force's effectiveness starts with
    training--training the way we fight. Key provisions in this year's
    Defense Authorization Act (S. 2225) impact how we will manage the
    installations, ranges, and airspace so vital to our combat readiness
    and effectiveness.
        Maintaining continued operations at our installations and access to
    our ranges and airspace is critical. In fact, if our ability to train
    our aircrews should diminish, America will soon lose its edge in air
    combat proficiency. We cannot solely rely on current Air Force
    technology to provide an advantage against our next adversary--our next
    adversary may have access to more advanced equipment than ours. Our
    installations, ranges, and airspace are critical national assets that
    allow the Air Force to test new equipment, develop new tactics, and
    train our forces to be combat-ready.
        It is self-evident that we must be able to train as we are expected
    to fight. To do so, we must maintain adequate test and training
    resources. Our goal is to meet our evolving military needs while
    addressing and resolving, to the maximum extent possible, public
    concerns and Federal, tribal, State, and other agency issues. However,
    competing needs or uses for these resources, coupled with legal and
    procedural requirements to adjust for new mission needs, are eroding
    the resource base that supports our test and training capability.
        We have followed a practice of flexibility and willingness to adapt
    to the extent possible without compromising our operations. Sustainable
    access to ranges benefits many people. Our ranges contain significant
    cultural and natural areas, are used for grazing and crop production,
    and allow hunting or other forms of outdoor recreation. We share
    airspace and airwaves with major sectors of our economy. However, we
    are faced with restrictions as well as competing economic uses for
    assets that undermine our mission performance and can ultimately affect
    our readiness, a condition commonly referred to as encroachment.

                       RANGE MANAGEMENT AND ENCROACHMENT

        The Air Force is experiencing encroachment that stresses our
    ability to maintain training and readiness in several areas: spectrum,
    air quality, noise, unexploded ordnance, endangered species, and access
    to shared-use airspace. Chapter 101A of S. 2225 contained language
    designed to clarify the interpretation and application of governing
    statutes for air quality, munitions response, and species and habitat
    protection that will ensure that military training and readiness are
    not compromised as the military departments carry out their
    environmental protection responsibilities. In addition, the legislation
    provides for improved property conservation procedures to assist
    private sector organizations in conserving and protecting land and
    natural resources.

                         SPECIES AND HABITAT PROTECTION

        Currently, 79 federally listed threatened and endangered species
    live on approximately nine million acres of Air Force lands and waters.
    As an example, on the Barry M. Goldwater Range (BMGR) in Arizona we
    follow the movement of approximately 100 Sonoran Pronghorn antelope.
    The DoD flies about 70,000 sorties yearly on the BMGR and our
    biologists track the antelope's movements to ensure they are not in the
    target area. If they are spotted, the missions projected for that area
    are diverted or canceled. Working hand-in-hand with the U.S. Fish and
    Wildlife Service (FWS) and the Arizona Department of Game and Fish, we
    strive to ensure the survival of this endangered subspecies of
    antelope.
        At the Nevada Test and Training Range (NTTR), operated by Nellis
    Air Force Base, the Air Force supports the Bureau of Land Management's
    wild horse program on over 390,000 acres of the NTTR. In the southern
    portion of the range we have fenced target areas to ensure the Desert
    Tortoise is not affected by our operations. Additionally, in Nevada and
    Arizona we work with local communities and tribes to ensure the
    protection of cultural resources.
        At Tyndall Air Force Base in Florida, we monitor the nests of about
    100 Loggerhead and Green Sea Turtles daily, physically protecting their
    homes with wire mesh. We do this to ensure compliance with the
    Endangered Species Act (ESA) and guarantee our aircrews get the
    training they need to accomplish their mission.
        At Eglin Air Force Base in Florida, we electronically tag and track
    endangered Gulf Sturgeon to ensure they are not impacted by our
    operations. The water impact/detonation area is monitored for sturgeon
    prior to training. If sturgeon are detected in the area, detonation is
    moved or delayed. Eglin also serves as the home to the endangered Red-
    Cockaded Woodpecker. By working closely with the FWS, we have been able
    to nearly double their population. Additionally, our biologists are
    doing everything possible to aid the Flatwoods Salamander and Eastern
    Indigo Snake. Again, we do this to support the ESA, serve as good
    stewards of our nation's resources, and maintain our combat readiness.
        In some cases, our installations and ranges are the only large,
    undeveloped, and relatively undisturbed areas remaining in growing
    urban areas. This can result in Air Force lands becoming a refuge in
    the region that can support endangered species. Biological Opinions
    resulting from required Endangered Species Act assessments have
    resulted in range and airspace restrictions mainly associated with
    aircraft noise and munitions use. We operate with altitude restrictions
    because of the noise and its possible effects on endangered species in
    States such as Arizona, New Mexico, and Texas.
        The potential designation of range areas as a critical habitat or
    marine sanctuary may seriously limit our ability to perform training
    and test missions. We need to work within the Administration to ensure
    a balance between two national imperatives: military readiness and
    environmental conservation.

                           UNEXPLODED ORDNANCE (UXO)

        UXO and the disposal of residue material (primarily scrap metal) on
    air-to-ground ranges is one area where we have extensively investigated
    our practices and policies. UXO and range residue (used targets, inert
    ordnance, etc.) physically occupy only a small part of any air-to-
    ground range, but its presence is an increasingly expensive problem.
    The costs associated with clearing closed ranges have led us to the
    conclusion that we need to plan and manage for the entire life-cycle of
    a range.
        The Air Force first started clearing ordnance from active ranges in
    the late 1940's. Active range clearance not only provides for safe
    target area operations, but also provides airfield-recovery training
    for our Explosive Ordnance Disposal technicians. Air Force policy
    requires that active air-to-ground ranges be cleared on a quarterly,
    annual, and 5-year basis at varying distances from each target. Our
    currently scheduled UXO and residue removal program, along with
    modifications to our range-clearing practices, will ensure long-term
    range sustainability and the safety of personnel on the range. Our
    ultimate goal is to manage our ranges effectively and efficiently
    throughout the life-cycle process providing for sustainable operations,
    safe and effective UXO management and long-term environmental
    stewardship.
        The Air Force also understands its responsibility to manage
    materiel from our ordinance if it travels off-range, and supports
    Section 2019 of the bill because it clarifies our obligation to respond
    to potential offsite impacts from our munitions training.

                                  AIR QUALITY

        Many of our largest and most important installations are located in
    areas that are experiencing rapid growth and the attendant pressures
    resulting from air quality standards. A number of our bases are
    currently located in ``non-attainment'' areas, which are places that
    failed to meet EPA standards for air pollution, and more bases are in
    areas that are trending toward non-attainment. Air quality pressures
    generally affect operations at our installations more than on our
    ranges, but they potentially limit our basing options for force
    realignments and weapon system beddowns. If any beddown action is found
    not to conform to the State implementation plan for Clean Air Act
    compliance, the Air Force must either obtain air quality credits or
    reduce other emissions at the base to counterbalance the impact.
    Military mission requirements frequently demand operational changes
    with little or no lead-time to adjust for requirements such as
    conformity. The Air Force supports the legislative provision that
    allows for emission limit compliance over a 3-year period so that
    mission critical operations can still take place while appropriate
    mitigation is arranged. We continue to work with State regulators and
    local communities to ensure we have the flexibility to base aircraft at
    our installations which have huge investments in infrastructure not
    only on the installation itself, but also in the ranges used by its
    aircraft.

                             SPECTRUM REALLOCATION

        The RF frequencies below about 5000 MHz are the most valuable part
    of the spectrum for the kinds of highly mobile functions carried out at
    our test ranges. Over the past decade, the Federal Government has lost
    access to over 235 MHz of bandwidth in this part of the spectrum--due
    primarily to International and congressionally mandated reallocations.
    For example, until 1992, the DoD and private sector aerospace industry
    were authorized to use 80 MHz of designated spectrum in ``Upper-S
    Band'' to transmit real-time telemetry data from flight tests of manned
    aircraft. This spectrum bandwidth was needed to support increasing
    telemetry bandwidths requirements for future fighters and bombers. In
    1992, the World Radio Conference (WRC) reallocated the lower 50 MHz of
    this frequency band to provide spectrum for broadcasting high quality
    audio from geostationary satellites. In 1997, under the requirements of
    the Balanced Budget Act of 1997, we were forced to transfer an
    additional 5 MHz of the original 80 MHz wide frequency band, leaving
    only a 25 MHz increment for flight test telemetry in this spectrum.
    Loss of this 55 MHz of spectrum causes, for example, delays in major
    flight-test programs.

                                   CONCLUSION

        In conclusion, we thank the committee for allowing the Air Force to
    share the details of its concerns over the growing issue of
    encroachment. The Air Force understands its obligation to identify
    competing human and environmental needs and to establish a compatible
    use of resources. However, it also recognizes it has a unique need to
    perform a military mission. The multi-billion dollar effort in Defense
    programs to conserve, protect, and restore the environment will
    continue to achieve lasting successes in all areas of protecting human
    health and the environment. The Air Force appreciates the committee's
    support so that we can maintain our stewardship of the environment and
    still train and prepare the men and women of the Armed Forces.
                                     ______

      Responses of Gen. Robert H. Foglesong to Additional Questions from
                                 Senator Smith

        Question 1. General, some have criticized the House of
    Representatives for including in its version of the fiscal year 2003
    Defense Authorization Bill two of your requests, [regarding ESA and
    MBTA], specifically because the House had too little information to
    justify including such provisions. Is that fair comment? If not, why
    isn't that fair comment?
        Response. The Air Force believes the request for legislative relief
    was valid for two reasons. First, the military departments have
    provided Congress, 0MB, and other Federal agencies detailed
    compilations of the numerous and problematic instances where expansive
    interpretations of these two statutes have impaired military readiness.
    Second, the GAO report on military encroachment concluded that the
    ``DOD and the military services have lost training range capabilities
    and can be expected to experience increased losses in the future absent
    efforts to mitigate encroachment.''

        Question 2. The GAO report recommends that the DoD develop and
    maintain inventories of its training ranges, capacities and
    capabilities; finalize a comprehensive plan of administrative actions
    that includes goals, timelines, projected costs, and the clear
    assignment of responsibilities for addressing encroachment issues, and
    periodically reporting on progress in addressing encroachment issues.
    What are the Department's plans in terms of implementing these
    recommendations?
        Response. The Air Force is developing an Environmental Resource!
    Capability Framework designed to identify, quantify, and assess how
    military readiness can be adversely affected when access to the
    resource base needed for training is limited or degraded from
    incompatible uses, statutory restrictions, or economic competition.
    This will enable the Air Force to measure the extent to which
    encroachment has caused, or will cause training and operational
    deficiencies.

        Question 3. Admiral Fallon responded to a question as to how he
    could justify the RRPI in light of the fact that there ``has been no
    evidence, not even a study, on what the problem is''. What response
    would the Air Force have to this question?
        Response. The Air Force has provided Congress, 0MB, and other
    Federal agencies with examples of impairments to military readiness due
    to encroachment. In addition, the GAO report on military encroachment
    concluded that ``DOD and the military services have lost training range
    capabilities and can be expected to experience increased losses in the
    future absent efforts to mitigate encroachment.''

                                   __________
         Statement of Jamie Rappaport Clark, Senior Vice President for
              Conservation Programs, National Wildlife Federation

        Good morning, Mr. Chairman and members of the committee. My name is
    Jamie Rappaport Clark and I am here to testify on behalf of the
    National Wildlife Federation, the nation's largest conservation
    education and advocacy organization. I thank the committee for this
    opportunity to testify on the interplay of our environmental laws and
    the Defense Department's readiness activities on its military bases.
        I currently serve as Senior Vice President for Conservation
    Programs, where I oversee the organization's policy and advocacy work.
    Prior to arriving at National Wildlife Federation in 2001, I served for
    13 years at the U.S. Fish and Wildlife Service, with the last 4 years
    as the Director of the agency. Prior to that, I served as Fish and
    Wildlife Administrator for the Department of the Army, Natural and
    Cultural Resources Program Manager for the National Guard Bureau, and
    Research Biologist for U.S. Army Medical Research Institute. I am the
    daughter of an U.S. Army Colonel, and lived on or near military bases
    throughout my entire childhood.
        Based on this experience, I am very familiar with the Defense
    Department's long history of leadership in wildlife conservation. On
    numerous occasions during my tenures at FWS and the Defense Department,
    the Defense Department rolled up its sleeves and worked with wildlife
    agency experts to find a way to comply with environmental laws and
    conserve imperiled wildlife while achieving military preparedness
    objectives.
        Today, we are at a crossroads. Will the Defense Department continue
    to build on its long record of wildlife conservation and respect for
    environmental laws and protections? Or will it now retreat from its
    historical role as one of the stewards of the nation's wildlife and
    take on a new role as an unregulated despoiler of our environment?
        Unfortunately, at the highest levels of this Administration,
    efforts are underway to give the Defense Department an unwarranted free
    pass from complying with the nation's environmental laws. At the center
    of this effort is the Readiness and Range Preservation Initiative, a
    proposal by the Administration to exempt the Defense Department from
    key provisions of six environmental laws: the Endangered Species Act
    (ESA), the Migratory Bird Treaty Act (MBTA), the Marine Mammal
    Protection Act, the Clean Air Act, Resources Conservation and Recovery
    Act, and Superfund.
        At the request of the Administration, all six of these exemptions
    were included in S. 2225, the Defense Authorization bill, as originally
    introduced in the Senate. Fortunately, they were not included in the
    Senate Armed Services Committee markup and were not added to the bill
    passed by the Senate on June 28, 2002. However, two of these proposed
    exemptions--concerning the ESA and the MBTA--were incorporated into the
    House version of the Defense Authorization bill. Two other riders not
    sought by DOD were also inserted--one that would undermine Utah
    wilderness protections, and one that would waive State environmental
    laws to allow a new toll road through endangered species habitat in
    southern California. Attached to my testimony are fact sheets prepared
    by NWF and colleagues from other environmental groups explaining each
    of these exemptions. The National Wildlife Federation, along with its
    colleagues in the rest of the environmental community, strongly urges
    Senators on the conference committee for the DOD Authorization bill to
    ensure that these attacks on environmental laws are kept out of the
    conferenced bill.
        I should also note that the House has placed a rider on the FY02
    Supplemental Appropriations bill that would exempt DOD from its ESA
    obligation to address the harmful effects of DOD decisions that deplete
    local water supplies. This exemption likewise is pending before a
    conference committee. We strongly urge Senators on the Supplemental
    Appropriations conference committee to ensure that these attacks on
    environmental laws are kept out of the conferenced bill.

      OVERARCHING CONCERNS WITH THE ADMINISTRATION'S READINESS INITIATIVE

        The ESA, MBTA and other environmental laws now under attack provide
    an essential bulwark of protection for the ecosystems that sustain us
    all. The American people understand the central role played by these
    laws in maintaining their health and safety and quality of life.
    According to an April 2002 poll by the Zogby public opinion research
    firm, 85 percent of Americans believe that the Defense Department, like
    all other Federal agencies, should comply with the nation's
    environmental laws.
        The National Wildlife Federation recognizes that military readiness
    also is vitally important. However, where we part company with this
    Administration is on whether wholesale exemptions from environmental
    laws are needed to achieve readiness. The environmental laws targeted
    by this Administration already contain site-specific exemption and
    permitting procedures that enable the Defense Department to achieve its
    readiness objectives while still taking the environment into account.
        The General Accounting Office recently investigated allegations
    that environmental laws and other kinds of encroachments are unduly
    restricting DOD's ability to carry out its readiness and training
    mission. According to GAO's June 2002 report, entitled ``Military
    Training: DOD Lacks a Comprehensive Plan to Manage Encroachment on
    Training Ranges,'' there is no proof that environmental laws are at
    fault for any of the minor gaps in readiness that may exist.
    Specifically, GAO found:
          The Armed Services' own readiness data does not show that
    environmental laws have significantly affected training readiness.
          DOD officials themselves admit that population growth
    around military installations is responsible for past and present
    encroachment problems.
          The Armed Services have never assessed the overall
    impacts of encroachment on training costs.
          DOD's readiness reports show high levels of training
    readiness for most units. In those few instances of when units reported
    lower training readiness, DOD officials rarely cited lack of adequate
    training ranges, areas or airspace as the cause.
          DOD has not fully defined training range requirements and
    lacks information on training resources available to the Services to
    meet those requirements. Problems at individual installations may
    therefore be overstated.
        These findings make absolutely clear that DOD has not yet made its
    case that environmental laws have significantly reduced DOD's
    readiness. Before Congress embarks upon weakening fundamental
    environmental safeguards, DOD should be asked to produce a
    comprehensive study of the problems faced in achieving readiness. The
    study should investigate all of the potential obstacles to achieving
    readiness, including not only environmental laws but also sprawling
    human populations near military installations and ineffective growth
    management laws. The study also should include a discussion of
    alternative approaches for achieving readiness that do not conflict
    with the national environmental protection goals, such as using virtual
    or constructive simulation technology.
        The DOD has provided a handful of anecdotes about the difficulties
    that it has faced protecting the environment at individual bases. I do
    not dismiss the challenges that DOD has faced in balancing
    environmental and readiness objectives at some of its bases. From my
    own experience at FWS, I know that some of these problems are vexing
    and can sometimes take years to resolve. However, these problems can
    best be addressed by early consultations between DOD officials and
    experts in FWS and other environmental agencies. Congress can help
    ameliorate these problems by providing these agencies with the funds
    they need to implement our environmental laws. Providing the funding
    needed for inter-agency consultations would be a cost-effective
    investment in both environmental protection and military readiness.
        Providing nationwide exemptions to DOD would not eliminate the
    challenge of balancing environmental protections and military
    readiness. It would simply eliminate DOD's incentive to devise creative
    solutions working in tandem with experts at the environmental agencies
    and with the public. Congress should encourage DOD to work with other
    agencies and the public to solve readiness and environmental challenges
    at the local level, taking into account local conditions, taking
    advantage of local wisdom and using existing provisions of
    environmental laws.
        It is my experience that the existing framework of environmental
    laws provides DOD with plenty of flexibility to achieve solutions at
    the local level. The National Wildlife Federation stands ready to work
    with DOD to find these solutions.
        Because the proposed exemptions from the ESA and MBTA will soon be
    debated in conference committee, and because these are the laws with
    which I have significant experience, the remainder of my testimony
    today will focus on them. However, the other proposed exemptions
    likewise pose a serious threat to the environment and public health. I
    have attached to my testimony several fact sheets, prepared by
    colleagues in other conservation groups, explaining why the other
    exemptions are equally problematic.

               CONCERNS WITH THE ENDANGERED SPECIES ACT EXEMPTION

        The ESA exemption passed by the House differs slightly from the one
    introduced in the Senate as part of the Administration's package.
    Because the House language will be the subject of the upcoming debate
    in conference committee, I will focus on that version.
        H.R. 4546 would prohibit the Fish and Wildlife Service or National
    Marine Fisheries Service (Service) from designating critical habitat on
    any lands owned or controlled by DOD if an Integrated Natural Resources
    Management Plan (INRMP) has been developed pursuant to the Sikes Act
    and the Service determines that the plan ``addresses special management
    consideration or protection.'' This exemption is problematic in a
    number of respects.

    Eliminates a Crucial Species Protection Tool
        First, this exemption would take away a crucial tool for ensuring
    the survival and recovery of imperiled species. Of the various ESA
    protections, the critical habitat protection is the only one that
    specifically calls for protection of habitat needed for recovery of
    listed species. It is a fundamental tenet of biology that habitat must
    be protected if we ever hope to achieve the recovery of imperiled fish,
    wildlife and plant species.
        Under Section 7 of the ESA, DOD is required to consult about its
    proposed training actions with wildlife experts at the Services. This
    consultation typically leads to development of what is known as a
    ``work-around,'' a strategy for avoiding or minimizing harm to listed
    species and their habitats while still providing a rigorous training
    regimen.
        H.R. 4546 would replace these crucial protections with management
    plans developed pursuant to the Sikes Act, which does not require the
    protection of listed species or their habitats. It merely directs DOD
    to prepare INRMPs that protect wildlife ``to the extent appropriate.''
    Thus, even INRMPs that allow destruction of essential habitat and that
    put fish, wildlife or plant species at serious risk of extinction would
    be substituted for critical habitat protections.
        Moreover, the ESA's consultation procedure that currently enables
    DOD and the Service to ``look before they leap'' into a potentially
    harmful training exercise would be sacrificed. Under H.R. 4546, the
    Service can do nothing more than rubber stamp DOD's management plan
    upon submittal, so long as the plan contains ``special management
    considerations.'' The Service has no subsequent consultation role as
    individual training exercises are devised.
        This reduction in species protection would have major implications
    for our nation's rich natural heritage. DOD manages approximately 25
    million acres of land on more than 425 major military installations.
    These lands are home to at least 300 federally listed species. Without
    the refuge provided by these bases, many of these species would slide
    rapidly toward extinction.

    Readiness Can Be Achieved Without Sacrificing Species Protection
        A second reason why the ESA exemption is problematic is because it
    takes away crucial species protections without any clear gains in
    military readiness. There is simply no evidence that elimination of ESA
    protections would improve readiness. In fact, negotiations of work-
    arounds under the ESA typically produce a ``win-win,'' where readiness
    is achieved while imperiled species are protected.
        Allow me to provide a few brief examples. At Camp Lejeune in North
    Carolina, every colony tree of the endangered red-cockaded woodpecker
    is marked on a map, and Marines are trained to operate their vehicles
    as if those mapped locations are land mines. On the Mokapu Peninsula of
    Marine Corps Base Hawaii, the growth of non-native plants, which can
    decrease the reproductive success of endangered waterbirds, is
    controlled through annual ``mud-ops'' maneuvers by Marine Corps Assault
    Vehicles. Just before the onset of nesting season, these 26 ton
    vehicles are deployed in plow-like maneuvers that break the thick mats
    of invasive plants, improving nesting and feeding opportunities while
    also giving drivers valuable practice in unusual terrain.
        These examples, along with additional ones that we provide in our
    ESA fact sheets attached to this testimony, highlight a major trend
    that I believe has been missed by those promoting the DOD exemptions.
    In recent years, DOD has increasingly incorporated the concept of
    sustainability into its management plans. It has done this not just in
    response to environmental laws, but also because sustainable use of DOD
    lands often makes sense from a military readiness and cost-
    effectiveness standpoint. By leaving woodpecker colony trees intact,
    DOD preserves a realistic training scenario for those who would be
    fighting battles in forested areas abroad. By operating tanks so that
    they avoid the threatened desert tortoise, DOD prevents erosion, a
    problem that is extremely difficult and costly to remedy.

    The ESA Already Provides DOD With Two Safety Valves if Irreconcilable
            Conflicts Were to Arise
        A third reason why the ESA exemption is problematic is because the
    ESA already provides DOD with the necessary flexibility to meet its
    training objectives. As I already mentioned, the Section 7 consultation
    process provides a very workable mechanism for DOD and the Services to
    negotiate solutions to virtually every challenge that arises. If that
    process does not lead to a solution, Congress provides at least two
    safety valves.
        First, under Section 7(j) of the ESA an exemption ``shall'' be
    granted for an activity if the Secretary of Defense finds the exemption
    is necessary for reasons of national security. To this date, DOD has
    never sought an exemption under Section 7(j), highlighting that the
    challenge of reconciling training needs with species conservation is
    adequately being addressed in the Section 7 consultation process.
        Second, under Section 4(b) of the ESA, the Service is authorized to
    exclude any area from critical habitat designation if it determines
    that the benefits of exclusion outweigh the benefits of specifying the
    area. (An exception is made for when the Service finds that failure to
    designate an area as critical habitat will result in the extinction of
    a species--a finding that the Service has never made.) In making this
    decision, the Service must consider ``the economic impact, and any
    other relevant impact'' of the critical habitat designation. DOD has
    recently availed itself of this provision to convince the U.S. Fish and
    Wildlife Service to exclude the vast majority of habitat at Camp
    Pendleton--habitat deemed critical in a proposed rulemaking--from final
    critical habitat designations.
        As this example illustrates, where there are site-specific
    conflicts between training needs and species conservation needs, the
    ESA provides a mechanism for resolving them in a manner that allows DOD
    to achieve its readiness objectives. Granting DOD a nationwide ESA
    exemption, which would apply in many places where no irreconcilable
    conflicts between training needs and conservation needs have arisen,
    would be harmful to imperiled species and totally unnecessary to
    achieve readiness objectives.
        I have attached several ESA fact sheets that highlight additional
    reasons why a nationwide ESA exemption for DOD is inappropriate.

             CONCERNS WITH THE MIGRATORY BIRD TREATY ACT EXEMPTION

        The MBTA exemption passed by the House differs slightly from the
    one introduced in the Senate as part of the Administration's package.
    Because the House language will be the subject of the upcoming debate
    in conference committee, I will focus on that version.
        H.R. 4546 completely exempts DOD from any obligation to comply with
    the MBTA when migratory birds are incidentally taken as a result of its
    readiness activities. This nationwide exemption would greatly reduce
    protection of migratory birds, and it has not been shown to be
    necessary to achieve readiness objectives.
        The Defense Department has cited just one example of how the MBTA
    could be used to prevent it from achieving readiness objectives: the
    recent court ruling in Center for Biological Diversity v. Pirie, 2002
    WL 389944 (D.D.C. 2002). In that case, a trial judge agreed with
    environmentalists that DOD had violated the MBTA in connection with its
    live fire training exercises on the island of Farallon de Medinilla.
    The court enjoined the training exercises until DOD secured a permit.
        There are at least two important reasons why this court ruling
    should not form the basis for awarding DOD a nationwide exemption from
    MBTA. First, the ruling has been appealed, and the injunction will be
    stayed for the entire length of the appeal. It makes no sense to enact
    legislation when the sole basis for that action could disappear when
    the appellate court issues its ruling. Second, DOD has now applied to
    the U.S. Fish and Wildlife Service (FWS) for a ``special purpose''
    permit to allow its live fire training activities on Farallon de
    Medinilla to continue. It would be premature for Congress to act before
    the permitting process has played itself out and the scope of the
    problem is better understood.
        The National Wildlife Federation strongly opposes any legislative
    changes to the MBTA until at least two crucial steps are taken. First,
    Congress should give breathing space to collaborative efforts currently
    being undertaken by the Federal agencies. Beginning with the
    Administration in which I served and continuing with the current
    Administration, FWS has embarked upon developing a series of Memoranda
    of Understanding (MOUs) with each Federal agency with activities
    affecting migratory birds. These MOUs, which are designed to protect
    migratory birds while giving Federal agencies the flexibility they need
    to accomplish their missions, are an important step forward for the
    MBTA program, and Congress should provide sufficient time for the
    agencies to make them work.
        Second, a thorough policy review is needed to determine how best to
    modernize the overall MBTA program. Growing human populations and
    sprawling development patterns have led to increased interactions
    between people and migratory birds and serious declines in many bird
    populations. Neither Congress nor recent Administrations have ever
    seriously attempted to grapple with this problem in a comprehensive
    way. Before making changes to this important statute, Congress should
    undertake or help launch a major review of the challenges faced in
    implementing the MBTA and the potential policy responses to those
    challenges. If this committee were to elect to proceed down this path,
    the National Wildlife Federation would be willing to assist. Among
    others, the following issues would need to be considered:
          What is the extent of incidental takings of migratory
    birds and their nests in the U.S.? Which human activities cause the
    greatest amount of takings? Which activities pose the greatest threat
    to bird populations?
          What strategies have been employed by FWS to protect
    migratory birds from harm caused by incidental takings? What
    improvements are needed? Can we buildupon these strategies, or is an
    entirely new approach needed?
          Does FWS have the authority to authorize incidental
    takings under the MBTA and the underlying treaties? What amount of
    mitigation or compensation would the Interior Department need to
    require from permit applicants to achieve compatibility with the MBTA
    and the treaties?
          Could FWS reasonably be expected to impose permitting
    requirements on non-Federal entities, which are not subject to the
    threat of citizen suits (as are Federal agencies under the APA)? If FWS
    exercises its discretion not to enforce the MBTA against non-Federal
    entities, could it reasonably be expected to impose permitting
    requirements solely on Federal entities?
          If FWS were to institute a program for the permitting of
    incidental take by Federal and/or non-Federal entities, how would the
    program be designed? How many permit applications could be expected?
    How would offsetting conservation measures be designed, funded,
    implemented and monitored?
          What funding is currently provided to FWS and other
    agencies to implement the MBTA? How much additional funding would be
    needed to implement a program for the permitting of incidental take?
    What are the prospects of securing such funding?
          What other policy approaches are available to regulate
    incidental take aside from a permitting program? How much funding would
    these approaches require?
          What has been the role of the States in implementing the
    MBTA? What role should they play?
          What would be the effect of deregulating incidental take?
    Are there ways to protect migratory birds from the harmful incidental
    effects of human activity apart from a regulatory prohibition?
          If we conclude that deregulating incidental take is
    appropriate with respect at least some kinds of human activity (e.g.,
    certain DOD training exercises), could this be accomplished without
    congressional involvement? If congressional action is needed, would
    revision of the MBTA to exempt certain activities violate the
    underlying treaties? What would be the implications of treaty
    violations?
          Is work needed to clarify or improve the treaties? What
    is the potential for working with this Administration and Canada,
    Mexico, Russia and Japan on updating the treaty framework?
        As this list of unanswered questions makes clear, updating the MBTA
    to address the major challenge of conserving migratory birds would not
    be a simple task. Allowing individual agencies faced with a site-
    specific problem to rush into Congress and secure nationwide exemptions
    would complicate the task even further. It would encourage any other
    agency with an MBTA issue to appeal immediately to Congress rather than
    participating in the normal administrative and judicial processes.
        Congress should reject the Administration's attempt to secure an ad
    hoc exemption from the MBTA for DOD. Any changes to MBTA should be made
    only after careful study of the new approaches being taken, the
    problems being encountered and the potential policy solutions, and only
    after substantial opportunities for public input and debate. To
    sidestep these precautionary measures and grant ad hoc exemptions would
    potentially violate our treaty obligations to the countries with which
    we share migratory birds. Such an action also would betray the millions
    of people in this country who care deeply about the future of their
    migratory birds.

                                   CONCLUSION

        In summary, the National Wildlife Federation strongly opposes the
    Administration's efforts to exempt DOD from the nation's environmental
    laws. We urge Senators who participate in the conference committees for
    the Defense Authorization bill or the Supplemental Appropriations bill
    to reject the exemptions found in the House versions of those bills, as
    well as any other efforts to weaken environmental protection under the
    guise of national security.
        Thank you for the opportunity to testify today.
                                     ______

                     Operation RCW: The New Air-Ground Team
                                  The Marines
                        We're Saving A few Good Species

        Teamwork between air and ground forces is critical to the success
    of the U.S. Marine Corps, but when Marines take the field at Camp
    Lejeune, they often find the red-cockaded woodpecker already controls
    the sky. That's because the Marines, teaming up with the U.S. Fish and
    Wildlife Service, are proving that a first-rate military force can
    train while protecting endangered species. One result: the red-cockaded
    woodpecker is thriving at Camp Lejeune. That's what happens when your
    best friends are Marines.

                    National Wildlife Federation Factsheet:
        Oppose Any Amendments To S. 2225 That Would Exempt DOD From The
               Endangered Species Act Or Other Environmental Laws

        In response to a last-minute request from the Department of Defense
    (DOD), the House of Representatives added language to its FY03 defense
    authorization bill, H.R. 4546, that would greatly reduce DOD's
    obligations under the Endangered Species Act and other environmental
    laws. DOD will likely seek similar exemptions when S. 2225, the Senate
    Armed Service Committee's defense authorization bill, is reconciled
    with the House bill in conference committee.
        H.R. 4546 would prohibit the Fish and Wildlife Service or National
    Marine Fisheries Service (Service) from designating critical habitat on
    any lands owned or controlled by DOD if an Integrated Natural Resources
    Management Plan (INRMP) has been developed pursuant to the Sikes Act
    and the Service determines that the plan ``addresses special management
    consideration or protection.'' To safeguard this nation's natural
    heritage--especially the hundreds of imperiled species residing on
    military lands--this ESA exemption must be removed.

              DOD CAN ACHIEVE READINESS WITHOUT WEAKENING THE ESA

        H.R. 4546's changes to the ESA are not needed for DOD to take
    whatever action it deems necessary to achieve military readiness. The
    ESA already provides an exemption from the law's requirements if the
    Secretary of Defense finds an action must be carried out for reasons of
    national security. If protecting critical habitat hampers national
    security efforts at a particular training facility, DOD can seek an
    exemption under Section 7(j). To this date, no exemption has ever been
    sought. DOD also can request that the Service exercise its authority
    under the ESA to exclude specific parcels from critical habitat
    designations altogether where such designations would conflict with
    training needs. Providing DOD with a blanket legislative exemption,
    which would apply in the many places where no conflict between wildlife
    conservation and national security exists, is unjustified.

        H.R. 4546 ELIMINATES THE DUTY TO DESIGNATE AND PROTECT CRITICAL
      HABITAT--A CRUCIAL SAFETY NET FOR SPECIES ON THE BRINK OF EXTINCTION

        The ESA requires that the Service designate critical habitat, and
    that Federal agencies avoid taking action that will destroy or
    adversely modify that habitat. Critical habitat is defined by the ESA
    as habitat needed by imperiled species to remain viable over the long
    term. Whereas other ESA provisions focus on ensuring short-term
    survival needs, the ESA's requirement to protect critical habitat is
    the only provision that clearly addresses what is needed to achieve the
    law's basic goal--recovery and removal from the list of threatened and
    endangered species. Thus, critical habitat protection is an essential
    part of the law's ``safety net'' for imperiled species.
        By requiring that critical habitat protection be replaced by
    INRMPs, H.R. 4546 would remove this crucial safety net. Unlike the ESA,
    the Sikes Act does not require protection of imperiled species. It
    merely directs DOD to prepare INRMPs that protect wildlife ``to the
    extent appropriate.'' Under H.R. 4546, even INRMPs that put fish,
    wildlife or plant species at risk of extinction would be substituted
    for critical habitat protections.

           H.R. 4546 DOES NOT PROVIDE FOR MEANINGFUL REVIEW OF INRMPS

        Under its current informal policy, the Service applies a three-part
    test to determine whether an INRMP sufficiently protects imperiled
    species to justify substituting the INRMP for critical habitat
    designation. On at least three occasions over the past year, the
    Service concluded that INRMPs were not sufficiently protective and went
    forward with critical habitat designation. Under H.R. 4546, the
    Service's review function would essentially be eliminated. Instead, it
    would be required to substitute an INRMP for critical habitat
    protection whenever the INRMP ``addresses special management
    consideration or protection.'' Under this exceedingly loose standard,
    the Service would essentially be precluded from designating critical
    habitat on military lands, even in cases where the INRMP fails to
    adequately protect imperiled species.

     H.R. 4546 WEAKENS SPECIES PROTECTIONS ON LANDS NOT USED FOR MILITARY
                                    TRAINING

        H.R. 4546 requires that INRMPs be substituted for critical habitat
    protections on lands ``owned or controlled'' by DOD, regardless of
    whether the military is actually using those lands for any training
    exercises. Thus, the bill would exempt DOD from its ESA obligations
    even in places where no training is taking place. For example, at Camp
    Pendleton in southern California, DOD leases some of its land to the
    San Onofre State Beach Park. H.R. 4546 would deny critical habitat
    protections to several endangered species there, including the
    tidewater goby, California gnatcatcher, and the southwestern arroyo
    toad--causing harm to these species without providing any military
    benefits.

       H.R. 4546 LEAVES SPECIES VULNERABLE TO HARM FROM NON-DOD FEDERAL
                                   ACTIVITIES

        Where critical habitat has been designated on military land,
    offsite activities of non-DOD Federal agencies that cause harm to that
    habitat (e.g., road building by the Federal Highway Administration that
    causes excessive sedimentation in a salmon stream) would normally be
    subject to ESA review. Under H.R. 4546, this review, and a key
    opportunity for modifying the harmful activity, would be eliminated.
    This is because INRMPs, unlike critical habitat designations, govern
    only the activities of DOD.

             H.R. 4546 REDUCES DOD'S DUTY TO CONSULT UNDER THE ESA

        Despite its language stating that it does not affect the duty of
    DOD to consult with the Service under Section 7 of the ESA, H.R. 4546
    in fact substantially reduces DOD's duty to consult. When an action is
    proposed in a habitat important to an imperiled species but not
    currently occupied, the consultation duty under the ESA normally arises
    only if that habitat has been formally designated as critical. Under
    H.R. 4546, critical habitat designation would be eliminated, and thus
    DOD would be relieved of any responsibility to consult with the Service
    about the impact of its activities.

       H.R. 4546'S ESA LOOPHOLE WAS ADOPTED WITHOUT ADEQUATE OPPORTUNITY
                                   FOR REVIEW

        The House adopted DOD's proposed ESA loophole without any hearings
    or any other effort to receive input from individuals and groups
    outside DOD. Such far-reaching changes to the ESA, our nation's most
    important wildlife law, should be considered carefully within the
    committee of jurisdiction, with adequate time for review and input by
    interested and knowledgeable parties.
        Please ask your Senators to oppose amendments to the Defense
    Authorization bill that exempt DOD from the Endangered Species Act and
    other environmental laws!
                                     ______

    Conserving Imperiled Wildlife at Military Bases: DOD has not Identified
                    any Problems Justifying an ESA Exemption
        At the request of the Department of Defense (DOD), the House of
    Representatives has added language to its FY03 defense authorization
    bill, H.R. 4546, that would greatly reduce DOD's obligations under the
    Endangered Species Act and other environmental laws. DOD will likely
    seek similar exemptions when S. 2514, the Senate Armed Service
    Committee's defense authorization bill, comes to the Senate floor or in
    conference committee.
        The General Accounting Office has concluded, based on a review of
    DOD's own readiness reports, that the military is at a high state of
    readiness and that DOD has never demonstrated that the ESA has
    significantly impeded training.
        Why does DOD nonetheless seek a sweeping ESA exemption? It turns
    out that DOD has nothing to offer besides a handful of anecdotes about
    being required to come to the negotiating table to develop ``work
    arounds'' to protect the last remaining habitats of endangered species.
    An analysis of these anecdotes shows that sweeping exemptions from the
    ESA are unwarranted--DOD has been able to carry out its training
    mission while complying with the ESA. Due to these successful
    negotiations, DOD has never found it necessary to utilize the
    ``national security'' exemption procedure provided by the ESA.

                           CAMP PENDLETON, CALIFORNIA

        DOD ASSERTION: ``Sixty percent of Camp Pendleton is designated as
    critical habitat for the endangered California gnatcatcher''
    threatening to render the base ``unusable for realistic combat
    training.''
        THE REST OF THE STORY: This is incorrect. The U.S. Fish and
    Wildlife Service (FWS) initially proposed to designate critical habitat
    for the gnatcatcher at Camp Pendleton, but ultimately determined that
    the benefits of exclusion outweighed the benefits of designation and
    exercised its discretion under current law to exclude all of Camp
    Pendleton from the gnatcatcher's critical habitat designation.
        In fact, despite the presence of 18 endangered species, less than 6
    percent--not the reported sixty percent--of Camp Pendleton's 125,000
    acres is designated as critical habitat for any species. Camp
    Pendleton's successful efforts to protect the endangered snowy plover
    were recently celebrated in DOD's ``We're Saving a Few Good Species''
    poster campaign, with DOD declaring that ``an elite military force can
    train in environmentally sensitive areas and protect a threatened
    species at the same time.''
        DOD ASSERTION: ``There's 17 miles of beach line at Camp Pendleton
    and about 500 yards of that can be used for amphibious operation.''
        THE REST OF THE STORY: The biggest limitation on training is not
    critical habitat designation but the presence of Interstate 5, the San
    Onofre Nuclear Generation Plant and other topographic access
    limitations. The ESA only limits large-unit amphibious landings on two
    to three miles of the 17-mile beach and only during the 5- to 6-month
    nesting seasons of the endangered Western snowy plover and California
    least tern.

                       NAVAL BASE AT CORONADO, CALIFORNIA

        DOD ASSERTION: ``When Navy SEALs land on beaches at Naval Base
    Coronado during nesting season, they have to disrupt their tactical
    formation to move in narrow lanes marked by green tape, to avoid
    disturbing the nests of the Western snowy plover and California least
    tern.''
        THE REST OF THE STORY: Of the base's 5,000-yard ocean coastline,
    the presence of these two endangered birds only restricts the use of
    one, 500-yard training lane and the restriction is only in place for
    the birds' 5- to 6-month nesting season. And, as the Navy acknowledges,
    this nest-marking ``work around'' has been important to species
    recovery.

                        SAN CLEMENTE ISLAND, CALIFORNIA

        DOD ASSERTION: The presence of the endangered loggerhead shrike
    shorebird has curtailed ``the use of illumination rounds or other
    potentially incendiary shells during shore bombardment exercises at San
    Clemente during the 6-month loggerhead shrike breeding season.''
        THE REST OF THE STORY: The loggerhead shrike first became imperiled
    on the island due to the Navy's introduction of a goat that decimated
    the bird's habitat. As a result of conservation efforts on the island,
    the shrike's population, once as low was 13 birds, now consists of 106
    birds.
        The use of live ordinance is restricted from June to October (not
    during the February-June breeding season) because of the risk of fire,
    but this could be remedied by the use of inert ordinance. The sole
    reason provided by the Marine Corps for its failure to use inert
    ordinance is that its inventory of this kind of ordinance is limited.

                    VIEQUES ISLAND NAVAL RANGE, PUERTO RICO

        DOD ASSERTION: ESA protections for the endangered hawksbill and
    leatherback sea turtles have restricted training at this range,
    including the possibility of ``halting the entire training exercise for
    a Carrier Battle Group in the event of observing a single sea turtle.''
        THE REST OF THE STORY: As a result of formal consultation under the
    ESA, the Navy agreed to institute precautionary conservation measures.
    In response, FWS issued a no-jeopardy Biological Opinion allowing
    battle group exercises to go forward without fear of delay due to the
    ESA. The Navy's conservation measures, such as the relocation of turtle
    eggs to a hatchery during amphibious landings, have resulted in the
    successful hatching of over 17,000 hawksbill and leatherback sea turtle
    eggs.

                  BARRY M. GOLDWATER AIR FORCE RANGE, ARIZONA

        DOD ASSERTION: ``In the calendar year 2000, almost 40 percent of
    the live fire missions at the Goldwater Range were canceled.''
        THE REST OF THE STORY: This base is home to the last remaining
    Sonoran pronghorn in the United States--with just 99 animals left, it
    is one of the most endangered species of large mammals in the world.
    The pronghorn's continued existence is threatened by air and ground
    maneuvers, including bombing, strafing, artillery fire and low-level
    flights. Despite this fact, DOD's proposed legislation would not
    address the situation at Goldwater, as FWS has not designated any of
    the range as critical habitat for the pronghorn out of fear that doing
    so ``could seriously limit the Air Force's ability to modify missions
    on its lands.'' In return, the Air Force is participating in a regional
    ecological study with the Department of the Interior, the Nature
    Conservancy, and the Sonoran Institute as a starting point for their
    conservation efforts.

                                FORT HOOD, TEXAS

        DOD ASSERTION: ``Only about 17 percent of Fort Hood lands are
    available for training without restriction.''
        THE REST OF THE STORY: Endangered species conservation measures are
    singled out for blame in the limitation of training exercises at Fort
    Hood, yet over 74 percent of the base's 217,600 acres are currently
    restricted in order to accommodate large-scale cattle operations.
    Conversely, less than 34 percent of Fort Hood's training land has faced
    limited restrictions because of the presence of two endangered birds,
    the black capped vireo and the golden cheeked warbler. Even on these
    restricted lands, however, many training activities are still allowed.
    In certain ``core areas'' within the endangered birds' habitat, the use
    of chemical grenades, artillery firing and digging are limited.
        DOD has successfully worked with the ESA to achieve its military
    readiness objectives while conserving imperiled species. Please ask
    your Senators to oppose amendments to the Defense Authorization bill
    that exempt DOD from the Endangered Species Act and other environmental
    laws!
                                     ______

          DOD has a Long History of Working Successfully with the ESA

        At the request of the Department of Defense (DOD), the House of
    Representatives has added language to its FY03 defense authorization
    bill, H.R. 4546, that would greatly reduce DOD's obligations under the
    Endangered Species Act (ESA) and other environmental laws. DOD will
    likely seek similar exemptions when S. 2514, the Senate Armed Service
    Committee's defense authorization bill, comes to the Senate floor or in
    conference committee.
        DOD argues that the ESA is too inflexible and that a sweeping new
    exemption is needed. However, this argument is not based on having
    encountered insurmountable hurdles complying with the ESA. In fact, the
    General Accounting Office has concluded, based on a review of DOD's own
    readiness reports, that the military is at a high state of readiness
    and that DOD has never demonstrated that the ESA has significantly
    impeded training.
        Nonetheless, without any public debate, DOD seeks to bypass the
    ESA's careful balancing between military training needs and
    conservation of imperiled wildlife. The facts show that this would be
    an unfortunate and unnecessary departure from DOD's long history of
    working successfully with the ESA.

                  MARINE CORPS AIR STATION MIRAMAR, CALIFORNIA

        In an effort to protect the station's ten endangered species, the
    U.S. Fish and Wildlife Service (FWS) initially proposed to designate 65
    percent of Miramar's land area as critical habitat. FWS later exercised
    its discretion under existing law and withdrew this proposed
    designation after the Marine Corps established a framework to protect
    and preserve the station's endangered species, guaranteed the plan
    would be implemented, and defined measures to judge the plan's
    effectiveness. According to DOD, in so doing, ``the plan made military
    readiness activities and endangered species protection mutually
    compatible.''

                  MOKAPU PENINSULA OF MARINE CORPS BASE HAWAII

        Among the 50 species of birds that call this island home are all
    four of Hawaii's endangered waterbirds: the Hawaiian stilt, Hawaiian
    coot, Hawaiian gallinule, and the Hawaiian duck. Management activities
    at the base have more than doubled the number of stilts on the base
    over the past 20 years. The growth of non-native plants, which can
    decrease the waterbirds' reproductive success, is controlled through
    annual ``mud-ops'' maneuvers by Marine Corps Assault Vehicles (AAVs).
    Just before the onset of nesting season, these 26 ton vehicles are
    deliberately deployed in supervised plow-like maneuvers that break the
    thick mats of invasive plants, improving nesting and feeding
    opportunities while also giving drivers valuable practice in unusual
    terrain.

                              AIR FORCE IN ALASKA

        In 1995 FWS found that the Air Force's low-level, high speed
    training flights in Alaska had the potential to disturb the three North
    American subspecies of endangered peregrine falcons. After the Air
    Force consulted with FWS under the ESA, the Air Force agreed to
    protective ``no-fly'' zones around dense peregrine nesting locations.
    The peregrine falcon has since recovered to the point that it has been
    removed from the ESA's list of threatened and endangered species, and
    FWS has declared that ``the knowledge gained by Air Force research
    projects was important in the recovery process.''

                 MARINE CORPS BASE CAMP LEJEUNE, NORTH CAROLINA

        Initially 10 percent of this base was restricted in order to
    protect the red-cockaded woodpecker, but now only 1 percent of the base
    is restricted for that purpose, as the number of breeding pairs of the
    bird have doubled in the past 10 years. The Marines attribute the
    success of its conservation efforts to its partnership with FWS, the
    State of North Carolina, academic experts, and environmental advocacy
    groups.

                           FORT BRAGG, NORTH CAROLINA

        Fort Bragg contains important habitat for the red-cockaded
    woodpecker, enabling the base to proudly claim that ``this single
    species has survived because of the havens provided by our
    installations' training land and ranges.'' Working with the Nature
    Conservancy and others, DOD has created buffers around its
    installations and training areas, lessening restrictions on training
    while enabling the endangered red-cockaded woodpecker to move closer to
    recovery.
        DOD has successfully worked with the ESA to achieve its military
    readiness objectives while conserving imperiled species. Please ask
    your Senators to oppose amendments to the Defense Authorization bill
    that exempt DOD from the Endangered Species Act and other environmental
    laws!
        Title XIV-UTTR--A Backdoor Attack on Utah Wilderness in Defense
                          Authorization Act H.R. 4546
        The Defense Authorization Act passed out of the Armed Services
    Committee of the House of Representatives with a last minute anti-
    wilderness provision inserted in the Chairman's Mark.
        This last minute addition (Title XIV-UTTR) would:
        1. Undermine the Wilderness Act of 1964 with unacceptable and
    unjustified wilderness management language;
        2. Dramatically expand DOD control of over 11 million acres of
    Bureau of Land Management (BLM) public land when DOD currently controls
    only the airspace above these lands
        3. Designate minimal acreage as wilderness which would have less
    protection than these lands currently have as Wilderness Study Areas;
        4. Stop a BLM planning process which will likely result in
    additional Wilderness Study Areas.
        This Utah Test & Training Range (UTTR) provision has the following
    serious problems:
        1. It puts in place never-before used management language for newly
    designated wilderness that would allow new and unrestricted on-the-
    ground military development on Bureau of Land Management (BLM) lands
    designated as wilderness; allow the military to unilaterally close
    public access within designated BLM wilderness; explicitly deny a
    Federal water right necessary to protect wildlife and other natural
    resources within designated wilderness; and release 100,000's of acres
    of BLM-identified wilderness-quality lands from current and future
    consideration as Wilderness Study Areas. Taken together, these
    provisions go far beyond any language ever included in enacted
    wilderness legislation.
        2. It would also put in place unprecedented high levels of DOD
    control for all BLM lands falling underneath the airspace of the Utah
    Test and Training Range (UTTR)--turning about 10,000 square miles of
    Utah into a de facto military reserve by requiring that the Secretary
    of Interior get permission from the Secretary of the Air Force and the
    Utah National Guard before changing or updating any Resource Management
    Plan for BLM lands falling underneath UTTR airspace.
        3. Finally, it would dramatically shortchange the American public
    when it comes to protecting deserving wilderness lands. The provision
    designates as wilderness only a small portion of lands included in
    America's Redrock Wilderness Act (H.R. 1613 and S. 786)--a bills
    currently co-sponsored by 162 members of the House of Representatives
    and 16 members of the Senate.
        At the least, this far-reaching attempt to weaken the Wilderness
    Act of 1964, expand DOD control over BLM lands, and shortchange the
    amount of wilderness to be designated in Utah should go through normal
    congressional processes, including congressional hearings where the
    public has an opportunity to comment. Burying this provision in the
    Defense Authorization Bill so that it cannot be considered in the light
    of day is a serious abuse of the legislative process.
        In addition:

              1. DOD has not released any reports demonstrating a need for
            Title XIV.
              2. DOD has not requested Title XIV.
              3. There has never been any conflict between conservation
            groups and the DOD use of the Utah Test and Training Range
            airspace even though over 440,000 sorties have been flown in
            the UTTR airspace since the Wilderness Study Areas were
            created.
              4. Title XIV has not been the subject of a congressional
            hearing in the House or Senate Armed Services Committees.
              5. Title XIV was not subject to the regular amendment process
            in the House Armed Services Committee due to its introduction
            as part of the Chairman's mark.
              6. The House Resources Committee and the Senate Energy
            Committee are the committees having jurisdiction over all
            decisions concerning wilderness on BLM lands but have had no
            opportunity to review or comment on Title XIV.
              7. Title XIV was not subject to amendment on the House floor
            even though an amendment to strike Title XIV was sought by the
            ranking member of the House Armed Services Committee, the House
            Minority Leader, and the sponsor of H.R. 1613 (America's
            Redrock Wilderness Act) which is cosponsored by 162 House
            members. Additionally, Representative Boehlert (R-NY) sent a
            memo to other moderate House Republicans indicating that he
            would vote to strike Title XIV if an amendment to strike was
            allowed on the House floor by the Rules Committee.
              8. The eventual rule that guided House floor debate was
            highly contested--passing on a narrow 215-200 vote.

        The view that Title XIV is both procedurally and substantively
    flawed is shared by many members of the Armed Services Committee--see
    pages 348-349 of their report for ``Additional Views Concerning Title
    XIV--Utah Test and Training Range.'' These members of the Armed
    Services Committee conclude their assessment of Title XIV with the
    following:
              The bottom line is two fold. All House members have a stake
            in preserving the committee process. House rules on committee
            jurisdiction exist for a reason, and we should abide by them
            absent some compelling exceptional justification. None has been
            provided here.
              Second, it is wrong to ram through any committee contentious
            provisions of sweeping scope and substantive import. This wrong
            has been exacerbated in this case by the absence of committee
            hearings and the legislative legerdemain of embedding a
            previously unseen title of the bill in the chairman's mark.
              We cannot sanction procedural and substantive transgressions
            of this magnitude.
                                     ______

     DoD Fiscal Year 2002 Authorization--Foothill Tollroad Rider Fact Sheet

                                    OVERVIEW

        The House Version of the fiscal year 2002 Department of Defense
    Authorization Act contains a provision that would exempt the Secretary
    of Defense from California State law when granting an easement for a
    controversial, environmentally damaging toll road through a California
    State Park that is leased to California by the Marine Corps.

                          THE FOOTHILL TOLLROAD SOUTH

         Sixteen mile-long, four lane toll road in southern Orange
    County and northern San Diego County
         The road will bisect some of the last open space in
    southern Orange County, pave over vital habitat critical to the
    survival of at least eight endangered species (including steelhead
    trout and the coastal California gnatcatcher), greatly expand urban
    sprawl and increase water pollution.
         The ``preferred alignment'' of the toll road will also run
    directly through San Onofre Beach State Park.

               The park comprises over 2,000 acres and is part of
            one of the last large coastal open spaces in Southern
            California.
               With well-over a million visitors in 1995-1996, San
            Onofre is the 10th most visited in California's State Park
            system.\1\

        \1\ California Department of Parks and Recreation, Mitigation
    Assessment of FTC-South Impacts on San Onofre State Beach, August 1997,
    at p. 2.
    ---------------------------------------------------------------------------
       A RIDER WILL EXEMPT APPROVAL AND OPPERATION OF THIS PROJECT FROM
                                 CALIFORNIA LAW

         The United States Marine Corps owns land which it leases
    to the State of California for San Onofre State Beach Park.
    Accordingly, before the Park may be used as a possible route for the
    Foothill Tollroad, the Secretary of Defense must grant an easement
    across the property.
         Section 2867 of the House fiscal year 2002 Defense
    Authorization Act would require the Secretary of Defense to grant an
    easement for the construction of the Foothill South to the
    Transportation Corridor Agencies (``Agency'') ``notwithstanding any
    provision of State law that would otherwise prevent the Secretary from
    granting the easement or the Agency from constructing, operating, or
    maintaining the restricted access highway'' (emphasis added).
         Effect of this language would be to totally exempt the
    Secretary of Defense from all California environmental, public safety
    and transportation laws.
         This language could also be interpreted as totally
    exempting the Transportation Corridor Agencies--which is not a part of
    the Department of Defense or even a Federal agency--from California
    State law.
                                     ______

                              The Kolbe Amendment

        An amendment added to fiscal year 2002 Supplemental Spending bill
    by Rep. Kolbe attempts to exempt the Department of Defense from
    complying with the substantive and procedural protections of the
    Endangered Species Act (Sec. 7) when imperiled species or their
    habitats are threatened by increases in off-base water consumption that
    result from decisions made by the DoD. This nationwide exemption seeks
    to create a new precedent to prevent the assessment, and mitigation, of
    indirect impacts of certain DoD actions. This provision provides the
    DoD a different standard of effects analysis than those that apply to
    virtually every other Federal entity. The consideration of indirect
    effects of a Federal action is a well-established legal principal in
    many our nation's environmental laws, such as the Endangered Species
    Act and the National Environmental Policy Act. Similarly, this
    provision could prevent any analysis of interrelated and interdependent
    actions that would not occur but for an action taken by the DoD as
    required by the ESA.
        This amendment could also adversely affect other water users. As it
    seeks to prevent the DoD from being held responsible for off-base
    impacts that would not occur but for the Department's actions, water
    users that share a water basin with the DoD could find themselves
    bearing responsibility for the off-base impacts caused by a Department
    decision.
        Although the amendment is superficially limited to water
    consumption that occurs off of the military base and that is ``not
    under the direct authority and control'' of the Secretary of Defense,
    it arguably exempts Defense Department actions that could have major
    offsite impacts. For example, Defense Department actions, such as
    hiring decisions or defense contracting, can have significant growth-
    inducing effects in a community. However, because the water use of
    those new hires may not be within the direct control of the Defense
    Department, such decisions could be exempt from ESA review under this
    amendment. Moreover, the Department of Defense could potentially exempt
    many of its actions from the ESA simply by outsourcing its functions
    through defense contracts. This provision might well allow DOD to carry
    out actions that clearly will cause the extinction of a species without
    any consideration, through the FWS consultation process, of mitigation
    measures or reasonable alternatives that might protect the species.

             THREATENS A NATIONALLY RECOGNIZED ECOLOGICAL TREASURE

        One area particularly threatened by this amendment is Arizona's San
    Pedro River, one of the richest biological reserves in all of North
    America. In 1988 Congress designated it as the San Pedro National
    Riparian Conservation Area. It was the first ``Globally Important Bird
    Area'' identified in North America by the American Bird Conservancy and
    was also recognized by the Nature Conservancy as one of the world's
    eight ``Last Great Places''. According to an April 2000 article in
    National Geographic ``82 species of mammals--a community unmatched
    anywhere north of the tropics-inhabit this valley'' and ``the San Pedro
    harbors the richest, most dense and diverse inland bird population in
    the United States as well--385 species.''
        The immediate impact of this amendment could be to further threaten
    the survival of San Pedro River. Today, the San Pedro is being
    dewatered as a result of water consumption, and much of that water
    consumption is a result of the Department of Defense's operations at
    Fort Huachuca, an army base located near the river. Under the terms of
    this amendment, the Fort's actions, many of which result in additional
    personnel moving to Sierra Vista and, consequently, in increased water
    consumption, could occur without any consideration of the extent to
    which they jeopardize the river and its rare species and without any
    consideration of alternatives that might be reasonably be available.
                                     ______

       Backgrounder on the Readiness and Range Preservation Initiative's
                   Proposed Exemptions from the Clean Air Act

        The Readiness and Range Preservation Initiative's (RRPI) proposed
    revisions to the Clean Air Act are designed to exempt the Department of
    Defense from having to comply with our national public health air
    quality standards, called national ambient air quality standards or
    NAAQS. This means that those living in areas with military bases could
    breathe dirtier air, which could result in more premature deaths,
    asthma attacks, cardiopulmonary problems, and other adverse health and
    environmental effects. The sweeping exemptions within this proposal are
    unnecessary as the Clean Air Act has ample provisions to reconcile
    clean air requirements with national security and military readiness
    concerns.

                          THE THREAT TO PUBLIC HEALTH

        The Clean Air Act requires states to analyze their pollution, and
    then develop comprehensive plans that delineate how a State will attain
    the Federal air quality standards and how it will verify such
    attainment.\1\ The Federal Government is required to do its share,
    ensuring that its activities do not impair air quality and conform to
    any applicable Federal or State implementation plan for attaining the
    NAAQS.\2\ This means that DOD activities cannot cause or contribute to
    a violation of any NAAQS, increase the frequency or severity of NAAQS
    violations, or delay attainment of a standard. To ensure this, certain
    proposed Federal activities trigger an analysis of emissions to
    determine the activity's impact on air quality, called a conformity
    analysis. If this analysis shows that pollution will increase above a
    certain threshold amount (this varies from 25--100 tons per year
    depending on the pollutant and the region's attainment status\3\), the
    Federal Government must take steps to mitigate or offset these
    additional emissions.
    ---------------------------------------------------------------------------
        \1\ 42 USC Sec. 7511a (Sec. 182).
        \2\ 42 USC Sec. 7506(c) (Sec. 176(c)).
        \3\ 40 CFR Sec. 93.153(b)(1) and 40 CFR Sec. 51.853(b) and (c).
    ---------------------------------------------------------------------------
        Because RRPI defines military readiness so broadly, it attempts to
    permanently exempt DOD from conforming to Federal or State
    implementation plans for attaining the NAAQS for a broad range of
    activities. RRPI attempts to give DOD a 3-year extension on its
    conformity analysis and allow the Federal Government to proceed with
    its activities while analyzing those same activity's effects on air
    quality. Although the RRPI contains language requiring DOD to cooperate
    with a State to ensure conformity within 3 years of the date of new
    activities, it subsequently attempts to remove all the hammers for
    ensuring that they do so and to preempt a State from taking action to
    require reductions from the DOD. Thus, an area that violates the NAAQS
    because of these military activities could no longer have to take steps
    to meet them or take additional steps to reduce air pollution. This
    could result in those living in areas with military bases breathing
    dirtier air, which could result in more premature deaths, asthma
    attacks and other adverse health and environmental effects.

                    THE PROPOSED EXEMPTIONS ARE UNNECESSARY

        These exemptions are unnecessary as the Clean Air Act provides
    ample mechanisms for exempting DOD activities where there is a military
    or a national security need. Notably, the DOD has been unable to
    provide a single example of the Clean Air Act hampering military
    readiness. In fact, examples provided in the DOD's own materials
    demonstrate that the Clean Air Act provides adequate flexibility for
    military activities.
    Exemptions
        1. If the President ``determines it to be in the paramount interest
    of the United States. . . .'' he may:

               exempt any emission source of any Federal
            department, agency or instrumentality from compliance with
            local, State or Federal air pollution requirements, processes
            and sanctions for two consecutive 1 year periods, or
               issue regulations exempting from compliance ``any
            weaponry, equipment, aircraft, vehicles, or other classes or
            categories of property owned or operated by the Armed Forces .
            . . .'' for unlimited 3 year intervals\4\
    ---------------------------------------------------------------------------
        \4\ 42 USC Sec. 7418(b) (Sec. 118(b)).
    ---------------------------------------------------------------------------
        2. Initial actions in response to ``emergencies or natural
    disasters'' are exempt from conformity, and continuing actions for
    unlimited 6 month periods if the head of DOD makes a written
    determination that the conformity analysis would lead to an
    unacceptable delay.\5\ Emergency is defined as ``a situation where
    extremely quick action on the part of Federal agencies involved is
    needed where the timing of such Federal activities makes it impractical
    to meet the requirements of this subpart, such as natural disasters
    like hurricanes or earthquakes, civil disturbances such as terrorist
    attacks and military mobilizations''.\6\
    ---------------------------------------------------------------------------
        \5\ 40 CFR Sec. 51.853(d)(2) and (e) respectively, and
    Sec. 93.153(d)(2) and (e) respectively.
        \6\ 40 CFR Sec. 93.152
    ---------------------------------------------------------------------------
        3. The following Federal activities are exempt from conformity.
    ``the routine, recurring transportation of material and personnel'',
    [r]outine movement of mobile assets, such as ships and aircraft, in
    home port reassignments and stations (where no new support of
    facilities or personnel are required) to perform as operational groups
    and/or for repair or overhaul.''\7\
    ---------------------------------------------------------------------------
        \7\ 40 CFR Sec. 51.853(vii) and (viii) respectively, and
    Sec. 93.153 (vii) and (viii) respectively.
    ---------------------------------------------------------------------------
        4. Actions that ``implement a foreign affairs function'' of the
    U.S. are exempt from conformity.\8\
    ---------------------------------------------------------------------------
        \8\ 40 CFR Sec. 51.853(c)(xviii) and Sec. 93.153(c)(xviii).
    ---------------------------------------------------------------------------
      these sweeping exemptions have been proposed without adequate review
        RRPI's sweeping exemptions have been proposed at the last moment
    and without adequate review and discussion. The late notice and rushed
    nature of these proposals indicates an unwillingness to have a full and
    fair debate. Far reaching changes that attempt to exempt the Federal
    Government from its own public health and environmental laws must
    receive careful consideration by the committees of jurisdiction with
    adequate time for review and input by interested and knowledgeable
    parties. The Clean Air Act is one of the nation's oldest and most
    successful environmental and public health laws. It must not be rolled
    back in a hasty and unnecessary attempt to exempt DOD from complying
    with our national public health air quality standards.
                                     ______

    State and Territorial Air Pollution Program Administrators/
          Association of Local Air Pollution Control Officials,
                                           Washington, DC, May 2, 2002.
    Hon. Carl Levin, Chairman,
    Committee on Armed Services,
    U.S. Senate,
    Washington, DC.

    Hon. John W. Warner, Ranking Member,
    Committee on Armed Services,
    U.S. Senate,
    Washington, DC.
        Dear Senator Levin and Senator Warner: On behalf of the State and
    Territorial Air Pollution Program Administrators (STAPPA) and the
    Association of Local Air Pollution Control Officials (ALAPCO)--the two
    national associations representing State and local air pollution
    control officials--I write to you today to express concerns regarding
    potential changes to Clean Air Act (CAA) provisions as they relate to
    activities of the U.S. Department of Defense (DOD), and to urge against
    such potential changes during your Committee's mark-up of DOD's
    authorization legislation for fiscal year 2003.
        It is our associations' understanding that, as part of your
    Committee's forthcoming deliberations over the Department of Defense
    Authorization Act for Fiscal Year 2003, amendments to various
    environmental and public health statutes will be offered. These
    amendments, which are based on recommendations by DOD, would provide
    broad statutory exemptions for purposes of military readiness. We urge
    your Committee to reject these changes, including those to Section 176
    of the CAA, relating to the conformity of Federal actions (including
    those of DOD) to Federal or State implementation plans for attaining
    health-based National Ambient Air Quality Standards. STAPPA and ALAPCO
    believe that such exemptions are unnecessary, in that the CAA already
    provides DOD ample flexibility to carry out its duties during times of
    war and emergency.
        Under Section 118 of the CAA, the President may exempt DOD from any
    requirements of the Act upon finding that it is of ``paramount interest
    of the United States to do so.'' Further, the Federal regulations
    implementing the CAA's ``general conformity'' provisions from which DOD
    specifically seeks exemption, also allow DOD to suspend compliance in
    the case of emergencies (which, by definition, include terrorist
    activities and military mobilizations) and further, permit DOD to
    conduct routine movement of material, personnel and mobile assets, such
    as ships and aircraft, provided no new support facilities are
    constructed.
        In light of the broad statutory and regulatory flexibilities
    already provided, we do not believe that additional CAA exemptions are
    necessary in order for DOD to conduct military readiness activities.
    Further, we believe the CAA exemptions sought by DOD would,
    essentially, serve only to allow routine, non-emergency activities that
    require the construction of additional support facilities to skirt
    important environmental requirements. The significant adverse air
    quality impacts that could result from such exemptions could
    unnecessarily place the health of our nation's citizens at risk.
        STAPPA and ALAPCO urge you and your colleagues to reject actions to
    exempt DOD from CAA requirements. If, however, such actions are to be
    further pursued, we respectfully request that Congress allow for full
    participation by all interested parties, including State and local air
    pollution control officials, and that other congressional committees
    with jurisdiction over CAA issues also be included.
        If you have any questions, or if STAPPA and ALAPCO can provide any
    further information, please do not hesitate to contact me at (202) 624-
    7864.
                Sincerely,
                                                     S. William Becker.
                                     ______

        Please Oppose The Department of Defense's Attempt To Weaken Our
               Nation's Toxic Waste Management and Clean Up Laws

        The Department of Defense (``DoD'') is attempting to weaken the
    ability of states, EPA, and citizens to protect public health and
    environmental quality from toxic waste. DoD is seeking broad exemptions
    from two laws: (1) the Comprehensive Environmental Response
    Compensation and Liability Act (``Superfund''), our nation's preeminent
    toxic waste cleanup law; and (2) the Resource Conservation and Recovery
    Act (``RCRA''), which establishes a cradle-to-grave management system
    for handling hazardous wastes. DoD's proposal could preempt State and
    EPA authorities, and allow contamination to migrate unchecked, vastly
    increasing cleanup costs and threats to public health.

                  DOD IS ONE OF THE NATION'S BIGGEST POLLUTERS

        Contamination and hazardous wastes at DoD installations poses
    serious threats to public health and environmental quality. DoD is the
    nation's largest polluter at the country's most heavily contaminated
    toxic waste sites. In fiscal year 1994:
         DoD facilities accounted for 81 percent of all Federal
    facilities listed under Superfund.
         DoD had 129 Superfund sites, out of 160 total Federal
    Superfund sites.

        DOD TOXIC WASTE SITES THREATEN PUBLIC HEALTH AND THE ENVIRONMENT

        Contaminated DoD facilities threaten public health.
         Massachusetts Military Reservation, Cape Cod, MA: The
    facility has contaminated the sole source drinking water aquifer for
    over 400,000 people. Military installations are located on top of more
    than 10 sole source aquifers across the Nation.
         Hunters Point Naval Shipyard, San Francisco, CA: An
    underground hazardous waste landfill caught fire at the shipyard. The
    Navy failed to notify local residents for weeks after the fire started.
    People complained of headaches, lesions, nausea, asthma and other
    illnesses.
         Starmet Corp., Concord, MA: Depleted uranium (``DU'')
    ammunition contaminated groundwater with uranium at levels more than
    3,000 times above Safe Drinking Water Act standards. DU is in soil more
    than a mile from the production facility, at levels 16 times greater
    than background.

              DOD'S PROPOSAL COULD WEAKEN SUPERFUND'S PROTECTIONS

        DoD's proposal could weaken the authority of EPA, states and
    citizens to protect communities from toxic waste. DoD's proposal could
    shift most contaminated sites into the Supefund program where DoD--not
    EPA or states--largely has authority to issue cleanup orders and
    conduct oversight authority of its own cleanups. Section 2019(b) of
    DoD's proposal would exempt ``explosives, unexploded ordinance,
    munitions, monition fragments, or constituents thereof'' that are on a
    range from the definition of ``release.'' DoD's proposal could:
         Eliminate EPA authority under Section 104 to clean up a
    release or respond to a substantial threat of a release of hazardous
    substances on ranges.
         Weaken EPA and State authority to clean up contamination
    that migrates off of ranges and control the source of contamination on
    ranges.
         Stop states and Federal agencies from collecting natural
    resources damages from DoD when its contamination injures sensitive
    public resources, including wildlife, fisheries, and recreational
    areas.
         Remove authority to clean up certain chemicals under
    Superfund, since this law uses RCRA's definition of ``hazardous waste''
    to define ``hazardous substances'' under Superfund. However, DoD's
    proposal excludes certain chemicals from RCRA's definition.

                 DOD IS A MAJOR VIOLATOR OF RCRA'S REQUIREMENTS

        In fiscal year 1997 and fiscal year 1998, DoD was cited for 403
    violations of RCRA, nearly three times more violations than the next
    most cited Federal agency.
         In fiscal year 1997, DoD accounted for 75 percent of all
    RCRA enforcement actions against Federal facilities.
         In fiscal year 1998, DoD accounted for 66 percent of all
    RCRA enforcement actions against Federal facilities.
         In 1994, EPA cited Fort Richardson, in Alaska, for 12
    violations of RCRA, including illegal storage of hazardous waste;
    failure to make hazardous waste determinations; inadequate closure,
    contingency and waste analysis plans; and failure to obtain physical
    and chemical analysis.

      DOD'S PROPOSAL COULD WEAKEN RCRA'S ABILITY TO PROTECT PUBLIC HEALTH

        DoD's proposal could largely exempt the department from RCRA's most
    effective provisions for protecting public health. It could take away
    the most effective too that EPA, states, and citizens have for
    enforcing laws that protect communities from hazardous waste. Section
    2019(a) of DoD's proposal would exempt ``explosives, unexploded
    ordinance, munitions, monition fragments, or constituents thereof''
    from the definition of ``solid waste'' under numerous circumstances.
    RCRA uses ``solid waste'' to define ``hazardous wastes'' regulated
    under RCRA's Subtitle C. DoD's proposal could:
         Weaken protections against more than 20 dangerous
    chemicals that are linked to cancer, birth defects, and damage to the
    heart, liver, and kidneys.
         Exempt private businesses and DoD facilities that conduct
    ``research, development, testing, and evaluation of military munitions,
    weapons, or weapon systems'' from RCRA's regulations.
         Undermine EPA's authority to order DoD to clean up
    contamination that ``may present an imminent and substantial
    endangerment'' to human health or the environment.
         Eviscerate the ability of citizens and states to force DoD
    to clean up contamination that ``may present an imminent and
    substantial endangerment'' to human health or the environment.
         Preempt State authority to increase protections beyond
    RCRA's minimum Federal standards.
         Preempt State and EPA authority at cleanup contamination
    at military ranges (active, inactive, closed, and transferred) and at
    sites other than military ranges.
         Preclude RCRA cleanups of onsite and offsite contamination
    if DoD merely claimed to be ``addressing'' the threats under Superfund,
    which could include studying the contamination without undertaking any
    cleanup activities.

        STATE AND FEDERAL ENVIRONMENTAL OFFICIALS OPPOSE DOD'S PROPOSAL

        The Environmental Council of the States (comprised of State
    environmental Commissioners, Directors, and Secretaries), National
    Governors' Association, National Association of Attorneys General,
    National Conference of State Legislatures, and the Association of State
    and Territorial Solid Waste Management Officials all oppose DoD's
    current proposal.
     superfund and rcra already give dod case-by-case exemptions from laws
        Superfund and RCRA both have provisions that allow DoD to be exempt
    from these laws.
         Superfund Section 120 allows the President to exempt DoD
    from Superfund ``as may be necessary to protect the national security
    interests of the United States.'' The President must notify Congress of
    exemptions and include the reasons for the exemptions.
         RCRA Section 6961 allows the President to exempt DoD from
    RCRA for 1 year if he determines ``it to be in the paramount interest
    of the United States.'' The President can grant additional exemptions
    and must inform Congress of all exemptions and his reasons for granting
    them.
                                     ______

         Responses of Jamie Rapport Clark to Additional Questions from
                                 Senator Smith

        Question 1. You testified that ``in listening to the four gentlemen
    in the previous panel [1] have come to realize that what they have
    proposed isn't going to solve their problem . . . most of the examples
    that they gave would not he resolved by their proposal.'' Please
    explain your thoughts in this regard, given that the four-star officers
    you refer to continue to maintain that their problems would be solved
    by the RRPI.
        Response. Most of the examples of difficulties complying with the
    ESA cited by the Defense Department (e.g., Fort Hood, Fort Bragg) are
    on installations that do not have any designated critical habitat.
    Other ESA provisions, such as the take prohibition, have conic into
    play. Thus, the RRPI, which applies solely to the critical habitat
    provision of the ESA, would not solve most of the problems about which
    DOD complains.
        My discussion of other ESA provisions should not be interpreted at
    a suggestion that nationwide exemptions from these provisions should be
    considered. Such exemptions would, like the proposed critical habitat
    exemption, simply eliminate DOD's incentive to devise creative
    solutions working in tandem with experts at the environmental agencies
    and with the public. As 1 stated in my testimony, Congress should
    encourage DOD to work with other agencies and the public to solve
    readiness and environmental challenges at the local level, taking into
    account local conditions, taking advantage of local wisdom and using
    existing provisions of environmental laws.

        Question 2. You have suggested that early consultations between DoD
    and the EWS would address the concerns raised by DoD as far as the
    Endangered Species Act is concerned. However, the DoD disagrees
    because, among other reasons, such consultations would in no way
    address the problem presented by later-raised cults from private
    organizations. If you disagree with this analysis, please explain
    exactly why you disagree with the President and the Secretary of
    Defense on this issue.
        Response. Early consultation between the DoD and the FWS through
    its management plans have already successfully addressed concerns
    raised by the DoD in regard to the. ESA and, hi each case, The
    resolution negotiated by the agencies has not been challenged by
    private organizations. Camp Lejeune in North Carolina and the red-
    cockaded woodpecker, and Mokapu Peninsula on the Marine Corps Base
    Hawaii and endangered waterbirds are two examples of where the DoD and
    FWS worked together early to prevent problems with regard to endangered
    species. And at the Marine Corps Air Station Miramar. California, in an
    effort to protect the station's ten endangered species, the FWS
    initially proposed to designate 65 percent of Miramar's land area as
    critical habitat. FWS later exercised its discretion under existing law
    and withdrew this proposed designation after the Marine Corps
    established a framework to protect and preserve the station's
    endangered species, guaranteed the plan would be implemented, and
    defined measures to judge the plait's effectiveness. According to DOD,
    in so doing, 11the plan made military readiness activities and
    endangered species protection mutually compatible.''

        Question 3. In your written testimony you state your view that the
    issue at hand is a dichotomy; e.g., either the Defense Department will
    ``continue to build on its long record of wildlife conservation and
    respect for environmental laws and protections'', or it will ``take on
    a new role as an unregulated despoiler of our environment''. In light
    of the compelling evidence presented in the first panel for the need
    for clarifications to existing law do you still believe upon reflection
    that of the Congress enacts these clarifications the result will mean
    America's military will, necessarily, become an unregulated despoiler
    of our environment?
        Response. These exemptions (not ``clarifications'') could very well
    lead to this result. DOD manages approximately 25 million acres of
    land. These lands are home to at least 300 federally listed species.
    Providing nationwide exemptions to DoD would simply eliminate DOD's
    incentive to devise creative solutions working together with experts at
    the environmental agencies and with the public, to the detriment of
    listed species.

        Question 4. Given the very modest nature of the clarifications the
    Administration is requesting, and the fact that no State has ever
    initiated enforcement litigation (to my knowledge) regarding an
    operational range, please explain why you characterize these requests
    for clarifications of certain laws as ``an attack on environmental
    laws.''
        Response. The proposed exemption to the Endangered Species Act
    would be precedent setting and would not he ``modest.'' In time, other
    agencies or industries could also request similar exemptions. Sections
    7(a)(l), 7(a)(2), 7(j) and 4(b) of the ESA already provide
    opportunities for the FWS and DoD to work together to protect
    Endangered Species and achieve military readiness objectives. Thus,
    providing this dangerous, precedent setting exemption is unwarranted.
        States do not enforce the ESA, so there is no relevance to the fact
    that states have not initiated enforcement litigation regarding an
    operational range. The two Federal wildlife, agencies, on the other
    hand, have worked to achieve ESA compliance on operational training
    ranges.

        Question 5. In your testimony, you consistently refer to the
    clarifications contained in the Readiness and Range Preservation
    Initiative as ``exemptions''. Isn't it true that neither the word
    ``exemption'' nor ``exempt'' is contained in the RRPI? Furthermore,
    isn't it also true that the RRPI is merely clarifying certain
    definitions, such as ``critical habitat'' under the ESA, or ``solid
    waste'' under CERCLA?
        Response. The only feature of the RRPI to be enacted into law was
    the Migratory Bird Treaty Act provision, which was characterized in the
    Defense Authorization Act as an ``exemption.'' With regard to the ESA,
    the Defense Department's request is to effectively exempt DOD from any
    obligation to comply with the critical habitat provisions of the ESA if
    certain minimal steps are taken.

        Question 6. You referred to the recent GAO report. isn't it true
    that this report was completed save only for the inclusion of the
    Department's remarks, prior to the release of the RRP1 and therefore,
    did not address it specifically? Isn't it also true that the GAO report
    reaches the unequivocal conclusion that our ``military services have
    lost training range capabilities and can he expected to experience
    increased losses in the future absent efforts to mitigate
    encroachment''?
        Response. Although the GAO report does not address the RRPI
    specifically, it addresses the environmental compliance issues raised
    by the RRPI and concludes that DOD has not met its burden of proving
    that this is a significant hindrance to training. The GAO'S conclusion
    that ``military services have lost training range capabilities and can
    he expected to experience increased losses in the future absent efforts
    to mitigate encroachment'' does not specify environmental laws as the
    encroachment issue. Encroachment is caused by many factors. Weakening
    environmental laws will not solve the encroachment problem.

        Question 7. You testified that ``the Defense Department has
    provided no evidence that environmental laws are at fault for any of
    the gaps in the readiness that may exist today. Yet minutes before you
    gave this testimony, for example, you heard General Keane testify that
    the Army's fighting readiness has been impeded by environmental laws
    which require at Ft. Bragg a 200-foot buffer around every tree where a
    migratory bird might nest, no bivouacking or occupation of the nearby
    area for more than 2 hours, no use of camouflage, no weapons firing
    other than 762 and 50 caliber blank ammunition, no use of generators,
    no use of riot agents, no use of smoke grenades, and no digging. He
    testified that the impact of that is profound. Since you heard that
    testimony and then testified yourself that the Department has provided
    ``no evidence,'' I must ask if it is your contention that General Keane
    was misleading by this testimony? If so, please state with as much
    particularity as you are able, all facts that support such a
    contention.
        Response. I am not aware of any law that requires the Army from
    placing a 200-foot buffer around every tree where a migratory bird
    might nest. Perhaps General Keane was referring to the limitations on
    activities around the nests of the endangered red-cockaded woodpecker.
    These ``work arounds'' were negotiated between DOD and FWS, and have
    repeatedly been characterized by DOD as a success story that has
    allowed DOD to train effectively while conserving wildlife.
        In fact, the United States Army Environmental Center, Environmental
    Update, Training Lands Management, by Mike Cast, in Winter 2000,
    reported the following: ``As a result of these practices and protection
    from development, FORSCOM installations such as Fort Bragg, NC and Fort
    Stewart, GA, harbor old-age stands of longleaf pine and provide some of
    the best habitat available for federally listed species such as the
    red-cockaded woodpecker, which builds its nesting cavities in this
    species of pine. Training can he conducted in well maintained red-
    cockaded woodpecker habitat, and that does enhance training.''

        Question 8. You testified that ``the Defense Department has
    provided no evidence that environmental laws are at fault for any of
    the gaps in the readiness that may exist today''. Yet minutes before
    you gave this testimony, for example, General Williams testified that
    ``the Marine Corps wanted to try to quantify the impact of
    environmental constraints on readiness We took a unit in . . . the
    amphibious assault, ,from. ship to ship and then movement beyond the
    beach, and we listed all the mission essential tasks that that unit is
    supposed to be able to perform in order to he fully trained . . . we
    just looked at non-firing tasks. And about 60 to 70 percent of those
    tasks, we can't perform at Camp Pendleton. Since you heard that
    testimony and then testified yourself that the Department has provided
    ``no evidence'', I must ask if it is your contention that General
    Williams was misleading by this testimony. If so, please state with as
    much particularity as you are able, all facts that support such a
    contention.
        Further research is needed on the meaning of General Williams'
    statement that ``68 to 70 percent of certain non-firing tasks could not
    be performed.'' My understanding is that certain activities concerning
    toxic pollution are prohibited (e.g., disposal of oil), but that
    activities in and around wildlife habitat are allowed, subject to
    reasonable restrictions on time, place and manner. As stated in the
    Range and Training Regulations Environmental Operations Map for Camp
    Pendleton, dated September 2001, ``It is essential to consider
    environmental concerns while planning training operations and
    exercises. Proper planning will preserve all training facilities for
    future generations of Marines; therefore it is essential that training
    units adhere to the [environmental protection] provisions of this
    Chapter.''

        Question 9. Attached to your written testimony is a document which
    states that the ``National Governor's Association, National Association
    of Attorneys General, National Conference of State Legislatures'' among
    others, ``all oppose the DoD's current proposal''. Is it your
    contention that this is a truthful statement? If so, please provide
    copies of the resolution of each of these organizations expressing
    their formal position on the RRPL.
        Response. Attached to this document are letters and resolutions
    from the organizations stating opposition to the DoD's proposal.

        Question 10. Isn't it true that the purpose of the 1918 Migratory
    Bird Treaty Act was to stop the intentional hunting of migratory birds
    for commercial reasons such as feathers for ladies. hats? The recent DC
    District Court case held that the MBTA as written prohibits both
    intentional and unintentional harm to migratory birds. Isn't this a
    perversion of congressional intent? Wouldn't the RRPI merely restore
    the original intent of the Act?
        Response. The Migratory Bird Treaty Act protects migratory birds
    from a variety of threats, including but nor limited to hunting. Under
    the Act, it is illegal, unless permitted by regulations, to ``pursue,
    hunt, take, capture, kill, attempt to take, capture or kill, possess,
    offer for sale, sell, offer to purchase, purchase, deliver for
    shipment, ship, cause to he shipped, deliver for transportation,
    transport, cause to be transported, carry, or cause to be carried by
    any means whatever, receive for shipment, transportation or carriage,
    or export, at any time, or in any manner, any migratory bird, included
    in the terms of this Convention . . . for the protection of migratory
    birds . . . or any part, nest, or egg of any such bird.'' (16 U.S.C.
    703).
                                     ______

                                  ATTACHMENTS

                       The Environmental Council of The States,
                                           Washington, DC, May 1, 2002.
    Hon. Bob Stump, Chairman,
    House Armed Services Committee,
    U.S. House Committee on Armed Services,
    Washington, DC.
        Dear Chairman Stump: Today your committee is scheduled to work on
    H.R. 4546 Department of Defense (DOD) authorizing language pertaining
    to factors that may impact DOD's military readiness. This letter is to
    express the concerns of the States regarding possible changes to
    environmental laws.
        The Environmental Council of the States (ECOS) is a non-profit,
    non-partisan organization comprised of State environmental
    Commissioners, Directors, and Secretaries throughout the country. This
    group represents the leadership of State and territorial environmental
    programs and is responsible for making certain our nation's air, water,
    and environment are clean, safe, and protected.
        At a recent ECOS meeting, Department of Defense Principal
    Undersecretary of Environment and Installations, Mr. Philip Grone, and
    other DOD personnel, presented proposed legislative language entitled
    ``Readiness and Range Preservation Initiative'' which had been
    presented in the Subcommittee on Military Readiness. Our member states
    had a lively discussion on this legislation.
        ECOS members strongly support military readiness, adequate
    training, and preparation for military personnel. Our members recognize
    that military readiness requires the Department of Defense (DOD) to
    train armed forces under realistic conditions, including field testing
    and evaluating weapons systems and other military equipment. We further
    recognize that ``external'' factors such as urban and suburban sprawl
    and increasing wildlife habitat pressures have affected DOD's training
    and equipment testing and evaluation activities. In addition, there
    have been isolated cases where environmental regulation requirements
    may have affected military operations. However, we also note that there
    are military activities with recognized environmental impacts. The
    issue raised by this proposed legislation is how to appropriately
    balance DOD's necessary training and readiness activities with ensuring
    protection of human health and the environment and avoiding a legacy of
    environmental problems. It is a proper and timely subject for
    discussion and development of public policy.
        States have the challenging job of front-line implementation of our
    nation's environmental pollution laws. States have a long history of
    working cooperatively with DOD to resolve competing needs. Further,
    existing laws provide flexibility to accommodate DOD's current ``short-
    terms'' concerns about regulatory impacts to military training and
    readiness activities. In particular, ECOS membership is concerned with
    the earlier version containing proposed changes to the Resource
    Conservation and Recovery Act; the Comprehensive Environmental
    Response, Compensation, and Liability Act; and the Clean Air Act.
    Although the Readiness Subcommittee has removed sections pertaining to
    these laws and the version before your committee contains legislation
    addressing other laws, these three are at the core of ECOS member
    agencies' missions. All three laws already have provisions for the
    President or Secretary of Defense to exempt DOD from its statutory and
    regulatory requirements upon a finding that it is necessary for
    national security or in the interests of the United States. These three
    laws also contain other provisions providing for flexibility.
        In the short time that states have had to evaluate the legislation,
    serious questions have been raised about the changes to the Resource
    Conservation and Recovery Act and the Comprehensive Environmental
    Response, Compensation, and Liability Act, both of which relate to
    active and closed DOD facilities. At our meeting, DOD representatives
    were unable to offer examples of problems with State regulators that
    would support the need for the proposed changes. In fact, the concern
    appeared to be more directed toward private citizens' suits brought
    under Federal law. ECOS is particularly concerned about unintended
    consequences that may occur by changing the definition of solid waste
    and the associated impacts to the authorities states use to provide
    consistent application of federally delegated environmental programs
    and State laws.
        Changes proposed by the Readiness and Range Preservation Initiative
    to the Clean Air Act are also problematic. Congress directed the
    Federal Government to comply with Federal, State, and local
    requirements for control and abatement of air pollution to the same
    extent that any person is subject to such requirements. States have
    relied upon that requirement in crafting the mandated air quality plans
    for complying with national air standards. The proposed changes will
    force States into a difficult position of meeting national air
    standards with all other participants--industry, local infrastructure,
    State and Federal agencies--while temporarily exempting DOD.
        ECOS believes that changes to environmental laws should be
    carefully considered, including holding hearings in the committees with
    jurisdiction over these regulations. While DOD has stated that this
    legislation is narrow in scope and is intended to address issues that
    apply only to operational combat ranges necessary for military
    readiness, ECOS members' initial analysis is this legislation is overly
    broad and may go beyond its stated intent. If the initial proposed
    changes to RCRA, CERCLA and CAA were to move forward in legislation it
    may actually undermine the very real progress DOD has made in complying
    with environmental regulations and stewardship with little improved
    support of military readiness. We are also concerned with this Federal
    action encouraging local bases to seek further exemptions to State laws
    through State legislation, the first example of which has just been
    introduced in Alaska.
        ECOS appreciates that the pressures of urban and suburban sprawl
    and increasing demands for wildlife habitat are impacting DOD's
    readiness ability. ECOS is supportive of establishing buffer zones and
    other conservation easement mechanisms to solve this problem. Indeed,
    ECOS is encouraged to see this type of language in the Readiness and
    Range Preservation Initiative and supports the Subcommittee's effort to
    create tools for States and DOD to tackle this difficult issue.
        In closing, while we are very supportive of our military's efforts
    and recognize the need to train and maintain military readiness, we do
    not believe DOD has made a convincing case for the proposed changes to
    RCRA, CERCLA, and CAA. ECOS is willing to immediately begin work with
    DOD to solve the concerns and issues they have raised regarding these
    environmental laws, but we remain concerned with the authorizing
    language before you.
        Today, States conduct over 75 percent of all the environmental
    inspections, collect nearly 95 percent of environmental monitoring
    data, and are responsible for all State lands and resources. Therefore,
    ECOS asks that Congress discuss any proposed changes to environmental
    laws with full participation by interested parties to examine the
    merits, impacts, and accommodations that should accompany such
    fundamental changes. ECOS encourages Congress to have this discussion
    in the committees with jurisdiction over the relevant environmental
    laws as well as the Armed Services Committee. ECOS stands ready to work
    with these committees and DOD to ensure development of sustainable
    range management strategies and jointly work out the necessary long-
    term solutions to ensure that our military has adequate training
    ranges.
                Sincerely,
                                         Michele Brown,
                                       ECOS-DOD Forum Co-chair,
         Commissioner, Alaska Department of Environmental Conservation.

                                     Ron Hammerachmidt,
                                                ECOS President,
                 Director, Kansas Department of Health and Environment.
                                     ______

                     National Association of Attorneys General,
                                         Washington, DC, April 1, 2002.
    Hon. Joel Hefley, Chairman,
    U.S. House of Representatives,
    Committee on Armed Services,
    Subcommittee on Military Readiness,
    Washington, DC.
        Dear Chairman Hefley: I want to express my appreciation for your
    consideration in keeping the record open for your March 14, 2002
    Subcommittee on Military Readiness hearing until Friday, April 5, 2002.
    Due to the short timeframe for submitting these comments, we have not
    been able to compile comprehensive comments from all of the states. We
    are aware of the Committee's continuing interest in this subject, and
    will provide you additional relevant information as it becomes
    available.
        We believe strongly, as the primary implementers of the nation's
    pollution control laws, that in any forum involving Department of
    Defense exemptions to environmental laws the State perspectives should
    clearly be on the record. In that regard, I have attached several items
    to be added to the record of that hearing in order to preserve the
    state's point of view. First, please find a statement from Colorado
    Attorney General Ken Salazar. In addition, please add to the record the
    following Attorneys General sign-on letters describing some of the
    relevant concerns of State Attorneys General:
        (1) June 6, 2001 letter signed by 30 State Attorneys General to the
    Senate Committee on Armed Services, House Committee on Armed Services,
    Senate Environment and Public Works Committee and the House Committee
    on Energy and Commerce Re: Encroachment--Federal Facilities, and
        (2) May 18, 2000 letter signed by 21 State Attorneys General to
    Jacob J. Lew, Director, Office of Management and Budget regarding ``the
    range rule'' for unexploded ordnance, and
        (3) July 12, 1995 letter signed by 37 State Attorneys General and
    11 Governors to President Clinton regarding the cleanup of Federal
    facilities including their key principles and reform proposals attached
    thereto.
        Thank you again for the courtesy of keeping the record open to
    submit this information. If you have any questions or concerns, please
    feel free to contact Blair Tinkle, our Legislative Director, at 202-
    326-6258.
        Sincerely,
                                                          Lynn M. Ross.
                                     ______

    State of Colorado Department of Law Office of the Attorney
                                                       General,
                                             Denver, CO, April 1, 2002.
    Hon. Joel Hefley, Chairman,
    U.S. House of Representatives,
    Committee on Armed Services,
    Subcommittee on Military Readiness,
    Washington, DC.
        Dear Chairman Hefley: Thank you for the opportunity to submit
    written testimony regarding the impact of environmental regulation on
    military readiness. Enclosed are several pieces of correspondence that
    the National Association of Attorneys General has sent over the years.
    This correspondence is indicative of the states' concerns with Federal
    agencies'--and more specifically, the Department of Defense's--
    compliance with State and Federal environmental laws. In addition to
    this correspondence, we would like the Committee to consider the
    following observations.
        First, we absolutely support maintaining our Nation's military
    preparedness. We recognize that maintaining military readiness requires
    that the armed forces receive regular realistic training, and that the
    military be able to test and evaluate weapons systems and other
    military equipment under realistic conditions. We also recognize that
    ``external'' factors such as urban and suburban sprawl, have impacted
    the Department of Defense's training, testing and evaluation
    activities. And we are aware of isolated cases where requirements
    imposed under the pollution control laws may have affected military
    operations. At the same time, we are concerned that DOD's training,
    testing and evaluation activities obviously do have environmental
    impacts. The question is how to conduct these activities in a manner
    that maintains readiness while ensuring protection of human health and
    the environment.
        The states are the primary implementers of the nation's pollution
    control laws. We think that the existing framework of these laws is
    sufficiently flexible to provide for balancing of environmental and
    readiness concerns. There is a great deal of flexibility built in to
    the different regulatory programs, as the Department's own testimony
    has demonstrated. As we understand the Department's testimony, it is
    concerned about the cumulative impact of environmental, health and
    safety restrictions on military readiness, and fears that these impacts
    will increase. However, the environmental laws already allow either the
    President or the Secretary of Defense to exempt the Department of
    Defense from their statutory and regulatory requirements on a case by
    case basis. All that is required is a finding that doing so is
    necessary for national security or is in the paramount interests of the
    United States, depending on the particular statute at issue. Such
    exemptions exist under the Clean Air Act, Clean Water Act, Resource
    Conservation and Recovery Act (RCRA), Comprehensive Environmental
    Response, Compensation and Liability Act, and Safe Drinking Water Act.
    We understand that to date, these exemption provisions have only been
    invoked twice, and neither instance involved military training
    activities.
        Other provisions of the environmental laws provide further
    flexibility to balance environmental protection with other Federal
    priorities. For example, in 1992, Congress provided EPA authority to
    issue administrative orders under RCRA to other Federal agencies, but
    required that such agencies have the opportunity to confer with the EPA
    administrator before any such order became final. Congress passed a
    similar amendment to the Safe Drinking Water Act. And Congress has
    already spoken to the balance between environmental protection and
    management of waste military munitions. In 1992, Congress rejected a
    bill that would have authorized the Secretary of Defense to promulgate
    regulations governing the safe development, handling, use,
    transportation, and disposal of military munitions. Instead, it
    directed the Environmental Protection Agency to consult with the
    Secretary of Defense prior to issuing regulations that define when
    military munitions become wastes for purposes of RCRA.
        Finally, in 1997, Congress created a procedure that allows the
    Secretary of Defense to temporarily suspend any pending administrative
    action by another Federal agency that the Secretary determines
    ``affects training or any other readiness activity in a manner that has
    or would have a significant adverse effect on the military readiness of
    any of the armed forces or a critical component thereof.'' During the
    suspension, the Secretary and the head of the other Federal agency must
    consult attempt to mitigate or eliminate the adverse impact of the
    proposed action on readiness, consistent with the purpose of the
    proposed action.
        We understand that the Department plans to propose legislative
    changes to the environmental laws. We believe that any such changes
    should be considered very carefully. The history of Federal facility
    compliance with environmental laws demonstrates that statutory
    constructs that rely on voluntary efforts by Federal agencies to
    achieve environmental objectives simply do not work. Even when Congress
    has clearly stated its intent that Federal agencies be subject to State
    and Federal environmental laws, the Federal agencies have frequently
    resisted efforts to require them to comply. The history of the Clean
    Air Act provides a good example. Before 1970, the Clean Air Act
    encouraged, but did not require, Federal agencies to comply with its
    mandates. Congress determined that this voluntary system was not
    working, and in 1970 amended the act to require Federal agencies to
    comply. Specifically, Congress added section 118 to the Clean Air Act.
    The first sentence of the section provides, in relevant part:
             Each department, agency, and instrumentality of . . . the
            Federal Government . . . shall comply with Federal, State,
            interstate, and local requirements respecting control and
            abatement of air pollution to the same extent that any person
            is subject to such requirements.

        42 U.S.C. Sec. 1857f. The 1970 amendments also required the
    Environmental Protection Agency to establish ambient air quality
    standards. Each State had to submit plans describing how the State
    would meet these standards. Kentucky, like most states, submitted a
    plan that relied on permits as the sole mechanism to establish
    emissions limitations for air pollution sources, and to establish
    schedules for achieving compliance with the emissions limitations.
    Kentucky sought to require several Federal facilities (including the
    Army's Fort Knox, Fort Campbell and others) to obtain permits. The
    Federal agencies refused, arguing that section 118 of the Clean Air Act
    did not obligate them to comply with ``procedural'' requirements, such
    as the need to obtain State permits. Without the permit, there was no
    way for Kentucky to control air pollution from these Federal
    facilities. The matter went to court, and ultimately the Supreme Court
    agreed with the Federal agencies. Shortly thereafter, Congress amended
    the Clean Air Act to require Federal agencies to comply with procedural
    requirements, including permit requirements.
        Even when Congress has plainly required Federal agencies to comply
    with State and Federal environmental laws, the Federal agencies have
    worse compliance records than private industry. The sole exception is
    under RCRA. In 1992, the Supreme Court held that Federal agencies were
    not subject to penalties for violating State hazardous waste and water
    quality laws. That same year, Congress amended RCRA to make Federal
    agencies subject to penalties for violating hazardous waste laws. Since
    1992, DOD and other Federal agencies have steadily improved their RCRA
    compliance rates, to the point where they now have a higher compliance
    rate than private industry.
        This salutary trend stands in stark contrast to Federal agency
    performance under the Clean Water Act. Unlike RCRA, Congress has not
    amended the Clean Water Act to subject Federal agencies to penalties
    for violating Clean Water Act requirements. The percentage of DOD
    facilities in significant non-compliance with the Clean Water Act has
    steadily risen over time. Similarly, DOD has long had a higher rate of
    significant noncompliance with Clean Water Act requirements than
    private industry, or even civilian Federal agencies.
        Thus, we are concerned that providing the Department of Defense
    statutory exemptions from environmental laws will have adverse impacts
    on human health and the environment. But such exemptions will have
    other undesirable impacts as well, substantially increased costs to
    ``remedy'' environmental contamination, and greater constraints on use
    of training ranges. As we stated in our May 31, 2001 letter regarding
    encroachment, prevention is by far the most effective and least costly
    means of ensuring environmental protection. It also is a necessary
    component of sustainable range management. The Department, and the
    Nation, cannot afford to repeat the experience at the Massachusetts
    Military Reservation (MMR) at other ranges around the country. There,
    decades of military training activities have contaminated over 60
    billion gallons of groundwater in the sole source aquifer for Cape Cod.
    This contamination led EPA to suspend most live-fire military training
    at the MMR artillery range pursuant to its Safe Drinking Water Act
    authority. Subsequently, the State of Massachusetts and the Army
    reached an agreement, now embodied in State law, that balances military
    training needs and environmental protection. The plain lesson here is
    that ignoring environmental consequences of military training benefits
    neither the environment, public health, nor military training.
        In conclusion, resolving the increasing pressures on military
    training activities in a manner that protects human health and the
    environment, while ensuring military readiness, demands creative
    thinking. The issues involved are many and complex. They would benefit
    from an open discussion among a full range of affected parties. The
    states, as the primary implementers of the nation's environmental laws,
    must play a key role in arriving at any solutions. We thank the
    Committee for this opportunity to express our views.
                                           Ken Salazar,
                                  Attorney General of Colorado,
                                     NAAG Chair, Environment Committee.
                                     ______

        Association of State Territorial Solid Waste Managment
                                           Officials (ASTSWMO),
                                        Washington, DC, April 16, 2002.
    Hon. W.J. ``Billy'' Tauzin, Chairman,
    Hon. John D. Dingell, Ranking Minority Member,
    Committee on Energy and Commerce,
    Washington, DC.

        Dear Messrs.: It is our understanding that there is an emerging
    Department of Defense proposal for modification of a number of basic
    environmental studies designed to provide relief from certain
    requirements in order to facilitate military training. The purpose of
    this letter is to request the assistance of the leadership of the House
    Energy and Commerce Committee in ensuring that there is a thorough
    review of this proposal by each Congressional committee with
    jurisdiction over these environmental statutes. By a thorough review we
    mean legislative hearings with opportunity for testimony by
    knowledgeable expert witnesses representing all sides of the debate,
    who can assist the Congress in assessing the trade-offs and costs of
    the proposal.
        The Association of State and Territorial Solid Waste Management
    Officials (ASTSWMO) is a non-profit, non-partisan organization made up
    of State employees who are responsible for the hazardous waste, solid
    waste, cleanup and remediation, and underground storage tanks programs
    of the State and Territories of the U.S. Our members generally have
    engineering and science backgrounds, and implement both delegated
    federal wastes and cleanup programs, as well as parallel State
    programs. They have hundreds of years of collective experience in
    expert program implementation and believe it is their obligation to
    share their professional views with members of Congress with the
    responsibility for decisions affecting our national environmental
    statutory framework.
        We have examined an early draft of the ``Sustainable Defense
    Readiness and Environmental Protection Act'' (SDREPA) that we
    understand to be under development by DoD. Insofar as it addresses the
    hazardous waste regulatory and cleanup implications of the Resource
    Conservation Recovery Act/Solid Waste Disposal Act and the
    Comprehensive Environmental Response, Compensation, and Liability Act,
    we have substantial concerns with the current wording. Understanding
    the motivation of the drafters to seek greater flexibility for military
    training, we believe that it provides insufficient protection for
    citizens and the environment following implementation of these
    requested relief provisions. Our central point is that fundamental
    changes like these should not be made with a legislative vehicle
    developed by and for defense authorizations or appropriations.
        We view this proposal from the historical perspective that past
    military operations have left a legacy of contamination that will take
    billions of dollars and several decades to deal with. Consequently, we
    are very reluctant to amend sound environmental statutes in ways that
    could open the door to new releases to the environment. In the past DoD
    has continually maintained that it has seen compliance and protection
    of natural resources as part of its national security mission, but it
    is difficult to reconcile these kinds of fundamental and far reaching
    changes to environmental statutes with those representations. Our
    experience is that delaying cleanup and compliance with hazardous waste
    laws only increases the eventual cost and difficulty of cleanups. We
    took DoD's promise of its intent to become a model of environmental
    compliance seriously, and we think that any changes made to enhance
    military readiness must be accomplished without damages to that goal.
        Statutory change that will affect environmental impacts on
    populations and the environment should be made in the same
    environmental arena where those statutes were created and debated. For
    that reason, we urge you to exercise your jurisdiction over these
    proposed modifications, conduct hearings, take diverse testimony, and
    make the final judgments about the efficacy of these changes with full
    input, debate and understanding of their long-term effects on the
    country. Like all good citizens, we too want to see military training
    enhanced and improved, and we are willing to subject our analysis and
    suggested adjustments to the full range of public dialogue. We believe
    the potential consequences of this legislation are of such significance
    that all parties should be willing to undergo this same scrutiny.
        We are confident that with full analysis and debates, appropriate
    modifications can be found and made to allow attainment of maximum
    force readiness without long-term cost to the nation's environment and
    the safety of its citizens. We trust that you will seek such a course
    of legislative balance as this DoD proposal is eventually introduced in
    the Congress. Thank you for considering this request and for your
    continued interest in our national environment.
                Sincerely,
                                             Mark P. Giesfeldt,
                                                     ASTSWMO President.
                                     ______

                   National Conference of State Legislatures
                   Environment and Energy and Transportation
                           Federal Facilities Cleanup

        Federal and State governments are together faced with managing
    large quantities of hazardous, radioactive, and mixed (a combination of
    hazardous and radioactive materials) waste and materials that are
    located at numerous Federal facilities throughout the United States.
    Some of these wastes and materials have been improperly handled over
    the years, necessitating both waste management and environmental
    restoration at these facilities. These facilities were crucial to the
    nation's production of nuclear weapons and overall defense strategy,
    and now are in need of a plan for conscientious and thorough
    environmental reclamation. These facilities, which belong to the U.S.
    Department of Energy and the U.S. Department of Defense, each have
    specific environmental needs that must be addressed.
        Radioactive and hazardous wastes have been generated since 1942 by
    the development, production, and maintenance of uranium, plutonium, and
    nuclear warheads by the Department of Energy's network of nuclear
    weapons production facilities, including its national research labs.
    Substantial amounts continue to be generated, even as the environmental
    restoration effort progresses. This includes transuranic waste (TRU),
    which the Department of Energy ultimately plans to dispose of at the
    Waste Isolation Pilot Project (WIPP) near Carlsbad, New Mexico, as well
    as the high-level radioactive waste generated by the production of
    nuclear weapons. This high-level waste will be disposed of in the same
    repository that the Department of Energy will operate for the disposal
    of spent fuel from commercial nuclear power plants. Significant amounts
    of low-level radioactive waste and mixed wastes were also generated
    from nuclear weapons production, as well as general maintenance
    activities, at military bases. This waste now requires disposal.
        Some wastes are currently in inadequate interim storage facilities
    and pose potentially serious long-term threats to public health and the
    environment. There are also safety and equity concerns surrounding
    transportation and ultimate disposal of waste. The states insist that
    the cleanup and disposal programs advance in an expeditious manner.
        Other Federal facilities that have generated waste and may remain
    unsafe for humans include military bases and formerly used defense
    sites operated by the Department of Defense. States are also committed
    to the cleanup and conversion of closed military bases to other
    beneficial uses as soon as possible. NCSL encourages the Department of
    Defense to lessen the impacts of closing these facilities by entering
    into partnerships with business and other private interests in order to
    turn them into sites of commerce and development.
        In 1992, Congress enacted the Federal Facilities Compliance Act
    which waived the doctrine of sovereign immunity and allowed partial
    State environmental regulation at Federal facilities. NCSL firmly
    supports this principle. Furthermore, NCSL believes that:
         The Federal Government should be responsible for the
    cleanup of Federal facilities. There should be coordination among the
    Department of Energy, Department of Defense, and the U.S. Environmental
    Protection Agency with State regulatory agencies to insure that the
    cleanup of these facilities is properly and efficiently managed.
         The Federal Government should be subject to all State laws
    governing the cleanup of hazardous and radioactive waste materials.
         Department of Energy facility sites should continue to be
    incorporated into the National Priority List according to the severity
    of the risk they pose, but cleanup should be independent of Superfund
    moneys.
         The Department of Energy should continue to use the
    contract review process to provide effective oversight and for
    evaluating integrated contracts for cost accountability.
         Congress should provide for sufficient long-term funding
    for the effective and timely cleanup and disposal of existing and
    future wastes. Cost-effective solutions must be developed and
    implemented by Federal agencies to meet cleanup standards that protect
    human health and the environment. Congress must fund and Federal
    agencies must implement an aggressive research and development program
    to develop and to put into place the technology necessary to address
    the cleanup situation at all Federal facilities.
         Cleanup work must be accomplished in strict compliance
    with Federal facility agreements, Federal laws and regulations.
    Congress should give State and Federal regulators complete enforcement
    authority necessary to ensure such compliance. For those sites that do
    not require extensive cleanup, a future use and owner should be
    identified as quickly as possible in order to return the affected land
    to productive use.
         States and Indian tribes must have a continuing,
    substantive role in the planning and oversight activities of the waste-
    management effort. The Department of Energy must recognize that
    cultural resources and artifacts may be present on DOE sites, and
    should partner with affected Indian tribes to identify and mitigate
    impacts to those resources. The general public must also be involved in
    the decisionmaking process.
         Whenever possible, pollution prevention practices should
    be followed and recovered materials should be recycled or reused.
         As it will be necessary for waste to be transported across
    state-lines to waste storage and disposal facilities, all
    transportation must be done in compliance with State and Federal safety
    procedures for the shipping of hazardous, radioactive, and mixed
    wastes. States must play an integral role in evaluating the safety of a
    particular method of transportation and must be continually informed
    about the status waste movement and storage.

                           U.S. DEPARTMENT OF ENERGY

        Furthermore, NCSL recognizes the work of the Department of Energy's
    Office of Environment Management in developing Accelerating Cleanup:
    Focus of 2006, a comprehensive, strategic plan to characterize and
    prioritize the long-term cleanup and management of wastes at all
    Department of Energy facilities. NCSL urges the continued
    implementation of the plan, and supports the following:
         A firm commitment to a cleanup schedule, including
    aggressive but realistic milestones for all activities. Action should
    be taken to manage Federal radioactive, hazardous, and mixed waste
    sites as soon as possible. Studies should be kept to a minimum.
         Federal cleanup efforts must be conducted in full
    consultation with the affected States and affected Indian tribes.
    Cleanup efforts should begin with site-specific plans which can then be
    used to develop a national plan for future cleanups.

                           U.S. DEPARTMENT OF DEFENSE

        NCSL will continue to work with the Federal Government in the
    development of site-specific cleanup plans. State legislators are
    interested in the timely cleanup and conversion of bases to lessen the
    financial impact on the State and local community from the closure of a
    military facility. The Department of Defense should establish an
    aggressive cleanup schedule for military facilities, or develop options
    for the transfer of land to new owners who agree to clean up the site
    before developing it for future use. The Department of Defense and any
    future owners should be subject to all State laws governing the cleanup
    of hazardous and radioactive waste materials. All cleanup efforts
    should be conducted in full consultation with affected states.
        Adopted: August 2001
                                     ______

                         National Governors Association

                                POLICY POSITION

                             NR-4. SUPERFUND POLICY

    4.1 Preamble
        Superfund, the Comprehensive Environmental Response, Compensation,
    and Liability Act (CERCLA), is under debate in Congress. In recent
    years, Superfund has come under increasing scrutiny by the U.S.
    Environmental Protection Agency (EPA), states, environmental groups,
    and the business community. Although these stakeholders often have
    widely divergent views about what is right and wrong with Superfund and
    how it should be changed, they all share concerns about the efficiency,
    effectiveness, and equity of Superfund cleanups. Clearly, a variety of
    legislative remedies and regulatory and administrative changes are
    needed to improve the program's ability to expeditiously cleanup the
    nation's worst hazardous waste sites. Moreover, the taxing authority
    used to support the trust fund has expired, lending urgency to the need
    to reauthorize the program.
        It is imperative that Congress recognize that under the current
    system; most cleanup work underway is occurring under State programs.
    The 1,300 sites on the National Priority List (NPL) represent only a
    fraction of the nation's cleanup sites. Changes to CERCLA will impact
    both NPL sites and cleanup work moving forward at the State level.
    Therefore, the Governors strongly believe that changes to CERCLA must
    not jeopardize the continued effectiveness of State programs. The
    Governors look forward to participating in this process and to playing
    a major role in the implementation of the national hazardous waste site
    cleanup effort.

    4.2 Streamlining Remedy Selection
        The Governors believe that centralized decisionmaking has
    unnecessarily slowed the Superfund program and that the protection of
    public health and ecosystems demands quicker response actions. The site
    assessment and remedial action programs are particularly cumbersome.
    They should be streamlined by focusing Superfund regulations and
    guidance more on specifying the desired end results of cleanup actions
    and less on the process for determining such results. The Governors
    believe the following changes would result in more cost-effective
    cleanups, a simpler remedy selection process, and a more results-
    oriented approach.
         Cleanup standards should be developed with consideration
    of different types of land uses. When appropriate, feasible, and cost-
    effective, these standards should allow unrestricted use of the
    remediated site.
         ``Presumptive'' remedies should be available to narrow
    analysis of alternative remedies at sites fitting certain land use,
    generic contamination, population, and hydrogeologic conditions.
         States must be able to apply their own standards at sites
    within the State to accommodate specific environmental conditions and
    public views. A more streamlined process should be devised for
    incorporating these standards into the final remedy.
        Risk assessment and cost-benefit analysis can be useful tools in
    selecting cleanup remedies under certain conditions. First, these tools
    should be used only to select among remedies designed to meet a
    specified cleanup standard. Second, the use of risk assessment and
    cost-benefit analysis should be based on generally accepted and uniform
    procedures and should clearly articulate underlying assumptions and the
    impact of alternative assumptions, include public participation, and
    acknowledge nonquantifiable benefits and costs. Third, these techniques
    should not provide opportunities for preenforcement review.

    4.3 State-Federal Role
        The impacts of hazardous waste sites are felt primarily at the
    State and local levels. Therefore, the State role in the program needs
    to be strengthened. States should have a stronger voice in Superfund
    decisionmaking, and EPA should be required to authorize or delegate
    full or partial management of the remedial and emergency removal
    programs to all capable States interested in administering cleanups.
    This will accelerate cleanup, avoid duplication of effort, increase
    efficiency for government and the private sector, reduce transaction
    costs, provide greater certainty in the program, and maximize the
    effectiveness of limited State and Federal resources.
        EPA's role should be to ensure the proper implementation of the
    program throughout the Nation by establishing program requirements for
    delegation. EPA's role also should be to provide technical assistance,
    to manage part or all of the cleanup program at priority sites in
    states choosing not to pursue full authorization or delegation, and to
    ensure that adequate funding is available to states for program
    implementation. Full authorization or delegation should provide the
    maximum flexibility necessary to meet State needs and objectives
    without undue or unnecessary Federal oversight. The process for
    securing delegation should involve as little administrative burden as
    possible. In the case of authorization, which would allow states to
    operate their programs in lieu of the Federal program, CERCLA should
    establish, through statutory provisions, program criteria for a state-
    initiated self-certification process to ensure that the program
    adequately protects human health and the environment. EPA should
    periodically review State performance, instead of involving itself in
    site-by-site oversight.
        CERCLA should be amended to allow interested states to develop a
    statewide response program for all contaminated sites in the state, and
    the administrator of EPA should be required to approve such programs
    within a reasonable period or show cause as to why he or she has not
    done so. EPA approval should be based on reasonable performance
    criteria that are developed with State participation and ensure
    outcomes substantially consistent with the goals of the Federal
    program. Once this program has been approved, the State should be
    permitted to assume full and complete responsibility for management of
    the cleanup effort at all sites listed by the State as requiring
    cleanup. Such responsibility should include establishing priorities,
    undertaking remedial investigations/feasibility studies, selecting
    remedies, selecting contractors, and conducting remedial cleanups.
    Authorized states should nominate sites for Federal cleanup funds, and
    EPA should allocate available funds based on competing national and
    regional priorities.

    4.4 Liability
        The liability scheme employed in any hazardous waste cleanup
    program is critical to the success of that program. The current CERCLA
    liability scheme serves some purposes well. Its effectiveness at
    encouraging better waste management is beyond dispute and it has
    provided resources for waste site cleanups. On the other hand, the
    Governors believe the current system is flawed in several important
    respects. Among others, it too often leads to expensive litigation and
    transaction costs.
        The current liability scheme is under scrutiny in Congress and the
    Governors recognize that the outcome of the debate on Federal liability
    will have significant, direct effects on State cleanup programs. The
    program must be responsive to the needs of all parties, including the
    regulated community, taxpayers, and communities threatened by
    pollution. The Governors would like to work constructively with
    Congress in revising the current scheme.
        Any resulting liability scheme must:
         ensure that adequate funds are available for cleaning up
    waste sites and that no unfunded mandates are created for the states;
         allocate cleanup costs fairly and equitably among those
    responsible for pollution. The liability and transaction costs of small
    contributors and municipalities must be addressed;
         minimize transaction costs to the greatest extent
    possible. We must ensure that changes to the existing system do not
    create new transaction costs or additional opportunities for extensive
    litigation of new or previously well-settled issues that will only
    further delay cleanups;
         encourage pollution prevention and improved waste
    management;
         continue to provide substantial incentives for responsible
    parties to negotiate cleanup settlements before government enforcement
    action is necessary;
         complement existing State programs;
         ensure that sites are cleaned up promptly and efficiently;
    and
         ensure that at non NPL sites, a release of liability under
    State cleanup laws protective of human health and the environment
    constitutes, by operation of law, a release from Federal liability.

    4.5 State Program Grants
        The Governors believe that Superfund cleanup will be faster and
    more effective if states have adequate capacity to plan and implement
    the program. To develop such capacity, the fund should be used to
    support grants to states for program development, site identification
    and assessment, enforcement, site remediation, oversight, and
    administrative expenses at all sites.

    4.6 State Match
        The Governors believe that there is no justification for requiring
    a larger State match for Superfund cleanup at sites that are publicly
    operated than for private sites. CERCLA should be amended to provide
    that the match required for remedial actions is 10 percent at all
    sites, whether or not they are operated by the State or a political
    subdivision. There should continue to be no cost share required for
    removal actions. The 10 percent State share for sites operated by
    states or political subdivisions should be considered a final
    settlement of all liability under CERCLA for the State or political
    subdivision. The Governors support the continued ability of states to
    apply in-kind services toward the State match requirement.

    4.7 Operation and Maintenance Expenses
        CERCLA should be clarified to provide that the response trust fund
    can be used to support operation and maintenance activities during the
    period in which they are required. It should be clear that these
    expenditures are subject to the same State match requirements as
    cleanup actions.

    4.8 Natural Resource Damage Claims
        The natural resource damage provisions of CERCLA allow Federal,
    state, and tribal natural resource trustees to require the restoration
    of natural resources injured, lost, or destroyed as the result of a
    release of hazardous substances into the environment. The Governors
    believe this is an important program that must be maintained. The
    Governors urge Congress to strengthen the program by amending the
    statute of limitations to run 3 years from completion of a damage
    assessment; removing the prohibition on funding natural resource damage
    assessments from Superfund; and providing for judicial review of
    trustee decisions on the administrative record, subject to the
    arbitrary and capricious standard. Further, the Governors urge Congress
    to resist efforts to weaken the program by capping liability for
    natural resource damages at some level per site or eliminating
    compensation for non-use values.

    4.9 Federal Facilities
        The Governors continue to support legislation that ensures a strong
    State role in the oversight of Federal facility cleanups. Federal
    facilities and former Federal facilities are among the worst
    contaminated sites in the Nation. This condition is a legacy of the
    lack of regulatory oversight at these sites for most of their history.
    The double standard of separate rules applying to private citizens and
    the Federal Government continues to have a detrimental effect on public
    confidence in government at all levels. Federal facilities should be
    held to the same standard of compliance as other parties.
        Because EPA cannot effectively enforce CERCLA, or any other
    environmental statute against other Federal agencies, it is critical
    that states have clear authority to do so. Therefore, the Governors
    urge Congress to include in any CERCLA reauthorization bill provisions
    authorizing states to require and oversee response activities at
    Federal facilities, including former Federal facilities.
        In virtually every other environmental statute, Congress has waived
    sovereign immunity and allowed qualified states to enforce State
    environmental laws at Federal facilities. Such authority has been
    provided in the Clean Water Act, the Clean Air Act, and the Resource
    Conservation and Recovery Act. As recently as 1992, when the Federal
    Facility Compliance Act was enacted, Congress once again confirmed its
    commitment to State enforcement of environmental laws at Federal
    facilities. We urge this Congress to ensure that CERCLA also follows
    this sound policy.

    4.10 Voluntary Cleanups
        The Governors believe that voluntary cleanup activities can make a
    significant contribution toward the nation's hazardous waste cleanup
    goals. A number of states have developed highly successful voluntary
    cleanup programs that have enabled sites to be remediated more quickly
    and with minimal governmental involvement. CERCLA should be amended to
    give credit, in the form of a legal release, to volunteers who have
    cleaned a site to protection standards in accordance with a State
    voluntary cleanup law protective of human health and the environment.
    These changes will encourage voluntary cleanup and thus increase the
    number of cleanups completed. In addition, CERCLA should encourage and
    provide clear incentives, such as tax exemptions and liability
    protections for nonculpable parties, for so-called ``brownfields''
    programs at the State level to encourage potentially responsible
    parties, and for prospective purchasers to reuse and redevelop these
    contaminated properties.

    4.11 National Priorities List
        The NPL should be used to facilitate the cleanup of contaminated
    sites and to protect human health and the environment. Governors should
    be given the statutory right to concur with the listing of any new NPL
    sites in their states. The Governors are concerned about proposals to
    legislatively cap or limit the NPL because of differences in capacities
    among states, the complexity and cost of some cleanups, the
    availability of responsible parties, enforcement considerations, and
    other factors. There must be a continuing Federal commitment to clean
    up sites under such circumstances. Emphasis should be on prioritizing
    cleanup fund expenditures to provide the greatest human health and
    environmental benefits. In the event EPA discovers an imminent and
    substantial threat to human health and the environment, it may continue
    to use its emergency removal authority, but any assignment of liability
    must be consistent with liability assigned under State cleanup laws.

    4.12 Remediation Waste
        The Governors support the ability of the states to manage
    remediation waste under State remedial action plans (RAPs) in lieu of
    traditional Resource Conservation and Recovery Act permits and land
    disposal treatment requirements. State RAPs should be developed and
    administered in accordance with State laws pertaining to public
    participation, remedy selection, and State oversight. A streamlined
    authorization process should be established through statutory
    provisions, identifying program criteria for a state-initiated self-
    certification process to ensure that the program adequately protects
    human health and the environment. EPA should periodically review State
    performance, instead of involving itself in RAP-by-RAP oversight.
        Time limited (effective Winter Meeting 2001--Winter Meeting 2003).
    Adopted Annual Meeting 1993; revised Annual Meeting 1995 and Winter
    Meeting 1997; reaffirmed Winter Meeting 1999 and Winter Meeting 2001.

                                   __________
      Statement of Bonner Cohen, Ph.D., Senior Fellow, Lexington Institute

        Good afternoon. My name is Bonner Cohen. I am a senior fellow at
    the Lexington Institute, a non-profit, non-partisan, public policy
    research organization located in Arlington, VA. I want to thank
    Chairman Jeffords, Ranking Member Smith, and the other members of this
    committee for the opportunity to address a subject bearing directly on
    our nation's security.
        In recent years, well-intended environmental statutes designed to
    do such things as protect endangered species and safeguard migratory
    birds have been applied to military installations and activities where
    they come in direct conflict with the proper training of soldiers for
    the deadly business of battle. Everyone in this room knows that the
    military has a unique mission, one that requires the highest state of
    readiness so as to prevent the needless sacrifice of young lives. The
    Joint Chiefs of Staff have come here today, because they have a problem
    that needs to be addressed. Failure to do so in a timely and sensible
    fashion will put the lives of those in uniform at an unnecessary risk.
        This need not be the case. By making a few narrowly focused, but
    vitally important, clarifications to some of our environmental
    statutes, we can continue to provide for environmental progress,
    without jeopardizing military readiness. Let me briefly address three
    areas where, through the application of common sense, improvements can
    be made.
        Marine Mammal Protection Act (MMPA): The Marine Mammal Protection
    Act's definition of ``harassment'' has been a source of confusion since
    it was included in the 1994 amendments to the statute. The statute
    defines ``harassment'' in terms of ``annoyance'' or the ``potential to
    disturb,'' vague standards which have been applied inconsistently and
    are difficult to interpret. Both the Clinton and the Bush
    administration have sought to refine this definition. But efforts by
    the National Marine Fisheries Service to solve the problem through a
    regulatory interpretation of ``harassment'' proved unworkable and would
    have opened the door to substantial litigation. Last year, the Navy,
    the National Marine Fisheries Service (NMFS), and the US Fish &
    Wildlife Service (FWS) developed a definition of ``harassment'' which
    all three agencies could accept. In line with a recommendation put
    forward by the National Research Council, it clarifies that
    ``harassment'' as applied to military readiness activities to mean
    death, injury, and other biologically significant effects, including
    disruption of migration, feeding, breeding, or nursing.
        Until the law is amended to clarify the definition of
    ``harassment,'' the Navy and the NMFS are subject to lawsuits over
    application of that term. Indeed, several groups have already announced
    their intention to challenge the deployment of the Navy's Low Frequency
    Active Sonar, a key defense against ultra-quite diesel submarines, and
    for which the Navy has an immediate and critical need.
        Worldwide, all activities undertaken by the Defense Department
    account for fewer than 10 deaths or injuries to marine mammals
    annually, as compared with 4,800 deaths annually resulting from
    commercial fishing. By giving a science-based definition to
    ``harassment,'' we can ensure protection of marine mammals while
    allowing the Armed Forces sufficient flexibility to training and other
    operations essential to national security.
        Migratory Bird Treaty Act (MBTA): On March 13, 2002, a Federal
    judge, acting on a suit brought by the Center for Biological Diversity,
    ruled that the incidental takes of migratory birds during the course of
    training activates at Farallon de Medinilla (FDM) are unlawful under
    the MBTA without a permit. FDM is a tiny (less than 1/3 square mile),
    uninhabited island in the West Pacific. It has been used as a firing
    range for naval gunfire and air bombardment since 1976. The ruling has
    halted all training exercises on FDM pending the judge's final decision
    on whether to enjoin the Navy from carrying out bombing exercises at
    the site.
        In an area designated as a bombing range, some accidental killing
    of migratory birds will take place. Common sense tells us this. Common
    sense also tells us that shutting down the remote firing range will
    weaken Armed Forces' to train and test for future conflicts.
        The implications for military readiness go far beyond the FDM
    firing range in the West Pacific. Almost all species of birds
    everywhere are migratory, and the FDM case was brought in the DC
    Circuit, which has jurisdiction over all Department of Defense
    activities. As a result, the recent ruling in the FDM case puts at risk
    all US military aviation, military telecommunications, and live-fire
    training nationwide and abroad. A far better solution would be to
    return to the legal and regulatory status quo as it existed for over 80
    years, until the FDM ruling in March.
        Endangered Species Act (ESA): The Department of Defense manages 25
    million acres on more than 425 military installations in the United
    States, providing sanctuary to some 300 species listed as threatened or
    endangered. More often than not, it is good stewardship of land, be it
    in the public or private sector, that attracts threatened or endangered
    species. This has created problems for the military which must train
    troops and test weapons in realistic conditions on bases that harbor
    endangered species. Applying the ESA's provision pertaining to
    ``critical habitat'' to military installations, as some litigants are
    demanding, would undermine readiness activities in bases all over the
    country, including Fort Hood, Texas, Camp Pendleton, California, and
    Fort Polk, Louisiana--just to name a few.
        The courts have held that critical habitat is intended for species
    recovery. Hence, the designation of critical habitat is a bar to any
    land use that diminishes the value of that land for species recovery.
    Rather than military lands being used for military purposes, once
    critical habitat is designated, such lands must be used first for
    species recovery. The most sensible way to deal with this issue is
    through a legal instrument that already exists. Instead of critical
    habitat designation, endangered species on military reservations should
    continue to be protected through Integrated Natural Resource Management
    Plans (INRMPs), which are required under the Sikes Act and are
    developed in close cooperation with the Department of Interior and
    State wildlife agencies. This approach has been endorsed by both the
    Clinton and the Bush administrations. The widespread presence of
    threatened and endangered species on military bases attests to the
    effectiveness of INRMPs. There will always be problems, but they are
    best dealt with through the holistic approach provided by INRMPs rather
    than through the cumbersome species-by-species analysis required by the
    designation of critical habitat.
        In closing, I would like to pose two questions that go directly to
    the heart of the readiness issue: If soldiers cannot be trained in
    realistic conditions in areas designated for that purpose, then where
    is that training supposed to take place? If weapon systems cannot be
    tested in realistic conditions in areas designated for that purpose,
    then where is that testing supposed to take place?
        Thank you very much.

                                   __________
     Statement of David Henkin, Staff Attorney, Earthjustice, Honolulu, HI
                                Regional Office

        Aloha, Mr. Chairman and members of the committee. My name is David
    Henkin, and I have come here today from Hawaii, to testify on behalf of
    Earthjustice, the non-profit law firm for the environment-dedicated to
    protecting the magnificent places, natural resources, and wildlife of
    this earth and to defending the right of all people to a healthy
    environment. I thank Chairman Jeffords and the committee for this
    opportunity to testify regarding the exemptions proposed in the
    Department of Defense's (DOD) Readiness and Range Preservation
    Initiative and Senate bill 2225.
        I have been a staff attorney for Earthjustice in its mid-Pacific
    office in Honolulu, Hawaii for the past 7 years, working on a variety
    of issues involving the Endangered Species Act, Migratory Bird Treaty
    Act, and other Federal and State environmental laws. Before moving to
    Hawaii in 1995, I worked on similar issues in my home State of
    California.
        On behalf of Earthjustice, I am here today to strongly urge
    Senators on the conference committee for the DOD Authorization bill and
    this Senate Environment and Public Works Committee to oppose exemptions
    for the DOD from our nation's environmental and public health laws. The
    Administration's Readiness and Range Preservation Initiative seeks
    broad exemptions from the Clean Air Act, the Resource Conservation and
    Recovery Act (RCRA), Superfund (CERCLA), the Endangered Species Act
    (ESA), the Migratory Bird Treaty Act (MBTA), and the Marine Mammal
    Protection Act (MMPA). If adopted, these exemptions would severely
    compromise our nation's efforts to protect the air we breathe, the land
    on which we live, and the rich diversity of plants and animals with
    which we share this planet.
        We commend the Senate Armed Services Committee for not including
    these exemptions in the Senate DOD Authorization bill, S. 2514, and
    thank the entire Senate for keeping these exemptions out of the bill
    that subsequently passed on June 28, 2002. Unfortunately, the struggle
    against these anti-environmental riders is not over, since the House
    version of the DOD Authorization bill (H.R. 4546) includes provisions
    that seek to weaken protections for endangered species and migratory
    birds.

    BAD ESA EXEMPTION RIDER IN FISCAL YEAR 2002 SUPPLEMENTAL APPROPRIATIONS
                                      BILL

        The House version of the Fiscal Year 2002 Supplemental
    Appropriations bill includes a rider that seeks to exempt the DOD from
    complying with important substantive and procedural protections of the
    Endangered Species Act when DOD decisions such as hiring and defense
    contracting result in increased off-base water consumption that
    threatens imperiled species or their habitats. If adopted, this rider
    could be used to establish a dangerous new precedent for shielding the
    indirect impacts of DOD actions from review and for relieving the DOD
    of its duty to mitigate those impacts. There is no valid reason to
    apply a standard of analysis for DOD activities that is less protective
    than the standard that applies to the activities of every other Federal
    agency.
        The indirect effects of Federal actions can be far more damaging
    than the direct effects. Because of this, the need to consider indirect
    effects is a well-established principle in many of our nation's
    environmental laws, including the ESA. The exemption rider in the House
    version of the Fiscal Year 2002 Supplemental Appropriations bill seeks
    to not only do away with the consideration of potentially destructive
    indirect impacts, but may also bar analysis of impacts from
    interrelated and interdependent actions that would not occur but for an
    action taken by the DOD. This would further weaken vital protections
    Congress intended the ESA would provide endangered and threatened
    species and their habitats.
        In addition to listed species and their habitats, private, State
    and county water users who share water basins with DOD installations
    could suffer from passage of this rider. By shielding the DOD from
    responsibility for off-base impacts resulting from DOD decisions, the
    rider would shift the burden to other water users either to mitigate
    the effects of those impacts or risk losing access to water on which
    they have historically relied.
        Were this rider to become law, the DOD could attempt to exempt many
    potentially destructive actions from the ESA simply by outsourcing its
    functions through defense contracts, since the DOD may no longer be
    held accountable for water consumption occurring off base that is ``not
    under the direct authority and control'' of the Secretary of Defense.
    Such decisions greatly threaten national ecological treasures such as
    Arizona's San Pedro River, where the Army's Fort Huachuca is located.
    The San Pedro River, federally designated as a National Riparian
    Conservation Area and recognized by the Nature Conservancy as one of
    the world's eight ``Last Great Places,'' supports 82 species of mammals
    and 385 species of birds. The House rider seeks to allow the DOD to
    carry out actions likely to cause the extinction of listed species
    without any consideration, through the ESA section 7 consultation
    process, of mitigation measures or reasonable alternatives that might
    spare those species.
        Earthjustice, along with the overwhelming majority of the American
    public and over 20 national environmental groups, believes that the DOD
    should follow the law, as do other agencies and the public. A Zogby
    International poll conducted on April 19, 2002 found that 85 percent of
    registered voters believe government agencies such as the DOD should
    not be exempt from complying with America's environmental laws. Rather
    than seek to avoid its obligations under Federal environmental laws,
    the DOD should set an example in protecting and restoring our nation's
    environmental heritage. We urge Senators to oppose any such exemptions
    in both the DOD Authorization bill and the fiscal year 2002
    Supplemental Appropriations bill.

     THE FARALLON DE MEDINILLA CASE AND THE PROPOSED MIGRATORY BIRD TREATY
                                 ACT EXEMPTION

        Turning to the anti-environmental provisions of the DOD proposal
    and the House DOD Authorization bill, I would like first to discuss
    briefly the Migratory Bird Treaty Act litigation involving the Navy's
    bombing of the island of Farallon de Medinilla (FDM) in the Northern
    Mariana Islands. This is the case the DOD is using to justify its
    request for a blanket exemption from the MBTA. In December 2000, the
    Center for Biological Diversity, represented by Earthjustice, sued the
    Navy for violating the MBTA by bombing nesting seabirds at FDM, despite
    the Navy's knowledge that its bombing kills migratory birds and despite
    the U.S. Fish and Wildlife Service's (FWS) denial of the Navy's
    application for an MBTA permit, due to the Navy's failure to satisfy
    the law's basic requirements. FDM, an island of 206 acres, is home to
    more than a dozen species of migratory birds protected by the MBTA and
    the international treaties it implements, including one of only two
    breeding colonies of the great frigatebird in the Mariana island chain
    and the largest known nesting site for masked boobies in the Mariana
    and Caroline islands.
        On March 13, 2002, Judge Emmet G. Sullivan of the District of
    Columbia District Court issued an order holding that the Navy's bombing
    of FDM without an MBTA permit is illegal and, on May 1, 2002, issued a
    preliminary injunction halting for thirty days all military training
    exercises at FDM that could harm or kill migratory birds. The D.C.
    Circuit Court stayed the preliminary injunction on May 21, 2002.
    Following Judge Sullivan's subsequent issuance of a permanent
    injunction, the D.C. Circuit granted a stay of that injunction pending
    appeal on June 5, 2002.
        Even though the Navy is now free to train at FDM as it sees fit,
    the DOD is using the isolated example of this still unresolved
    litigation to seek an across-the-board exemption from the MBTA for
    training activities by all branches of the military everywhere. It is
    seeking to leverage an isolated dispute over a 206-acre island in the
    middle of the Pacific to exempt 25 million acres of DOD land across the
    country. If successful in securing this exemption, the DOD could wipe
    out untold numbers of migratory birds and destroy their nesting and
    breeding areas without any assessment of biological impacts, any
    effective oversight, or any real accountability.
        There is simply no reason for this exemption. It has been more than
    eighty years since the MBTA was enacted in 1918 to implement the
    International Convention for the Protection of Migratory Birds between
    the United States and Great Britain. In all that time, the FDM case is
    the only example the DOD can point to where it believes the MBTA may
    possibly interfere with military training. In the FDM case, the
    Department of Justice attorney has represented to the court that both
    the DOD and FWS think the Navy can get a permit under existing law by
    applying for a different ``special use'' permit.
        I say, ``may possibly'' because the FDM case is still working its
    way through the judicial system and has yet to produce a final outcome.
    In light of the D.C. Circuit's stay of the district court's injunction,
    allowing the Navy to train at FDM while the court considers the appeal,
    there is neither any urgency nor any need to enact legislation
    weakening the MBTA now.

                   PROPOSED ENDANGERED SPECIES ACT EXEMPTION

        Having spent much of my career working to protect essential
    recovery habitat for Hawaii's imperiled plants and animals, my primary
    expertise is in the application of the Endangered Species Act's
    critical habitat provisions. Accordingly, I will focus the remainder of
    my testimony discussing why the proposed ESA exemption is unnecessary
    to ensure military preparedness and why, if enacted, it would spell
    disaster for important efforts to bring endangered species from the
    brink of extinction to recovery.
        Both S. 2225 and H.R. 4546 (the focus of the upcoming conference
    committee) contain similar provisions seeking to exempt lands that the
    DOD owns or controls from critical habitat designations whenever there
    is an Integrated Natural Resources Management Plan (INRMP) that
    addresses special management considerations for the listed species
    found there, and their habitats. While we recognize the DOD's need to
    train to defend our national interests, such a broad exemption is not
    needed to accomplish this goal. We urge Senators to ensure that this
    ESA exemption is not included in the DOD authorization bill for several
    reasons:

    1. The ESA Exemption Seeks to Exclude All DOD Lands from Critical
            Habitat
        The broad wording of the proposed ESA exemption seeks to
    effectively exclude all DOD lands from critical habitat. To be exempt,
    the only condition is that the land in question have an INRMP that
    ``addresses endangered or threatened species and their habitat.'' S.
    2225, Sec. 2017 (emphasis added); see also H.R. 4546, Sec. 312 (INRMP
    must ``address[] special management considerations or protection'').
    There is no requirement that the INRMP's management be adequate to
    respond to the species' needs. Rather, as long as the INRMP discusses
    listed species and their habitats and proposes some form of management,
    it would pass muster, and the land it covers would be automatically
    exempt from critical habitat designation.
        The Sikes Act mandates that each INRMP provide, to the extent
    ``[c]onsistent with the use of military installations to ensure the
    preparedness of the Armed Forces,'' some management of the species and
    habitats found on the installation in question. 16 U.S.C. Sec. 670a(b).
    Since all INRMPs must ``address'' listed species and habitats to some
    extent, then all DOD lands with a final INRMP would automatically be
    excluded from critical habitat designation should the proposed
    exemption become law.

    2. The ESA Exemption Seeks to Eliminate an Important Tool for Species
            Recovery
        To appreciate the serious blow that the proposed ESA exemption
    would deal to efforts to bring endangered and threatened species back
    from the brink of extinction, one must first understand the vital and
    unique role critical habitat plays in promoting species recovery.
        When it first promulgated the ESA, Congress recognized that habitat
    loss is ``the major cause of the extinction of species worldwide.''
    H.R. Rep. No. 95-1625 at 5 (1978), reprinted in 1978 U.S.C.C.A.N. 9453,
    9455. Accordingly, Congress established as a primary purpose of the ESA
    to ``provide a means whereby the ecosystems upon which endangered
    species and threatened species depend may be conserved.'' 16 U.S.C.
    Sec. 1531(b).
        To further this goal, in 1978, Congress amended ESA section 4 to
    require that FWS and the National Marine Fisheries Service (NFMS)
    generally must designate critical habitat at the same time that they
    list any species as endangered or threatened. Congress mandated
    critical habitat designation for imperiled species because it confers
    important protection beyond that provided by listing alone. Under ESA
    section 7(a)(2), Federal agencies must consult FWS or NMFS to ensure
    that any action they authorize, fund or carry out will not ``jeopardize
    the continued existence of any [listed] species.'' 16 U.S.C.
    Sec. 1536(a)(2). For species with designated critical habitat, each
    Federal agency must, in addition, guarantee that its actions will not
    ``result in the destruction or adverse modification'' of that habitat.
    16 U.S.C. Sec. 1536(a)(2).
        By definition, critical habitat includes areas ``essential to the
    conservation of [listed] species.'' 16 U.S.C. Sec. 1532(5)(A).
    ``Conservation,'' in turn, means recovery of these species ``to the
    point at which the measures provided pursuant to this chapter are no
    longer necessary.'' 16 U.S.C. Sec. 1532(3). Thus, while the first ESA
    section 7(a)(2) duty not to ``jeopardize the continued existence'' of
    listed species helps to protect them from extinction, critical habitat
    designation allows these species to recover to a non-imperiled status,
    the ultimate goal of the ESA.
        In lobbying for the ESA exemption, the DOD glosses over the
    significant lowering of the bar of endangered species protection that
    may result should this provision become law. The DOD emphasizes that it
    would still have to consult FWS and NMFS under ESA section 7(a)(2), but
    fails to mention that, in cases where essential recovery habitat is
    currently unoccupied by listed species, consultation might not be
    triggered at all absent a formal designation of the habitat as
    ``critical habitat.'' Consultation for potential impacts to essential
    recovery habitat that is unoccupied is likely not to occur with an
    INRMP alone.
        For species that are endangered, dispersal into currently
    unoccupied territory, is in most cases, key to their recovery. In
    Hawaii, where many plant species have been reduced to single
    populations, it is vital to protect areas historically occupied--but
    currently unoccupied--if we are to have any chance of increasing the
    numbers and distribution of these plants to save them from extinction.
    Other species, like the Florida panther, may rely on unoccupied habitat
    to provide dispersal corridors between currently occupied areas.
        Moreover, without critical habitat designated, the standards
    against which any consultations that did take place would measure DOD
    activities would be much less protective. Rather than ensuring that the
    DOD's activities would not destroy habitat that is essential to species
    recovery, the DOD is seeking a requirement only to avoid ``jeopardy,''
    that is, pushing a species to extinction. The DOD proposal could have
    the effect of precluding a species from having any chance at recovery.
        When one considers that the DOD controls over 25 million acres of
    land, home to over 300 federally listed species, the implications for
    species recovery of the DOD's proposed exemption is enormous. For
    example, the Army's Makua Military Reservation on O`ahu is home to over
    thirty endangered plants, many of which are found only in the Makua
    area, and nowhere else.

    3. There is No Need to Weaken the ESA to Achieve Military Readiness
        Before eliminating essential protection for recovery habitat on DOD
    lands, one must take a hard look at whether this drastic measure is
    necessary. Review of the ESA shows that the law already contains the
    flexibility the DOD needs to ensure that it can prepare to defend our
    Nation.
        Under ESA section 4(b)(2), before FWS or NMFS can designate
    critical habitat, they must ``tak[e] into consideration the economic
    impact, and any other relevant impact, of specifying any particular
    area as critical habitat.'' 16 U.S.C. Sec. 1533(b)(2) (emphasis added).
    Thus, if DOD has a valid concern that designating critical habitat on a
    particular facility would interfere with vital training activities, the
    ESA already provides a mechanism to express those concerns and to seek
    exclusion of specific areas on a case-by-case basis.
        The critical habitat designation process for the coastal California
    gnatcatcher, a threatened bird, illustrates how the existing section
    4(b)(2) process takes into consideration concerns about military
    readiness. As originally proposed, the critical habitat designation for
    the gnatcatcher would have included about 40 percent of Marine Corps
    Base Camp Pendleton. 65 Fed. Reg. 63680, 63690 (Oct. 24, 2000). During
    the public comment periods on the proposal, the Marines expressed
    concerns that, if finalized, the designation would interfere with vital
    training activities. The FWS took due note of the Marines' concerns
    and, pursuant to section 4(b)(2), issued a final rule that excluded all
    of Camp Pendleton from critical habitat for the California gnatcatcher.
        Unlike the careful case-by-case balancing required under section
    4(b)(2), the proposed blanket ESA exemption seeks to exclude areas from
    critical habitat, even if they manifestly have no connection to
    military readiness. The expansive wording of the proposed exemption
    extends to all lands ``owned or controlled'' by DOD, including military
    exchanges, recreational facilities such as golf courses, commissaries,
    water treatment facilities, and so forth. Section 4(b)(2)'s existing
    mechanism for evaluating national defense needs is a far superior way
    to address the DOD's concerns.
        Moreover, the ESA, as currently written, already provides for the
    potential situation when military activity that might be curtailed by
    critical habitat designation. Section 7(j) gives the DOD an automatic
    exemption from any provision of the ESA--including the prohibition on
    adversely modifying or destroying critical habitat--whenever ``the
    Secretary of Defense finds that such exemption is necessary for reasons
    of national security.'' 16 U.S.C. Sec. 1536(j). No other Federal agency
    has this power to demand an automatic exemption from the ESA's
    requirements.
        Thus, if critical habitat designation were to conflict with
    military training activities vital for national security, the Secretary
    of Defense already has the authority to ensure that training will take
    place, untrammeled by restrictions imposed by critical habitat, or, for
    that matter, any other ESA provision. The fact that the Secretary of
    Defense has never felt the need to invoke the automatic exemption
    provisions of section 7(j) belies the DOD's current claim that the
    proposed exemption is needed to ensure military readiness.
        The ESA, as currently written, already gives the DOD the tools it
    needs to ensure, on a case-by-case basis, that critical habitat will
    not interfere with vital training. There is no reason to give the DOD a
    sweeping exemption from all critical habitat designations, since, in
    most cases, no conflict between habitat protection and military
    readiness actually exists.

    4. INRMPs Are Inadequate Substitutes for Critical Habitat
        The DOD's suggestion that INRMPs can substitute for critical
    habitat ignores crucial differences between the type of protection that
    each provides. First, because the Sikes Act mandates that INRMPs tailor
    their management programs to be consistent with the military mission of
    the installation in question, the protective measures an INRMP can
    require are inherently limited in scope. In contrast, ESA section
    7(a)(2)'s prohibition on adverse modification or destruction of
    critical habitat establishes uniform standards for all Federal
    agencies--including the DOD. Critical habitat provides more protection
    than INRMPs ever could.
        Second, because it comes into play during section 7 consultation,
    which involves a case-by-case analysis of the likely impacts of
    proposed military activity, critical habitat ensures that the
    evaluation of a species' habitat needs will always be based on ``the
    best scientific and commercial data available.'' 16 U.S.C.
    Sec. 1536(a)(2). In contrast to this dynamic process, INRMPs are static
    documents, generally updated only once every 5 years. 16 U.S.C.
    Sec. 670a(b)(2). They do not guarantee that decisions will always be
    based on the latest and best science, as critical habitat does.
        Third, because INRMPs are on-the-ground management plans, their
    effectiveness depends entirely on their funding level. Without funding,
    INRMPs provide no benefit to listed species or their habitat.
        For example, on the island of O`ahu, FWS recently refused to
    exclude six Army installations with INRMPs--Dillingham Military
    Reservation, Kawailoa Training Area, Kahuku Training Area, Makua
    Military Reservation, Schofield Barracks Military Reservation, and
    Schofield Barracks East Range--from proposed critical habitat
    designations for endangered and threatened plants on the grounds that
    ``there is currently no guarantee of long-term funding for management
    actions that are ongoing or future management actions.'' 67 Fed. Reg.
    37108, 37161.
        In contrast to INRMPs, the restrictions on habitat-destroying
    Federal projects that critical habitat imposes are always there,
    protecting species regardless of funding.
        Fourth, because the prohibition on adversely modifying critical
    habitat applies to all Federal agencies, critical habitat reaches a
    broader set of Federal threats than INRMPs, which regulate activities
    only on military installations. Thus, even if an INRMP contained the
    most proactive habitat management restrictions imaginable and were
    fully funded, an installation commander may have no power to stop
    another Federal agency from carrying out activities off-base, even if
    the activities were certain to harm habitat resources within
    installation boundaries. In contrast, critical habitat reaches all
    Federal activities, whether they take place inside or outside
    designated habitat.
        A recent proposal to expand the runways at Kahului Airport on Maui
    to accommodate direct flights from abroad vividly illustrates the vital
    role critical habitat can play in protecting essential recovery
    habitat--like that found on many military installations--from indirect
    Federal threats. The National Park Service strongly opposed the airport
    expansion on the ground that it would increase the rate of introduction
    of invasive alien species, which eventually would spread to Haleakala
    National Park, degrading the native habitat found there. However,
    because Kahului Airport is located outside park boundaries, there was
    little park managers--whose primary mission is to protect the park's
    native species and ecosystems--could have done to prevent the Federal
    Aviation Administration (``FAA'') from approving the expansion plans
    had the State of Hawaii not withdrawn them because of unfavorable
    economic conditions. In contrast, were critical habitat designated
    within park boundaries, the FAA would have to ensure that any airport
    expansion would not likely result, even indirectly, in adverse
    modification of that essential recovery habitat. See 67 Fed. Reg.
    15856, 15954 (Apr. 3, 2002) (noting that designation affects
    ``regulation of airport improvement activities by the FAA'').\1\
    ---------------------------------------------------------------------------
        \1\ For that reason, the superintendent of Haleakala National Park
    lobbied heavily for the park's inclusion in critical habitat when FWS
    proposed critical habitat for endangered and threatened plants on Maui.
    ---------------------------------------------------------------------------
        Similarly, the only way to ensure that Federal activities outside
    DOD lands will not adversely modify essential recovery habitat on DOD
    lands is through critical habitat designation. INRMPs only apply to
    within installation boundaries and, thus, cannot prevent harm from
    outside Federal activities.

    5. The DOD is Seeking a Less Demanding Standard than Current FWS Policy
        To persuade Congress to adopt the proposed ESA exemption, the DOD
    has argued that it is nothing more than a codification of the current
    FWS policy to exclude from critical habitat those areas that currently
    receive adequate special management considerations and protection for
    essential recovery habitat. The standard for exemption in the proposed
    ESA amendment--that DOD lands have an INRMP that merely ``addresses''
    species and habitat management issues--is much less demanding than the
    standard FWS currently applies.
        Before excluding DOD lands from critical habitat, FWS insists that
    they meet the following three criteria:
        (1) a current INRMP must be complete and provide a conservation
    benefit to the species; (2) the plan must provide assurances that the
    conservation management strategies will be implemented; and (3) the
    plan must provide assurances that the conservation management
    strategies will be effective, by providing for periodic monitoring and
    revisions as necessary.
        67 Fed. Reg. at 15905.
        The DOD's recent experience with critical habitat designations in
    Hawaii contradicts its claim that the proposed ESA exemption is nothing
    more than a codification of current FWS policy. In case after case, FWS
    has found INRMPs to be inadequate substitutes for critical habitat.
        On Kaua`i, FWS found that management actions on lands under Navy
    control at Barking Sands and Makaha Ridge ``are not sufficient to
    address the factors inhibiting the long-term conservation'' of the
    endangered plants found there. 67 Fed. Reg. 3940, 3998 (Jan. 28, 2002).
        On O`ahu, FWS concluded that existing management actions at six
    Army installations (Dillingham Military Reservation, Kawailoa Training
    Area, Kahuku Training Area, Makua Military Reservation, Schofield
    Barracks Military Reservation, and Schofield Barracks East Range) and
    for lands under Navy control at Lualualei are not ``sufficient to
    address the primary threats to [listed plant] species'' and that
    ``appropriate conservation management strategies have [not] been
    adequately funded or effectively implemented.'' 67 Fed. Reg. 37108,
    37164 (May 28, 2002); see also id. at 37161-63.
        In designating critical habitat for the O`ahu `elepaio, a forest
    bird, FWS reviewed the INRMPs for three Army installations (Fort
    Shafter, Makua Military Reservation, and Schofield Barracks) and for
    Pearl Harbor Naval Magazine Lualualei, finding that ``no military
    installation on O`ahu has completed a final INRMP that provides
    sufficient management and protection for the elepaio.'' 66 Fed. Reg.
    63752, 63762 (Dec. 10, 2001).
        On the Island of Hawaii, FWS found that management at the Army's
    Pohakuloa Training Area ``is not sufficient to address many of the
    factors inhibiting the long-term conservation of any of [the] 10
    [federally listed plant] species'' found there. 67 Fed. Reg. 36968,
    37002 (May 28, 2002).
        Thus, after reviewing INRMPs across the State, the Service found
    that none of them provided adequately for the long-term conservation of
    Hawaii's endangered and threatened species and their habitats. By
    excluding these same installations from critical habitat, the proposed
    ESA exemption would be a major setback in the struggle to save
    imperiled species in Hawaii--and throughout the country--from
    extinction.

                                   CONCLUSION

        In summary, Earthjustice strongly opposes the DOD's proposal to
    deprive migratory birds and essential recovery habitat on DOD lands of
    vital legal protections. Until the FDM litigation reaches a final
    resolution, it is premature for Congress to assess whether any changes
    to the MBTA are necessary or appropriate. As for the ESA, the current
    law provides assurances that training that is truly essential to
    national security will continue. We urge Senators on the conference
    committees to reject the exemptions found in the House version of the
    DOD Authorization bill and the fiscal year 2002 Supplemental
    Appropriations bill, which would weaken our country's most important
    environmental and public health laws.
        Thank you for the opportunity to testify today.

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    Responses of David L. Henkin to Additional Questions from Senator Smith
        Question 1. You opened your testimony by promising to explain ``why
    the proposed ESA exemption is unnecessary to ensure military
    preparedness and why, if enacted, it could spell disaster for important
    efforts to bring endangered species from the brink of extinction to
    recover''. Yet you never addressed these points, at least not to my
    satisfaction. In light of the compelling testimony by the generals and
    admiral as to the grave threat caused to military readiness by the
    wording of certain existing statutes, and the minor clarifications
    being requested, please explain, with as much particularity as you are
    able why the proposals of the RRPI are ``unnecessary to ensure military
    preparedness''. Please include in your answer a list of your
    qualifications as an expert in the area of military preparedness.
        Response. When I testified before the Committee, I did not claim to
    be an expert in the area of military preparedness, and I make no such
    claim now. As stated in my testimony, my primary expertise is in
    interpreting and applying the Endangered Species Act's (ESA) critical
    habitat provisions. I acquired this expertise during years of
    professional experience seeking to protect essential recovery habitat
    for Hawaii's imperiled plants and animals. Based on this experience, I
    am convinced that the proposed ESA exemption is unnecessary to ensure
    military preparedness and, if enacted, would spell disaster for
    important efforts to bring endangered species from the brink of
    extinction to recovery.
        The proposed exemption is unnecessary because the ESA already
    contains the flexibility the Department of Defense (DOD) needs to
    ensure that it can prepare to defend our nation. Specifically, under
    ESA section 4(b)(2), before the U.S. Fish and Wildlife Service (FWS) or
    National Marine Fisheries Service finalizes a critical habitat
    designation, it must ``tak[e] into consideration the economic impact,
    and any other relevant impact, of specifying any particular area as
    critical habitat.'' 16 U.S.C. Sec. 1533(b)(2) (emphasis added). Thus,
    if the DOD has concerns that designating critical habitat at a
    particular facility would interfere with vital training activities, the
    ESA already provides a mechanism to express those concerns and to seek
    exclusion of specific areas on a case-by-case basis. As explained in my
    written testimony, the DOD has already had success using this provision
    to convince the FWS to exclude, based on concerns for military
    readiness, all of Marine Corps Base Camp Pendleton from the final
    critical habitat designation for the coastal California gnatcatcher.
        Unlike the careful case-by-case balancing required under section
    4(b)(2), the proposed blanket ESA exemption seeks to exclude from
    critical habitat areas identified as essential to endangered species'
    recovery, even if the areas manifestly have no connection to military
    readiness. The expansive wording of the proposed exemption extends to
    all lands ``owned or controlled'' by the DOD, including military
    exchanges, recreational facilities such as golf courses, commissaries,
    water treatment facilities, and so forth. Section 4(b)(2)'s existing
    mechanism for evaluating national defense needs is a far superior way
    to address the DOD's concerns.
        Moreover, the ESA, as currently written, already provides for the
    hypothetical situation in which a critical habitat designation might
    interfere with military activity deemed vital to national security.
    Section 7(j) gives the DOD an automatic exemption from any provision of
    the ESA--including the prohibition on adversely modifying or destroying
    critical habitat--whenever ``the Secretary of Defense finds that such
    exemption is necessary for reasons of national security.'' 16 U.S.C.
    Sec. 1536(j). No other Federal agency has this power to secure an
    automatic exemption from the ESA's requirements. Moreover, as Marine
    Corps General Michael Williams testified, the DOD could secure such an
    exemption overnight, if time were of the essence.
        Thus, if a critical habitat designation ever were to conflict with
    military training activities vital for national security, the Secretary
    of Defense already has the authority to ensure that training takes
    place, untrammeled by restrictions imposed by critical habitat or, for
    that matter, any other ESA provision. The fact that, as the generals'
    and admiral's testimonies confirmed, the Secretary of Defense has never
    felt the need to invoke an automatic exemption under section 7(j)
    belies the DOD's current claim that the proposed exemption is needed to
    ensure military readiness.
        Finally, while the generals and admiral related anecdotes (nearly
    all of which concerned the ESA's prohibitions on unpermitted take of
    listed species, not critical habitat), they could not refute the
    findings of the General Accounting Office's (GAO) June 2002 study,
    which concluded that military reports continue to show high levels of
    combat readiness across the armed services. There was nothing in the
    GAO study that suggested a need to change our environmental and public
    health laws to maintain readiness, much less a need to rush to enact
    the type of sweeping changes that the DOD proposes. Rather, the report
    indicated that the various branches of the military have failed to look
    comprehensively at either opportunities to share training assets
    between the services or alternative types of training that could
    address perceived encroachment conflicts.

        Question 2. In answer to a question I put to you at the hearing,
    you testified that ``the Navy . . . in 1996 and 1997 . . . applied for
    a permit [a]nd the Fish and Wildlife Service denied its permit because
    [the Navy] had not put together a permit application that satisfied the
    requirements of the law.'' Isn't that testimony just plain wrong? Isn't
    the truth that the Fish and Wildlife Service denied the permit because
    the Fish and Wildlife Service found it lacked jurisdiction to grant a
    permit for incidental takings?
        Response. No, my testimony is correct. The U.S. Fish and Wildlife
    Service's stated reasons for denying the Navy's application were: (1)
    the Navy was unable to show it could ensure compliance with legal
    limits and conditions applicable to all MBTA permits, such as number
    and species of birds taken; and (2) even the number of birds the Navy
    arbitrarily proposed to take ``could have a significant impact on local
    nesting populations.'' 8/5/96 letter from J. Bradley Bortner to Daniel
    Moriarty. Also, in the litigation over Navy bombing of Farallon de
    Medinilla (FDM), the Department of Justice attorney represented to the
    court that both the DOD and the FWS believed the Navy could get a
    permit under existing law by applying for a ``special use'' permit,
    rather than the ``depredation'' permit it sought in 1996.

        Question 3. With respect to the allegations in the FDM case, isn't
    it true that there was no unquestioned proof that any birds were in
    fact taken, and that the allegation--at least as briefed on appeal--
    that some forty (40) birds per year even might be taken if the
    injunction did not issue?
        Response. No. The Navy acknowledged repeatedly that its activities
    at FDM take migratory birds. E.g., Navy's Brief on Appeal at 38 (``It
    is uncontested that the Navy's training on FDM kills migratory
    birds.'') The Navy also acknowledged that ``it is impossible to predict
    with any precision how many birds covered by the MBTA will be harmed by
    the Navy's exercises.'' Id. at 37.

        Question 4. Isn't it true that the purpose of the 1918 Migratory
    Bird Treaty Act was to stop the intentional hunting of migratory birds
    for commercial reasons such as feathers for ladies' hats? The recent
    D.C. District Court case held that the MBTA as written prohibits both
    intentional and unintentional harm to migratory birds. Isn't this a
    perversion of Congressional intent? Wouldn't the RRPI merely restore
    the original intent of the Act?
        Response. No. The purpose of the MBTA was by no means limited to
    restricting hunting or intentional conduct. See United States v. Moon
    Lake Electric Ass'n, 45 F. Supp. 2d 1070, 1080 (D. Cob. 1999)
    (``Congress intended the MBTA to regulate more than just hunting and
    poaching'') (quoting statements of many Members of Congress expressing
    statute's broader intent). See also Humane Society v. Glickman, No. 98-
    1510, 1999 U.S. Dist. LEXIS 19759, at *28 (D.D.C. July 6, 1999)
    (``Congress . . . also passed the MBTA to preserve for the Nation the
    aesthetic good that migratory birds delivered as they passed overhead
    during their annual sojourns. See H.R. Rep. No. 65-243, at 2 (``The
    utility of this measure appeals to many others than farmers and
    sportsmen, but thousands upon thousands of people--men, women, and
    children--who have happy memories of their homes made brighter and more
    attractive by the annual visitation of the robin, the catbird and other
    insectivorous birds embraced within the treaty')''), aff'd, 217 F.3d
    882 (D.C. Cir. 2000). Note also that the MBTA by its terms prohibits
    not only ``hunting,'' ``capturing,'' ``shooting,'' and ``trapping,''
    but also ``killing,'' ``possessing,'' ``offering for sale,'' ``offering
    to barter, ``bartering,'' ``offering to purchase,'' ``purchasing,''
    ``delivering for shipment,'' ``shipping,'' ``exporting,''
    ``importing,'' ``delivering for transportation,'' ``transporting,''
    ``carrying,'' and ``receiving,'' 11 U.S.C. Sec. 703, all of which may
    be performed without exhibiting the physical conduct normally
    associated with hunting.

                                   __________
       Statement of Daniel S. Miller, First Assistant Attorney General,
       Colorado Department of Law, on Behalf of the Attorneys General of
    Arizona, California, Colorado, Massachusetts, Nevada, New York, Oregon,
                                 and Washington

                                  INTRODUCTION

        Mr. Chairman, thank you for the opportunity to present the State
    perspective on this issue today. These written remarks are submitted
    today on behalf of the Attorneys General of Arizona, California,
    Colorado, the Commonwealth of Massachusetts, Nevada, New York, Oregon,
    and Washington. Our testimony will address only those parts of the
    Department of Defense's (DOD's) legislative proposals that would amend
    the Clean Air Act, the Resource Conservation and Recovery Act (or RCRA)
    or the Comprehensive Environmental, Response, Compensation and
    Liability Act (known as CERCLA). The States are the primary
    implementers of the Clean Air Act and RCRA, and are major partners with
    EPA under CERCLA. As the chief law enforcement officers of our
    respective States, it is our duty to ensure compliance with our
    environmental laws.
        First, let us reiterate that we absolutely support the need to
    maintain military readiness, and to provide our armed forces with
    appropriate realistic training to minimize battlefield casualties and
    increase their combat effectiveness. There is no question of the
    importance of readiness. However, military training activities can also
    have substantial adverse impacts on human health and the environment.
    The question is whether the existing environmental laws allow the
    military to conduct these activities in a manner that maintains
    readiness while ensuring protection of human health and the
    environment. With respect to RCRA, CERCLA and the Clean Air Act, we
    believe that they do. In our view, furthering military readiness and
    ensuring environmental protection are compatible goals, not mutually
    exclusive.
        We are not aware of any instances in which RCRA, CERCLA or the
    Clean Air Act has ever caused an adverse impact on military readiness.
    To our knowledge, DOD has not cited any examples of any such conflicts.
    We believe that the likelihood of a future conflict between these laws
    and military readiness is remote. In the unlikely event of such a
    conflict, these laws already provide the flexibility necessary to
    harmonize the competing concerns of military readiness and protection
    of human health and the environment.
        RCRA, CERCLA, and the Clean Air Act provide vital safeguards to
    protect the health of our citizens and their environment. As a general
    matter, we think that these safeguards should be maintained or
    strengthened not weakened. Certainly, any amendments that would weaken
    the protections these laws provide must be justified by important
    countervailing considerations that are supported by the facts. While we
    certainly agree that maintaining readiness is necessary, the lack of
    any demonstrated conflict with RCRA, CERCLA and Clean Air Act
    requirements, together with the inherent flexibility of these laws,
    causes us to conclude that these amendments are unnecessary.
        We are concerned that DOD's proposed amendments to RCRA, CERCLA,
    and the Clean Air Act would undermine State authority and create
    significant adverse environmental impacts, with no benefit to military
    readiness. These amendments are far-reaching. We disagree with DOD's
    statements that these amendments only apply to ``operational'' ranges.
    DOD's amendments to RCRA and CERCLA would likely affect cleanups of
    unexploded ordnance at thousands of sites nationwide, including many
    that are no longer in Federal ownership, and could be read to exempt
    all munitions-related and explosives-related wastes from regulation as
    hazardous waste. The amendments to the Clean Air Act would allow
    continued violations of health-based air quality standards in cases
    where there was no impact on readiness.
        Finally, we are concerned with the legislative process by which
    these proposed amendments have been considered. The proposed amendments
    were proposed as amendments to the Defense Authorization Bill in both
    Houses of Congress. The legislative language was first made public only
    4 days before markup of the Defense Authorization bill in the Readiness
    Subcommittee of the House of Representatives. Until this hearing before
    your committee, no hearings on this legislative language have been held
    before a committee of jurisdiction. These amendments affect the Federal
    Government's obligations to comply with State and Federal environmental
    laws. This is an important matter of public policy, with significant
    implications for environmental protection. It deserves full hearings
    before the committees of jurisdiction, and the careful deliberation
    that regular order provides. Because Federal courts closely scrutinize
    waivers of sovereign immunity, and these proposed amendments would
    affect the waivers of immunity in RCRA and CERCLA, the need for careful
    deliberation of the proposed legislative language is even greater.
        These amendments continue a trend that has intensified in recent
    years where legislation that could alter or impair State authority over
    Federal facility environmental compliance is often not subjected to
    regular order with hearings before the congressional committees with
    jurisdiction over the environmental laws, but instead is proposed as
    amendments to authorization or appropriations bills. The National
    Association of Attorneys General recently gave preliminary approval to
    a resolution opposing this practice, which we have attached to our
    testimony.\1\
    ---------------------------------------------------------------------------
        \1\ See Exhibit 1. The resolution should become final and effective
    on or about July 8, 2002.
    ---------------------------------------------------------------------------
    The Clean Air Act, RCRA and CERCLA have not adversely impacted military
            readiness
        As far as we are aware, DOD has not identified any cases in which
    RCRA or CERCLA have adversely impacted military readiness. Nor are we
    aware of any such instances. Even DOD's own background materials
    supporting the ``Readiness and Range Preservation Initiative'' downplay
    the need for amending RCRA and CERCLA, characterizing the impact on
    readiness as merely ``potentially significant''.\2\ DOD's sole
    justification for its proposed amendments to RCRA and CERCLA is that a
    citizen suit was recently filed in Alaska alleging that the discharge
    of ordnance onto an operational military range constitutes ``disposal''
    under RCRA and a ``release'' under CERCLA.\3\ Assuming the plaintiffs
    prevail in this suit, the appropriate relief would be to require DOD to
    obtain a RCRA permit for the affected range. Such a permit could be
    crafted in a manner that would protect the environment while allowing
    DOD to continue training.\4\
    ---------------------------------------------------------------------------
        \2\ ``Readiness and Range Preservation Initiative Summary,'' dated
    April 18, 2002, p. 7 (attached as Exhibit 2).
        \3\ Id.
        \4\ In the 1992 Federal Facility Compliance Act, Congress directed
    EPA to promulgate regulations that defined when military munitions
    become solid wastes. However, EPA has only promulgated such regulations
    for a small subset of military munitions. Thus, there are currently no
    RCRA regulations governing management of used or fired munitions on
    active ranges. Nonetheless, EPA would certainly have the discretion to
    impose environmentally protective permit conditions that would not
    adversely impact readiness.
    ---------------------------------------------------------------------------
        Similarly, DOD has not identified any instances in which the Clean
    Air Act's conformity requirements have actually prevented the military
    from conducting the activities it believes are necessary to maintain
    readiness. Instead, it describes some ``near misses,'' and urges that
    the proposed exemption is necessary to facilitate the next round of
    base closures in 2005.\5\ These ``near misses'' are cases where, in
    fact, potentially conflicting environmental requirements and readiness
    concerns were successfully resolved through the regulatory process.
    DOD's proposed amendments to the Clean Air Act would allow continued
    violations of the health-based National Ambient Air Quality Standards
    without any demonstration that DOD could not make the necessary
    emissions offsets.
    ---------------------------------------------------------------------------
        \5\ Exhibit 2, p. 6.
    ---------------------------------------------------------------------------
    The environmental laws provide ample flexibility to accommodate any
            conflicts between military readiness and environmental
            protection
        We think that it is unlikely the Clean Air Act, RCRA, or CERCLA
    requirements will cause conflicts with military readiness. Based on
    experience to date, any such conflicts would be rare occurrences.
    Consequently, we believe that the case-by-case exemption provisions
    that already exist in each of these laws (described below) are vastly
    preferable to DOD's proposed across-the-board statutory exemption from
    environmental requirement. The case-by-case approach accommodates
    readiness concerns where necessary, and minimizes adverse environmental
    consequences in the vast majority of cases where there are no
    conflicts. DOD's approach would weaken environmental protections even
    in the vast majority of cases where there was no adverse impact on
    readiness.
        The Clean Air Act, RCRA and CERCLA already allow the President to
    exempt the Department of Defense from their statutory and regulatory
    requirements on a case-by-case basis.\6\ These are not burdensome
    requirements. All that is required is a finding that doing so is
    necessary for national security or is in the paramount interests of the
    United States, depending on the particular statute at issue. For
    example, President Bush recently made such a finding under RCRA
    exempting the Air Force facility ``near Groom Lake, Nevada, from any
    Federal, State, interstate or local provision respecting the control
    and abatement of solid waste or hazardous waste disposal that would
    require the disclosure of classified information concerning the
    operating location to any authorized person.''\7\ The entire finding
    consists of three paragraphs. President Clinton made similar findings
    annually from 1996 through 2000 regarding this same matter to prevent
    the release of classified information. We understand that to date, the
    exemption provisions of the Clean Air Act, RCRA and CERCLA have never
    been invoked because of military readiness concerns.
    ---------------------------------------------------------------------------
        \6\ 42 U.S.C. Sec. Sec. 6961(a), 7418(b), and 9620(j). The RCRA
    exemption, Sec. 6961(a), provides:
        ``The President may exempt any solid waste management facility of
    any department, agency, or instrumentality in the executive branch from
    compliance with such a requirement if he determines it to be in the
    paramount interest of the United States to do so. No such exemption
    shall be granted due to lack of appropriation unless the President
    shall have specifically requested such appropriation as a part of the
    budgetary process and the Congress shall have failed to make available
    such requested appropriation. Any exemption shall be for a period not
    in excess of 1 year, but additional exemptions may be granted for
    periods not to exceed 1 year upon the President's making a new
    determination. The President shall report each January to the Congress
    all exemptions from the requirements of this section granted during the
    preceding calendar year, together with his reason for granting each
    such exemption.''
        \7\ 66 Fed. Reg. 50807 (Oct. 4, 2001), attached as Exhibit 3.
    ---------------------------------------------------------------------------
        In addition to providing a case-by-case exemption, section 118(b)
    of the Clean Air Act authorizes the President to ``issue regulations
    exempting from compliance with the requirements of this section any
    weaponry, equipment, aircraft, vehicles, or other classes or categories
    of property which are owned or operated by the Armed Forces of the
    United States (including the Coast Guard) or by the National Guard of
    any State and which are uniquely military in nature.''\8\ This
    provision allows even greater flexibility than the case-by-case
    exemptions in managing any potential conflicts between Clean Air Act
    requirements and readiness concerns.
    ---------------------------------------------------------------------------
        \8\ 42 U.S.C. Sec. 7418(b).
    ---------------------------------------------------------------------------
        Other provisions of the environmental laws provide further
    flexibility to balance environmental protection with other Federal
    priorities. For example, in 1992, Congress provided EPA authority to
    issue administrative orders under RCRA to other Federal agencies, but
    required that such agencies have the opportunity to confer with the EPA
    Administrator before any such order becomes final.\9\ Additionally,
    Congress has created a procedure that allows the Secretary of Defense
    to temporarily suspend any pending administrative action by another
    Federal agency that the Secretary determines ``affects training or any
    other readiness activity in a manner that has or would have a
    significant adverse effect on the military readiness of any of the
    armed forces or a critical component thereof.''\10\ During the
    suspension, the Secretary and the head of the other Federal agency must
    consult and attempt to mitigate or eliminate the adverse impact of the
    proposed action on readiness, consistent with the purpose of the
    proposed action.\11\ If they are unable to reach agreement, the
    Secretary of Defense must notify the President, who shall resolve the
    matter.\12\
    ---------------------------------------------------------------------------
        \9\ 42 U.S.C. Sec. 6961(b)(2).
        \10\ 10 U.S.C. Sec. 2014(a) and (d).
        \11\ 10 U.S.C. Sec. 2014(c).
        \12\ 10 U.S.C. Sec. 2014(e).
    ---------------------------------------------------------------------------
    DOD's compliance record warrants a regulatory structure that ensures
            accountability
        A case-by-case approach to resolving any future potential conflicts
    between readiness and the requirements of RCRA, CERCLA and the Clean
    Air Act is preferable to sweeping statutory exemptions because the
    case-by-case approach provides accountability. Experience since the
    1992 Supreme Court decision in U.S. Department of Energy v. Ohio\13\
    demonstrates that Federal agencies in general, and DOD in particular,
    are far more likely to comply with environmental requirements when they
    can be held accountable. In that case, the Supreme Court held that
    Federal agencies were not subject to penalties for violating State
    hazardous waste and water quality laws. In response, Congress swiftly
    amended RCRA to make Federal agencies subject to penalties for
    violating hazardous waste laws. Once Congress clarified the States'
    authority to hold Federal agencies accountable for violating hazardous
    waste requirements, DOD and other Federal agencies began steadily
    improving their RCRA compliance rates, bringing the percentage of
    facilities in compliance from a low of 55.4 percent in fiscal year 1993
    to 93.6 percent in fiscal year 2000.\14\
    ---------------------------------------------------------------------------
        \13\ 503 U.S. 607 (1992).
        \14\ ``The State of Federal Facilities--An Overview of
    Environmental Compliance at Federal Facilities fiscal year 1999-2000''
    USEPA Office of Enforcement and Compliance Assurance, EPA 300-R-01-004,
    September 2001, p. 22, attached as Exhibit 4.
    ---------------------------------------------------------------------------
        This salutary trend stands in stark contrast to Federal agency
    performance under the Clean Water Act. Unlike RCRA, Congress did not
    amend the Clean Water Act following the Ohio decision to subject
    Federal agencies to penalties for violating Clean Water Act
    requirements. Since the Supreme Court decision removed the threat that
    States could hold Federal agencies accountable for violating Clean
    Water Act requirements by assessing penalties, the percentage of
    Federal facilities in compliance with the Clean Water Act has fallen
    steadily fallen over time, from a high of 94.2 percent in fiscal year
    1993 to a low of 61.5 percent in fiscal year 1998.\15\ While Federal
    facilities' Clean Water Act compliance rates as a whole rebounded
    somewhat in fiscal year 1999 and 2000, the overall trend is still
    downward. DOD's Clean Water Act compliance rates are slightly worse
    than the Federal agency totals.\16\
    ---------------------------------------------------------------------------
        \15\ Id.
        \16\ Id. DOD's Clean Water Act compliance rates for fiscal year
    1996-2000 were slightly lower than Federal agencies as a whole. Id. at
    p. 24; ``The State of Federal Facilities--An Overview of Environmental
    Compliance at Federal Facilities, fiscal year 1997-98,'' USEPA Office
    of Enforcement and Compliance Assurance, EPA 300-R-00-002, January
    2000, p. 26; ``The State of Federal Facilities--An Overview of
    Environmental Compliance at Federal Facilities, fiscal year 1995-96''
    USEPA Office of Enforcement and Compliance Assurance, EPA 300-R-98-
    002a, June 1998, pp. ES-11 and ES-12. While the DOD rates also improved
    in fiscal year 1999 from fiscal year 1998's nadir, they declined again
    in fiscal year 2000. DOD-specific data for fiscal year 1995 and earlier
    were not available in time to be included in this testimony.
    ---------------------------------------------------------------------------
        Compliance statistics alone, telling as they are, do not paint the
    entire picture of Federal agencies' resistance to compliance with
    environmental requirements. Federal agencies in general, and DOD in
    particular, have long had a history of resistance to environmental
    regulation. The history of the Clean Air Act provides a good example.
    Before 1970, the Clean Air Act encouraged, but did not require, Federal
    agencies to comply with its mandates. Congress determined that this
    voluntary system was not working, and in 1970 amended the act to
    require Federal agencies to comply. Specifically, Congress added
    section 118 to the Clean Air Act. The first sentence of the section
    provides, in relevant part:

              Each department, agency, and instrumentality of . . . the
            Federal Government . . . shall comply with Federal, State,
            interstate, and local requirements respecting control and
            abatement of air pollution to the same extent that any person
            is subject to such requirements.

        42 U.S.C. Sec. 1857f. The 1970 amendments also required the
    Environmental Protection Agency to establish ambient air quality
    standards. Each State had to submit plans describing how the State
    would meet these standards. Kentucky, like most States, submitted a
    plan that relied on permits as the sole mechanism to establish
    emissions limitations for air pollution sources, and to establish
    schedules for achieving compliance with the emissions limitations.
    Kentucky sought to require several Federal facilities (including the
    Army's Fort Knox, Fort Campbell and others) to obtain permits. The
    Federal agencies refused, arguing that section 118 of the Clean Air Act
    did not obligate them to comply with ``procedural'' requirements, such
    as the need to obtain State permits. Without the permit, there was no
    way for Kentucky to control air pollution from these Federal
    facilities.
        The matter went to court, and ultimately, in Hancock v. Train,\17\
    the Supreme Court agreed with the Federal agencies. Shortly thereafter,
    Congress amended the Clean Air Act to require Federal agencies to
    comply with procedural requirements, including permit requirements.\18\
    While the challenge to State authority under the Clean Air Act was
    pending, Federal agencies were also challenging the requirement to
    obtain State permits under the Clean Water Act's National Pollution
    Discharge Elimination System program. That challenge resulted in a
    companion decision to Hancock that also sided with the Federal
    agencies.\19\ Again, Congress acted swiftly to amend the Clean Water
    Act to require Federal agencies to obtain discharge permits.\20\ More
    recently, DOD spent years challenging State authority over cleanup of
    contamination at Federal facilities, ultimately losing in the Tenth
    Circuit.\21\
    ---------------------------------------------------------------------------
        \17\ 426 U.S. 167 (1976).
        \18\ Pub.L. 95-95, Sec. 116(a).
        \19\ Environmental Protection Agency v. California, 426 U.S. 200
    (1976).
        \20\ Pub.L. 95-217, Sec. 60, 61(a).
        \21\ U.S. v. Colorado, 990 F.2d 1565 (10th Cir. 1993).
    ---------------------------------------------------------------------------
        Nonetheless, DOD continues to challenge State authority over
    cleanup of contamination at its sites, and in particular to resist
    State authority over cleanup of munitions-related contamination. In
    addition, DOD is challenging a number of other environmental
    requirements:
          DOD is refusing to pay penalties for violations of State
    requirements related to underground petroleum storage tanks.\22\
    ---------------------------------------------------------------------------
        \22\ See exchange of letters between State of Hawaii Department of
    Health and U.S. Army Garrison Hawaii, attached hereto as Exhibit 5.
    ---------------------------------------------------------------------------
          DOD is appealing a determination by an EPA Administrative
    Law Judge that the Clean Air Act's command that penalties for
    violations of the Act be calculated by considering, inter alia, the
    economic benefit of the violator's non-compliance applies to Federal
    agencies.\23\
    ---------------------------------------------------------------------------
        \23\ In the Matter of U.S. Army, Fort Wainwright Central Heating &
    Power Plant, Docket No. CAA-10-99-0121. Administrative Law Judge Susan
    L. Biro entered the order against the Air Force on April 30, 2002.
    Section 113 of the Clean Air Act, 42 U.S.C. Sec. 7413, provides, in
    relevant part, that the Administrator may ``issue an administrative
    order against any person assessing a civil administrative penalty of up
    to $25,000, per day,'' and that in calculating the penalty, the
    Administrator ``shall take into consideration . . . the economic
    benefit of noncompliance.'' 42 U.S.C. Sec. 7413(d) and (e). Section 302
    of the Clean Air Act, 42 U.S.C. Sec. 7602, defines ``person'' to
    include ``any agency, department, or instrumentality of the United
    States.'' Finally, the waiver of Federal sovereign immunity in section
    118 of the Clean Air Act, 42 U.S.C. Sec. 7418 states that Federal
    agencies ``shall be subject to . . . all Federal . . . process and
    sanctions . . . in the same manner, and to the same extent as any
    nongovernmental entity.''
    ---------------------------------------------------------------------------
          DOD is challenging EPA's authority under CERCLA to
    oversee cleanups at Federal facilities on the National Priorities
    List.\24\ Specifically, the Air Force has disputed EPA's authority to
    require enforceable ``institutional controls'' and other enforceable
    requirements in CERCLA Records of Decision. ``Institutional controls''
    are legal mechanisms to restrict land or water use, and are often
    employed to reduce the cost of cleaning up contaminated sites. We
    understand that this dispute is holding up cleanups at over 20 DOD
    CERCLA sites.
    ---------------------------------------------------------------------------
        \24\ See documents posted on EPA's Federal Facilities Restoration
    and Reuse Office website at http://epa.gov/swerffrr/whatsnew.htm
    ---------------------------------------------------------------------------
          DOD is also challenging State authority to require
    compliance with State institutional control laws. For example, last
    year DOD testified in opposition to institutional control legislation
    then pending in Colorado. The pending legislation (which passed without
    a single ``nay'' vote and was subsequently enacted into law) created a
    statutory ``environmental covenant'' as a mechanism to enforce
    institutional controls imposed as part of contaminated site cleanups
    under various environmental laws. DOD argues, inter alia, that State
    institutional controls do not fall within the scope of RCRA's waiver of
    Federal sovereign immunity for State requirements respecting the
    control and abatement of solid waste.\25\
    ---------------------------------------------------------------------------
        \25\ Personal knowledge of author.

    The huge extent of DOD's environmental contamination also demands a
            regulatory structure that ensures accountability
        Accountability is also important because of the environmental
    impact of military activities. DOD is responsible for far more
    contaminated sites than any other Federal agency. There are 165 Federal
    facilities currently listed on the Superfund National Priorities List;
    129 of these are DOD facilities.\26\ All together, DOD is responsible
    for addressing over 28,500 potentially contaminated sites across the
    country.\27\ Through fiscal year 2001, DOD had spent almost $25 billion
    cleaning up sites for which it is responsible.\28\ DOD recently
    estimated that it would take another $14 billion to complete the
    remediation of environmental contamination at active, realigning and
    closing sites.\29\
    ---------------------------------------------------------------------------
        \26\ Information from EPA's Superfund website at http://
    www.epa.gov/superfund/sites/query/queryhtm/nplfin1.htm and from
    telephone conversation with EPA's Federal Facilities Restoration and
    Reuse Office.
        \27\ See ``Fiscal Year 2001 Defense Environmental Restoration
    Program Annual Report to Congress,'' p. 19. This document is available
    at the following DOD website: http://www.dtic.mil/envirodod/DERP/
    DERP.htm
        \28\ Id., p. 21.
        \29\ Id., pp. 27-28, attached as Exhibit 6. The $14 billion figure
    combines the total cost-to-complete sums given for active installations
    in Figure 8 and Base Realignment and Closure Sites in Figure 10 of
    Exhibit 6.
    ---------------------------------------------------------------------------
        The $14 billion figure is only a small portion of the remaining
    costs to remediate DOD's environmental contamination. It does not
    include the cost to remediate thousands of potentially contaminated
    ``Formerly Used Defense Sites'' (``FUDS'') in the United States and its
    territories and possessions. FUDS are properties that were formerly
    owned, leased, possessed, or operated by DOD or its components.\30\
    While many FUDS contain ``run of the mill'' environmental contaminants
    such as solvents, petroleum storage tanks, etc., unexploded ordnance is
    a big problem at many of these sites. The GAO estimated recently that
    unexploded ordnance contamination may exist at over 1,600 FUDS.\31\
    ---------------------------------------------------------------------------
        \30\ ``Environmental Contamination: Cleanup Actions at Formerly
    Used Defense Sites,'' GAO-01-557 (July 2001), p. 1.
        \31\ Id. at 2.
    ---------------------------------------------------------------------------
        DOD recently estimated that it may cost $19 billion to clean up
    contaminated FUDS.\32\ However, this figure is likely understated, for
    two reasons. First, many States have found that DOD's determinations
    that specific FUDS do not require any cleanup action are frequently
    mistaken. In 1998, the Association of State and Territorial Solid Waste
    Management Officials (ASTSWMO) conducted a survey of its members
    regarding ``no further action'' determinations made by the Army Corps
    of Engineers. Nearly half of the responding States (19 out of 39) said
    that they had reason to believe that the Corps had not made sound
    environmental decisions in making some ``no further action''
    determinations.\33\ Six States had conducted their own environmental or
    health assessments at 66 of the sites the Corps had designated ``no
    further action.'' These States determined that 32 of the 66 did require
    cleanup.\34\ Contamination at the 32 sites included high levels of
    PCBs, unexploded ordnance, leaking underground storage tanks, asbestos,
    and groundwater contamination.\35\
    ---------------------------------------------------------------------------
        \32\ ``Fiscal Year 2001 Defense Environmental Restoration Program
    Annual Report to Congress,'' p. 126.
        \33\ ``No Further Action Survey,'' Association of State and
    Territorial Solid Waste Management Officials, December 1998, p. 2.
    Several of the states that responded they did not have any reason to
    doubt the Corps' determinations commented that they had not assessed
    the sites themselves. The complete survey is available on ASTSWMO's
    website at http://www.astswmo.org/Publications/bookshelf.htm by
    clicking on ``Federal Facilities'' and then on ``No Further Action
    Review Efforts at Formerly Used Defense Sites (NOFA FUDS) December,
    1998.''
        \34\ Id. at 1.
        \35\ Id.
    ---------------------------------------------------------------------------
        The second reason DOD's cost estimate for completing cleanup of
    FUDS is likely understated is that DOD has not yet been able to develop
    reliable cost estimates for cleaning up unexploded ordnance and related
    contamination. DOD's recent estimates for unexploded ordnance cleanup
    vary wildly from $14 billion to over $100 billion.\36\ There are two
    causes for DOD's failure to develop reliable cost estimates for range
    cleanup. First, DOD does not have a consistent cost methodology.\37\
    The second, and more fundamental reason, is that DOD has very little
    data on the nature and extent of unexploded ordnance contamination at
    current and former ranges.\38\
    ---------------------------------------------------------------------------
        \36\ ``DOD Training Range Cleanup Cost Estimates Are Likely
    Understated,'' GAO-01-479 (April 2001), pp. 5 and 13.
        \37\ Id. at 4.
        \38\ See Id. at 5; ``Fiscal Year 2001 Defense Environmental
    Restoration Program Annual Report to Congress,'' Table C-1, showing
    status of military installations and FUDS with estimated cleanup
    completion cost estimates exceeding $5 million, attached hereto as
    Exhibit 7.
    ---------------------------------------------------------------------------
        Despite this lack of data, we do know that the costs of detecting
    and remediating unexploded ordnance contamination are extremely high.
    For example, through fiscal year 2001, DOD had spent over $37 million
    investigating and remediating the former Lowry Bombing and Gunnery
    Range (a/k/a Buckley Field) near Aurora, Colorado, and expected to
    spend an additional $71 million to complete cleanup of this site.\39\
    At the Spring Valley site in the District of Columbia, DOD had spent
    over $24 million through fiscal year 2001, and expected to spend an
    additional $73 million.\40\
    ---------------------------------------------------------------------------
        \39\ Exhibit 7, p. C-1-22.
        \40\ Id. at p. C-1-25.
    ---------------------------------------------------------------------------
        The bottom line is that unexploded ordnance contamination, both at
    facilities under DOD's jurisdiction and at FUDS represents an
    environmental problem of huge dimensions. According to a recent GAO
    report, DOD estimates that approximately 16 million acres of land on
    transferred ranges are potentially contaminated with unexploded
    ordnance.\41\ ``Transferred'' ranges are ranges that have been
    transferred to the management of another Federal agency, or have been
    transferred out of Federal ownership;\42\ they are a large part of the
    FUDS problem. The costs for cleaning up sites like the Lowry Range and
    Spring Valley may be dwarfed by the sheer magnitude of the remaining
    FUDS sites, such as the 288 FUDS projects in California that DOD
    estimates may cost $2.6 billion to address.\43\
    ---------------------------------------------------------------------------
        \41\ ``DOD Training Range Cleanup Cost Estimates Are Likely
    Understated,'' GAO-01-479 (April 2001), p. 11.
        \42\ Id. at 8.
        \43\ Exhibit 7, pp. C-1-8 to C-1-21.
    ---------------------------------------------------------------------------
        In addition to the obvious explosive hazards, some constituents of
    explosives and munitions contamination have toxic or potential
    carcinogenic effects,\44\ and can cause groundwater contamination. For
    example, live-fire training at the Massachusetts Military Reservation
    (MMR) over several decades has contaminated large amounts of
    groundwater in the sole source drinking water aquifer for the Cape Cod
    area. Recently, the Town of Bourne closed half of its drinking water
    supply wells due to contamination by perchlorate, an explosives-related
    contaminant that migrated from MMR. Subsequently, DOD spent
    approximately $2 million to hook the town up to an alternate water
    supply.\45\ Reportedly, explosives contaminants have been detected in
    about 100 groundwater monitoring wells on MMR, and have exceed EPA
    health advisory limits at 53 of those wells.\46\
    ---------------------------------------------------------------------------
        \44\ Fact sheets or public health statements, all published by the
    Agency for Toxic Substances and Disease Registry, for four common
    explosives or munitions constituents (DNT, RDX, TNT and white
    phosphorous), are attached as Exhibit 8. Also included in Exhibit 8 are
    two EPA documents regarding perchlorate, another common munitions
    constituent.
        \45\ ``Military Cash Flows for New Water Supply,'' story by Kevin
    Dennehy, Cape Cod Times, April 24, 2002, attached as Exhibit 9.
        \46\ ``Work to Clean Cape Cod Continues as Pentagon Seeks
    Environmental Exemptions,'' 5/27/2002 story by Melissa Robinson,
    reported in Boston Globe Online, 5/29/2002, attached as Exhibit 10.
    ---------------------------------------------------------------------------
    DOD's proposed amendments to RCRA, CERCLA and the Clean Air Act are
            far-reaching, and go far beyond DOD's stated concerns with
            readiness
        DOD has repeatedly stated that its proposed amendments are very
    narrowly focused.\47\ We disagree. As described above, neither the
    Clean Air Act, RCRA, nor CERCLA has had any adverse impacts on
    readiness. All three laws have provisions allowing for waivers of their
    requirements sufficient to address any potential readiness concerns.
    And the history of Federal agency compliance with environmental
    requirements suggests that there is no such thing as a ``narrow''
    environmental exemption for Federal facilities. Certainly, when one
    considers the magnitude of the munitions contamination problem at FUDS
    and other DOD sites, and the groundwater contamination at the
    Massachusetts Military Reservation, any change in DOD's obligation to
    comply with cleanup requirements has the potential for large impacts.
    But the bottom line is that the language of DOD's proposed amendments
    would create wide loopholes and jeopardize environmental protection,
    without any corresponding benefit to readiness.
    ---------------------------------------------------------------------------
        \47\ See, e.g., Exhibit 2.
    ---------------------------------------------------------------------------
    DOD's amendment to RCRA would likely preempt State and EPA authority
            over munitions-related and explosives-related wastes at active
            military bases, closing bases, FUDS, and private contractor
            sites
        Proposed section 2019 would define when munitions, explosives,
    unexploded ordnance and constituents thereof are ``solid wastes'' under
    RCRA, and thus potentially subject to regulation as hazardous
    wastes.\48\ By narrowing this definition, DOD intends to limit the
    scope of EPA's authority under RCRA, as well as State authority under
    State hazardous waste laws. The change in the definition of ``solid
    waste'' would affect State authority because the term appears in RCRA's
    waiver of Federal sovereign immunity--the provision of the law that
    makes DOD subject to State hazardous waste laws. The RCRA waiver of
    immunity applies to State ``requirements respecting the control and
    abatement of solid waste or hazardous waste disposal and
    management.''\49\ Thus, the scope of the waiver will likely be affected
    by amendments to RCRA's definition of solid waste. And because waivers
    of immunity are construed extremely narrowly, any ambiguity in the
    definition of solid waste will likely be construed in the way that
    results in the narrowest waiver.\50\ By re-defining ``solid waste'' in
    a very limited fashion, DOD's proposed amendment will likely preempt
    State authority over munitions, explosives and the like not only at
    operational ranges, but--contrary to DOD's assertions--also at FUDS, at
    DOD sites other than ranges, and even at private defense contractor
    sites.
    ---------------------------------------------------------------------------
        \48\ See 42 U.S.C. Sec. 6903(5) and (27). Section 6903(5) defines
    ``hazardous waste'' as ``a solid waste, or combination of solid
    wastes,'' that exhibits certain characteristics. Section 6903(27)
    defines ``solid waste.'' Therefore, hazardous wastes are a subset of
    solid wastes.
        \49\ 42 U.S.C. Sec. 6961(a).
        \50\ Department of Energy v. Ohio, 503 U.S. 607 (1992).

              DOD's proposed amendment to the definition of solid waste
            provides:
              Sec. 2019. Range management and restoration
                (a) Definition of Solid Waste.--(1)(A) The term ``solid
            waste,'' as used in the Solid Waste Disposal Act, as amended
            (42 U.S.C. 6901 et seq.), includes explosives, unexploded
            ordnance, munitions, munition fragments, or constituents
            thereof that----
              (i) are or have been deposited, incident to their normal and
            expected use, on an operational range, and----
              (I) are removed from the operational range for reclamation,
            treatment, disposal, treatment prior to disposal, or storage
            prior to or in lieu of reclamation, treatment, disposal, or
            treatment prior to disposal;
              (II) are recovered, collected, and then disposed of by burial
            or landfilling; or
              (III) migrate off an operational range and are not addressed
            under the Comprehensive Environmental Response, Compensation,
            and Liability Act of 1980, as amended (42 U.S.C. 9601 et seq.);
            or
              (ii) are deposited, incident to their normal and expected
            use, off an operational range, and are not promptly rendered
            safe or retrieved.
              (B) The explosives, unexploded ordnance, munitions, munitions
            fragments, or constituents thereof defined as solid waste in
            subsection (a)(1)(A) shall be subject to the provisions of the
            Solid Waste Disposal Act, as amended, including but not limited
            to sections 7002 and 7003, where applicable.
              (2) Except as set out in subsection (1), the term ``solid
            waste,'' as used in the Solid Waste Disposal Act, as amended,
            does not include explosives, unexploded ordnance, munitions,
            munitions fragments, or constituents thereof that----
              (A) are used in training military personnel or explosives and
            munitions emergency response specialists (including training in
            proper destruction of unused propellant or other munitions);
              (B) are used in research, development, testing, and
            evaluation of military munitions, weapons, or weapon systems;
              (C) are or have been deposited, incident to their normal and
            expected use, on an operational range, except as provided in
            subsection (a)(1)(A);
              (D) are deposited, incident to their normal and expected use,
            off an operational range, and are promptly rendered safe or
            retrieved; or
              (E) are recovered, collected, and destroyed on-range during
            range clearance activities at operational ranges, but not
            including the on-range burial of unexploded ordnance and
            contaminants when the burial is not a result of product use.''

        Under section 2019(a)(1), munitions are solid wastes only under the
    following circumstances: (1) they are or have been deposited, incident
    to their normal and expected use, on an operational range, and then one
    of three things happens: they are removed from the range; or are
    recovered and then buried; or migrate off range and are not addressed
    under CERCLA; or (2) they are deposited, incident to their normal and
    expected use, off an operational range, and are not promptly addressed.
        Under this definition, munitions that were deposited on an
    operational range and simply remain there after the range closed or was
    transferred are not solid wastes, and thus cannot be hazardous wastes.
    Such residual unexploded ordnance and explosives contamination is
    precisely the problem at closed, transferring and transferred ranges.
    Contrary to DOD's assertions that this amendment only affects operating
    ranges, this amendment would also likely preempt States and EPA from
    regulating the cleanup of unexploded ordnance and related materials at
    the 16 million acres of land on closed, transferred, and transferring
    ranges (i.e., FUDS) that are potentially contaminated with unexploded
    ordnance. In many cases, this ordnance was deposited on these ranges
    decades ago.
        Proposed section 2019(a) also likely overrides State and EPA
    authority to address munitions-related environmental contamination that
    is not on a range at all. To cite just one example, in the normal
    course of maintaining artillery shells, DOD generates a waste stream
    from ammunition washout known commonly as ``pink water.'' The water is
    pink due to the presence of trinitrotoluene (TNT), a constituent of
    both explosives and munitions (and a possible human carcinogen,
    according to EPA),\51\ in the water. Ammunition washout is not
    conducted on operational ranges, but has in at least one case led to
    environmental contamination. At Pueblo Chemical Depot in Colorado,
    ammunition washout created a plume of TNT-contaminated groundwater that
    has traveled over two miles, and has gone off the Depot to contaminate
    drinking water wells nearby. Under section 2019(a)(1)(A), this plume of
    TNT-contaminated groundwater would not be considered a solid waste (and
    thus excluded from the scope of the RCRA waiver of immunity), because
    the explosives constituents have not been deposited on an operational
    range, nor have they been deposited ``incident to their normal and
    expected use,'' off an operational range. A similar result would obtain
    at the Los Alamos National Laboratory (a Department of Energy
    facility), where explosives constituents have contaminated groundwater
    approximately 1,000 feet below the ground surface.
    ---------------------------------------------------------------------------
        \51\ See Exhibit 8.
    ---------------------------------------------------------------------------
        Proposed section 2019(a)(2) also exempts from the definition of
    solid waste explosives and munitions that are used in training or in
    research, development, testing, and evaluation of military munitions,
    weapons, or weapon systems. This provision appears to create a
    wholesale exemption for explosives and munitions. It applies to any
    facility with such wastes, including private contractor sites and
    Department of Energy facilities. It arguably even extends to the
    chemical munitions scheduled for destruction at various military
    installations around the country.
    DOD's proposed amendments to CERCLA are also far-reaching, and also go
            far beyond DOD's stated concerns with readiness
        Proposed section 2019(b) has similarly broad consequences for
    CERCLA. This provision states:

              (b)(1) Definition of Release.--(1) The term ``release,'' as
            used in the Comprehensive Environmental Response, Compensation,
            and Liability Act of 1980, as amended (42 U.S.C. 9601 et seq.),
            includes the deposit off an operational range, or the migration
            off an operational range, of any explosives, unexploded
            ordnance, munitions, munitions fragments, or constituents
            thereof.
              (2) The term ``release,'' as used in the Comprehensive
            Environmental Response, Compensation, and Liability Act of
            1980, as amended (42 U.S.C. 9601 et seq.), does not include the
            deposit or presence on an operational range of any explosives,
            unexploded ordnance, munitions, munitions fragments, or
            constituents thereof that are or have been deposited thereon
            incident to their normal and expected use.
              (3)(A) Notwithstanding the provisions of paragraph (2),
            nothing in this section affects the authority of the President
            under section 106(a) of the Comprehensive Environmental
            Response, Compensation, and Liability Act of 1980, as amended
            (42 U.S.C. 9606(a)) to address an imminent and substantial
            endangerment to the public health or welfare or the
            environment, including orders to test and monitor.
              (B) Nothing in this section affects the ability of a State or
            other person to request that the President exercise such
            authority under section 106(a) of such Act to address an
            imminent and substantial endangerment to the public health or
            welfare or the environment.
              (4) Nothing in this section affects the authority of the
            Department to protect the environment, safety, and health on
            operational ranges.

        This provision restricts the definition of ``release'' in CERCLA by
    excluding ``the deposit or presence on an operational range of any
    explosives, unexploded ordnance, munitions, munitions fragments, or
    constituents thereof that have been deposited thereon incident to their
    normal and expected use.'' This provision may restrict EPA's authority
    to use CERCLA section 106 authorities. CERCLA section 106 authorizes
    action when the President determines the ``may be an imminent and
    substantial endangerment,'' Section 2019(b)(3)(A) appears to preserve
    only 106 authorities for situations that pose an actual ``imminent and
    substantial endangerment.'' The scope of section 106 authority has been
    the subject of much litigation, including the impact of the phrase
    ``may be'' in section 106.\52\
    ---------------------------------------------------------------------------
        \52\ See, e.g., U.S. v. Conservation Chemical Co., 619 F. Supp.
    162, 192 (D.C. Mo. 1985).
    ---------------------------------------------------------------------------
        While section 2019 (b) may preserve a narrowed scope of EPA
    authority under section 106, its overall impact on cleanup of
    munitions-related contamination on operational ranges is far from
    clear. The provision appears to eliminate section 104 removal and
    remedial authority for munitions-related and explosives-related
    contamination. It also appears to remove cleanup of such contamination
    from the scope of CERCLA section 120 interagency agreement for sites on
    the National Priorities List. This means that EPA will no longer have
    authority to select (or concur in) remedies for munitions- and
    explosives-related contamination at NPL sites. This provision may also
    be read to eliminate the requirement that investigation and cleanup of
    these contaminants be conducted according to standards that apply to
    all other CERCLA cleanups. By removing these public involvement,
    procedural, substantive and technical safeguards, section 2019(b) would
    severely undermine the goal of achieving cleanups that adequately
    protect human health and the environment.
        The change in the definition of ``release'' also may narrow the
    scope of State authority under State superfund-type laws, because it
    may narrow CERCLA's waiver of immunity. CERCLA's waiver of immunity
    includes State laws ``concerning removal and remedial action.''\53\
    CERCLA's definitions of ``removal'' and ``remedial action'' are limited
    by the definition of ``release.''\54\ Thus, by excluding the ``deposit
    or presence on an operational range of any explosives, unexploded
    ordnance, munitions, munitions fragments, or constituents thereof that
    are or have been deposited thereon incident to their normal and
    expected use'' from the definition of ``release,'' this provision
    arguably precludes State superfund authority over munitions, etc. on
    operational ranges.
    ---------------------------------------------------------------------------
        \53\ 42 U.S.C. Sec. 9620(a)(4).
        \54\ 42 U.S.C. Sec. 9601(23) and (24).
    ---------------------------------------------------------------------------
        Read in conjunction with proposed Sec. 2019(b)(1), Sec. 2019(b)(2)
    also likely precludes existing CERCLA and State authority over
    munitions-related contamination on closed, transferred, and
    transferring ranges (i.e., FUDS). This statutory construction follows
    from the fact that section 2019(b)(2) excludes the both the deposit and
    the presence of munitions-related contamination on an operational range
    from the definition of release. Consequently, the presence on a closed,
    transferring or transferred range of munitions- or explosives-related
    contamination that was deposited when the range was operational could
    only be considered a ``release'' if Sec. 2019(b)(1) specifically
    included the presence of munitions-related contamination on a non-
    operational range in its definition of release. However,
    Sec. 2019(b)(1) is ambiguous in this regard. Its reference to ``the
    presence off an operational range'' could be read to mean the presence
    on land adjacent to an operational range, rather than meaning
    munitions-related contamination that was originally deposited on an
    operational range, and remains on the range after the range is no
    longer operational. With respect to State authority, any ambiguities in
    a waiver of immunity will be construed in favor of a narrow waiver.
    Additionally, there are several States whose superfund-type laws are
    tied to definitions in CERCLA. Amending CERCLA's definition of
    ``release'' will effect corresponding changes in these States'
    authorities.
        Finally, by re-defining ``solid waste'' to exclude munitions
    constituents, 2019(a)(1) may exclude such constituents from being
    ``hazardous substances.'' This includes many chemicals that may have
    carcinogenic or other toxic effects.\55\ Because natural resource
    damages are only available for injuries caused by hazardous substances,
    this amendment may preclude States from bringing natural resource
    damage claims for munitions-related contamination.
    ---------------------------------------------------------------------------
        \55\ See, e.g., Exhibit 8.
    ---------------------------------------------------------------------------

                                   CONCLUSION

        In closing, we do not believe that DOD's far-reaching amendments to
    RCRA, CERCLA, or the Clean Air Act are warranted. These laws have not
    impacted readiness, and are not likely to do so. As shown in the
    preceding portions of our testimony, DOD's proposed amendments to RCRA,
    CERCLA and the Clean Air Act have little to do with maintaining
    readiness. They would, however, provide substantial exemptions from
    environmental requirements. The activities that DOD would exempt from
    the environmental laws can have significant adverse impacts on human
    health and the environment. States have historically worked
    cooperatively with DOD to find solutions to environmental problems at
    military installations that minimize regulatory burdens while
    protecting human health and the environment. We would be glad to
    continue this work with DOD to develop ways to address its readiness
    concerns within the context of the existing environmental laws.
        We would also urge that any proposed legislation on this issue go
    through a normal legislative process with public hearings before the
    committees with jurisdiction over the environmental laws. The normal
    legislative process allows interested parties, including the States--
    which are the primary implementers and enforcers of the nation's
    environmental laws--an opportunity to present their views on these
    matters. Such hearings would allow deliberate consideration of any
    proposed amendments. As we have shown above, seemingly small amendments
    to the environmental laws can have large effects, particularly when
    State authority over Federal agencies is at stake.

                                     ______

      Responses of Daniel S. Miller to Additional Questions from Senator
                                     Smith

        Question 1. Isn't it true that no State has ever litigated to
    verdict any enforcement action against the United States involving
    alleged violations at an operational range? If your answer is not an
    unqualified admission the statement is true, please provide exact
    citation to every such case, including the date on which the verdict
    was rendered.
        Response. I do not know the answer to this question.

        Question 2. Please explain, with as much particularity as you are
    able, with citation to all relevant laws, regulations and case
    authorities, your opinion that ``proposed section 2019 defines
    munitions, explosives, unexploded ordinance and related constituents
    [as] solid waste and thus subject to EPA regulation under RCRA as
    hazardous waste'', given that proposed section 2019 only refers to such
    material that travels OFF range.
        Response. This question reflects minor errors in the transcript of
    the hearing, and misapprehends my testimony. What I said on July 9 was
    ``Proposed section 2019 defines when munitions, explosives, unexploded
    ordinance and related constituents are solid wastes and thus subject to
    EPA regulation under RCRA as hazardous wastes.'' From the wording of
    your question and from the wording of proposed section 2019, I infer
    that you understood me to say that section 2019 defines any munitions,
    explosives, unexploded ordinance and related constituents that are or
    have been deposited, incident to their normal and expected use, on an
    operational range as solid waste. In fact, as I explained at the
    hearing, under section 2019, munitions, explosives and the like can
    only be solid wastes in extremely limited circumstances. And that is
    precisely the States' concern.
        By substantially narrowing the statutory definition of solid waste,
    section 2019 may preempt state and EPA authority to regulate the
    investigation and cleanup of used or fired munitions and related
    constituents. Such munitions and related constituents pose significant
    risks to human health and the environment at thousands of former
    military ranges across the country. In addition to the obvious
    explosive hazard from unexploded ordnance, these wastes may cause
    significant soil and groundwater contamination. For example, the Wall
    Street Journal recently reported on widespread perchlorate
    contamination from various defense and defense contractor
    facilities.\1\
    ---------------------------------------------------------------------------
        \1\ A copy of the article, which appeared on December 16, 2002, is
    attached.
    ---------------------------------------------------------------------------
        In addition to the sites mentioned in the Journal article, there is
    increasing evidence that munitions on active ranges are causing
    groundwater contamination. Perchlorate from military training
    activities at Aberdeen Proving Grounds and Massachusetts Military
    Reservation has contaminated municipal drinking water wells near those
    bases, forcing closure of the wells.[add cite to newspaper articles]
    Perchlorate contamination associated with military training activities
    has been found at other sites as well.\2\ Section 2019 would likely
    preempt states' authority to protect their citizens from groundwater
    contamination in these cases. The states should not be preempted from
    taking measures to protect their citizens and their groundwater
    supplies, nor from requiring measures to reduce or eliminate explosive
    hazards on lands no longer under military jurisdiction. As discussed in
    my written statement, and in the answer to question number 4, below,
    the military has simply provided no evidence that such state authority
    has or would adversely impact readiness.
    ---------------------------------------------------------------------------
        \2\ See Baltimore Sun article of October 3, 2002, and November 13,
    2002 (attached), and Exhibits 9 and 10 of my July written testimony
    before your committee.
    ---------------------------------------------------------------------------
        My oral statement briefly explained why section 2019 likely
    preempts state and EPA authority over munitions and related
    constituents not just at operational ranges, but in nearly all
    circumstances. I provided a more detailed analysis of this issue in my
    written testimony, reproduced below:
        The change in [RCRA's] definition of ``solid waste'' would affect
    state authority because the term appears in RCRA's waiver of Federal
    sovereign immunity--the provision of the law that makes DOD subject to
    state hazardous waste laws. The RCRA waiver of immunity applies to
    state ``requirements respecting the control and abatement of solid
    waste or hazardous waste disposal and management.'' [42 U.S.C.
    Sec. 6961] Thus, the scope of the waiver will likely be affected by
    amendments to RCRA's definition of solid waste. And because waivers of
    immunity are construed extremely narrowly, any ambiguity in the
    definition of solid waste will likely be construed in the way that
    results in the narrowest waiver. [Department of Energy v. Ohio, 503
    U.S. 607 (1992).] By re-defining ``solid waste'' in a very limited
    fashion, DOD's proposed amendment will likely preempt state authority
    over munitions, explosives and the like not only at operational ranges,
    but--contrary to DOD's assertions--also at FUDS [Formerly Used Defense
    Sites], at DOD sites other than ranges, and even at private defense
    contractor sites.
        Under section 2019(a)(1), munitions are solid wastes only under the
    following circumstances: (1) they are or have been deposited, incident
    to their normal and expected use, on an operational range, and then one
    of three things happens: they are removed from the range; or are
    recovered and then buried; or migrate off range and are not addressed
    under CERCLA; or (2) they are deposited, incident to their normal and
    expected use, off an operational range, and are not promptly addressed.
        Under this definition, munitions that were deposited on an
    operational range and simply remain there after the range closed or was
    transferred are not solid wastes, and thus cannot be hazardous wastes.
    Such residual unexploded ordnance and explosives contamination is
    precisely the problem at closed, transferring and transferred ranges.
    Contrary to DOD's assertions that this amendment only affects operating
    ranges, this amendment would also likely preempt states and EPA from
    regulating the cleanup of unexploded ordnance and related materials at
    the 16 million acres of land on closed, transferred, and transferring
    ranges (i.e., FUDS) that are potentially contaminated with unexploded
    ordnance. In many cases, this ordnance was deposited on these ranges
    decades ago.
        Proposed section 2019(a) also likely overrides state and EPA
    authority to address munitions-related environmental contamination that
    is not on a range at all. To cite just one example, in the normal
    course of maintaining artillery shells, DOD generates a waste stream
    from ammunition washout known commonly as ``pink water.'' The water is
    pink due to the presence of trinitrotoluene (TNT), a constituent of
    both explosives and munitions (and a possible human carcinogen,
    according to EPA), in the water. Ammunition washout is not conducted on
    operational ranges, but has in at least one case led to environmental
    contamination. At Pueblo Chemical Depot in Colorado, ammunition washout
    created a plume of TNT-contaminated groundwater that has traveled over
    two miles, and has gone off the Depot to contaminate drinking water
    wells nearby. Under section 2019(a)(1)(A), this plume of TNT-
    contaminated groundwater would not be considered a solid waste (and
    thus excluded from the scope of the RCRA waiver of immunity), because
    the explosives constituents have not been deposited on an operational
    range, nor have they been deposited ``incident to their normal and
    expected use,'' off an operational range. A similar result would obtain
    at the Los Alamos National Laboratory (a Department of Energy
    facility), where explosives constituents have contaminated groundwater
    approximately 1,000 feet below the ground surface.
        (Emphasis in original, footnotes omitted, brackets added.)

        Question 3. Isn't the implication of your testimony misleading that
    ``proposed section 2019 defines munitions, explosives, unexploded
    ordinance and related constituents [as] solid waste and thus subject to
    EPA regulation under RCRA as hazardous waste'', because proposed
    section 2019 only refers to such material that travels OFF range, and
    therefore the military would be greatly assisted by this clarification
    in terms of such material that stays ON an operational range?
        Response. As with the previous question, this question implies that
    I testified section 2019 defines any munitions, explosives, unexploded
    ordinance and related constituents as solid waste and thus subject to
    EPA regulation under RCRA as hazardous waste. And as explained in the
    answer to the previous question, my testimony regarding section 2019 is
    quite different. Far from defining all, or nearly all, used or fired
    munitions to be solid wastes, section 2019(a)(1) excludes nearly all
    used or fired munitions, etc., from the statutory definition of solid
    waste. This is not a ``clarification,'' but a reversal of existing law.
        As noted in my written testimony, section 2019(a)(2) appears to
    provide a broad exemption for munitions, etc. wholly unrelated to their
    use on ranges. This provision excludes explosives, unexploded ordnance,
    munitions, munitions fragments, or constituents thereof that are used
    in research, development, testing, and evaluation of military
    munitions, weapons, or weapon systems. Section 2019(a)(2) appears to
    exempt not only munitions, etc. that are used in the ways just
    described, but any munitions of that type. Under section 2019(a)(2),
    even wastes from the manufacture of explosives are excluded from the
    definition of solid waste.
        To summarize, I interpret section 2019 to exclude from RCRA's
    statutory definition of solid waste munitions, explosives, unexploded
    ordnance and related constituents that:

          Have been deposited, incident to their normal and
    expected use, on an operational range, and remain on an operational
    range;
          Have been deposited, incident to their normal and
    expected use, on an operational range, and remain there, even after the
    range is no longer operational, and even after the range is no longer
    in Federal ownership (DOD estimates that it has transferred
    approximately 16 million acres of former ranges contaminated with such
    munitions out of Federal ownership or to other Federal agencies);
          Have been deposited off an operational range, where the
    deposit was not incident to their normal and expected use (e.g,
    contamination from ammunition washout, as described above);
          Have been deposited, incident to their normal and
    expected use, off an operational range, and are promptly rendered safe
    or retrieved;
          Migrate off an operational range and are ``addressed''
    under CERCLA; or
          Are of a type that is used in training or research,
    development, testing and evaluation of military munitions, weapons, or
    weapon systems.

        Together, paragraphs (1) and (2) of section 2019(a) create a 180
    degree change from the current law. Presently, discarded military
    munitions are statutory solid wastes under RCRA. To explain why, a
    brief explanation of the history of military munitions' status under
    RCRA is helpful:
          RCRA contains a broad statutory definition of solid waste
    and hazardous waste. Statutory hazardous wastes area a subset of
    statutory solid wastes. Statutory hazardous wastes may be subject to
    RCRA's corrective action (cleanup) authorities and to clean up under
    RCRA's imminent and substantial endangerment provisions. Statutory
    solid wastes may be subject to clean up under RCRA's imminent and
    substantial endangerment provisions.
          RCRA directs the Environmental Protection Agency to
    define a subset of statutory solid and hazardous wastes as regulatory
    solid and hazardous wastes. Regulatory hazardous wastes are a subset of
    regulatory solid wastes, and are subject to the cleanup authorities
    described above, and are also subject to RCRA's permitting requirements
    and the full panoply of RCRA regulations governing the safe generation,
    storage, treatment, transportation and disposal of hazardous waste.
          In 1979, a Federal district court held that military
    munitions were not statutory solid wastes. Romero-Barcelo v. Brown, 478
    F. Supp. 646 (D. Puerto Rico 1979).
          In 1992, Congress overturned the Romero-Barcelo decision
    when it passed the Federal Facility Compliance Act, Pub. L. No. 102-
    386. In that Act, Congress directed EPA to promulgate regulations
    defining when military munitions become regulatory hazardous wastes. 42
    U.S.C. Sec. 6924(y) Because regulatory hazardous wastes are a subset of
    statutory solid wastes, this means that military munitions are
    statutory solid wastes if they meet the statutory definition, i.e., if
    they have been ``discarded.'' See 42 U.S.C. Sec. 6903(27). In crafting
    this provision, the Conference Committee rejected a Senate proposal
    that would have allowed DOD to ``self-regulate'' munitions under RCRA.
    H. Conf. Rep. No. 102-886, at 28-29. Thus, in passing the Federal
    Facility Compliance Act, Congress intended that states and EPA regulate
    the management of waste munitions.
          In 1995, EPA published its proposed ``munitions rule'' in
    the Federal Register. 60 Fed. Reg. 56468. Among other things, EPA
    proposed that munitions used for their intended purpose (including
    research, development, testing and training) are not regulatory
    hazardous wastes. Id. at 56492.
          In the proposed munitions rule, EPA also proposed to
    define when used or fired military munitions would be statutory solid
    wastes. Id. EPA proposed that munitions discharged during military
    activities at ranges would be statutory solid wastes when the munitions
    were left in place at the time the range closed or was transferred out
    of DOD control. EPA also proposed that this provision would terminate
    upon DOD's promulgation of a rule governing the cleanup of munitions on
    closed and transferred ranges, and that DOD's rule would supersede all
    RCRA authority over such munitions. Id.
          Some commenters on the proposed rule noted that the
    proposal to ``sunset'' regulation of discharged munitions as statutory
    solid wastes upon promulgation of a DOD rule directly conflicted with
    the Federal Facility Compliance Act, and that EPA had no authority to
    preempt state authority to regulate discharged munitions. Commenters
    also argued that DOD had no authority to promulgate such a rule.
          EPA's final munitions rule contained the proposal that
    munitions used for their intended purpose are not regulatory hazardous
    wastes. 62 Fed. Reg. 6654 (Feb. 12, 1997), codified at 40 CFR
    Sec. 266.202.
          The final munitions rule postponed action on the proposal
    to define when discharged munitions would be statutory solid wastes, as
    well as the sunset provision. Id. at 6632. EPA's decision to postpone
    action was based partly on the comments objecting it had no authority
    to preempt state authority, and partly on the fact that DOD had not
    promulgated its ``range rule.'' Id. EPA stated that it would further
    evaluate the legal arguments, and would also evaluate DOD's proposed
    range rule; if DOD failed to promulgate the rule, or if EPA found the
    rule to be insufficiently protective, EPA stated it would be prepared
    to address the issue under Federal environmental laws. Id. EPA's
    decision to postpone this provision does not mean that discharged
    munitions on ranges are not statutory solid wastes; as noted above,
    under the Federal Facility Compliance Act, if such munitions are
    discarded, they are statutory solid wastes.
          Later in 1997, DOD published its proposed range rule
    addressing cleanup of munitions on closed and transferred ranges in the
    Federal Register. 62 Fed. Reg. 50796 (Sept. 27, 1997). Again, states
    and others commented that DOD did not have statutory authority to
    promulgate such a rule, and that in passing the Federal Facility
    Compliance Act, Congress had intended for states and EPA to oversee
    cleanup of munitions on closed and transferred ranges.
          In 2000, 24 Attorneys General sent a letter to the Office
    of Management and Budget, requesting that OMB disapprove DOD's proposed
    range rule. The Environmental Council of the States also adopted a
    resolution opposing the proposed rule.
          DOD recalled the proposed rule from OMB in November 2000,
    and committed to engage the states and EPA to find an acceptable way to
    manage munitions response actions.\3\
    ---------------------------------------------------------------------------
        \3\ Over the past 18 months, several states (Colorado, Alaska,
    California and Illinois) representing State organizations (National
    Association of Attorneys General, Environmental Council of the States,
    and the Association of State and Territorial Solid Waste Management
    Officials), EPA, DOD, and civilian federal agencies have been engaged
    in discussions to find mutually acceptable ways to conduct munitions
    response actions at sites other than operational ranges. The charter
    for this group (the ``Munitions Response Committee'') states that one
    of the desired outcomes is development of collaborative decision-making
    processes for munitions response actions. The charter also states that
    these collaborative processes will (subject to reservation of rights
    and dispute resolution provisions) afford the states the opportunity to
    review and approve the adequacy of munitions response actions.
    ---------------------------------------------------------------------------
        Thus, the current state of the law is that used or fired munitions
    and related constituents on ranges are statutory solid wastes if they
    are discarded.
        As to whether military readiness would be greatly assisted by
    enacting section 2019, I do not think that it would. As I stated in my
    oral and written statements, I am not aware of any instances in which
    the application of RCRA has adversely impacted readiness.

        Question 4. In light of the very compelling testimony of the
    generals and admiral, which you heard, as to the urgent need for these
    minor clarifications in the law, and in light of the absence of
    enforcement actions brought by states involving operational ranges, why
    do you still oppose the RRPI's RCRA and CERCLA provisions for
    operational ranges? Would you even oppose these two proposals if there
    were a 3 or 5 year sunset provision attached?
        Response. The short answer is that we oppose these amendments
    because they likely preempt state and EPA authority to require the
    cleanup of military munitions and related constituents in virtually all
    circumstances, with no corresponding benefit to military readiness. We
    would oppose them even with a sunset provision.
        With all due respect to the Generals and the Admiral, nowhere in
    their testimony did they cite even one instance in which a state or EPA
    has taken action under CERCLA or RCRA that had any impact on military
    readiness whatsoever. As far as I am aware, DOD as a whole has failed
    to cite any cases in which RCRA or CERCLA have adversely impacted
    readiness. And if such a case ever occurred, both RCRA and CERCLA allow
    DOD to seek case-by-case exemptions from their requirements.
        DOD's entire argument for preempting state and EPA authority under
    these laws is premised on the fact that some environmental groups and
    Alaskan Native Tribes filed a citizen suit regarding Ft. Richardson.
    The State of Alaska is not a party to this suit. According to General
    Keane's testimony:
        The Army at Fort Richardson, Alaska, is currently facing a lawsuit
    alleging violations of the Clean Water Act, RCRA, and CERCLA associated
    with firing munitions at Eagle River Flats range. The RCRA allegation
    is that munitions fired into or onto Eagle River Flats are RCRA
    statutory solid wastes that present an imminent and substantial
    endangerment to health or the environment. The CERCLA allegations are
    that the act of firing munitions onto an operational range and the
    continued presence of those munitions on the range constitute a release
    of hazardous substances potentially requiring reporting,
    characterization, and remediation.
        If munitions used for their intended purpose are considered to be
    statutory solid waste, the Army could be forced to perform corrective
    action or remediation of Eagle River Flats. Live-fire training during
    the remediation would be impossible, and the only mortar and artillery
    impact area at Fort Richardson would be lost to training. The 172d
    Infantry Brigade would be unable to conduct a large portion of its
    mission essential live-fire training operations.
        If courts agree with the plaintiff, then live-fire training and
    testing operations at every Army range (more than 400) could be subject
    to CERCLA response requirements. Further lawsuits could compel the
    Environmental Protection Agency and state regulators in all U.S.
    regions to enforce the same standards on other military ranges. These
    findings would not only dramatically impact the readiness of the 172d
    Infantry Brigade in Alaska, but the entire Department of Defense.
        I disagree with General Keane's testimony in several respects.
    First, there is no RCRA imminent and substantial endangerment
    allegation in the Ft. Richardson citizen suit. Plaintiffs in that suit
    did allege violation of an Alaska statutory provision that prohibits
    pollution.\4\ The cited provision is not part of Alaska's hazardous
    waste regulatory program; indeed, Alaska does not have a state
    hazardous waste program, much less an authorized program under RCRA.
    Plaintiffs in this case have never even alleged that used or fired
    munitions are a RCRA statutory solid waste.\5\ Thus, if this case were
    decided adversely to the Army, it would not set any precedent regarding
    RCRA.
    ---------------------------------------------------------------------------
        \4\ Plaintiff's Amended Complaint for Declaratory and Injunctive
    Relief, para 29, Alaska Community Action on Toxics, v. United States,
    A02-0083 CV, filed June 26, 2002. Plaintiffs' complaint never cites
    RCRA's imminent and substantial endangerment provision; instead, it
    cites 42 U.S.C. Sec. 6972(a)(1)(A), the RCRA citizen suit provisions
    authorizing suit against any person ``alleged to be in violation of any
    permit, standard, regulation, condition, requirement, prohibition, or
    order which has become effective pursuant to this chapter'' as a
    jurisdictional basis for the suit. In paragraph 29, plaintiffs allege
    that tne Army's violation of Alaska Statutes Sec. 46.03.710 constitutes
    a violation fo RCRA's vaiver of immunity provision, 42 U.S.C.
    Sec. 6961(a). Alaska Statutes Sec. 46.03.710 states:'' A person may not
    pollute or add to the pollution of the air, land, subsurface land, or
    water of the state.''
        \5\ See Plaintiffs' Amended Complaint, supra note 3.
    ---------------------------------------------------------------------------
        Even if General Keane's characterization of the plaintiff's
    complaint were correct, the remainder of his testimony on this point is
    mere speculation without any basis in fact. I would agree that if the
    court in this case held that munitions used for their intended purpose
    are statutory solid wastes under RCRA or hazardous substances under
    CERCLA, they would potentially be subject to corrective action or
    remediation. However, no remediation would be required if the munitions
    did not pose a risk to human health or the environment. Alaska
    environmental officials who have been involved in oversight of the
    CERCLA investigation and cleanup at Ft. Richardson have concluded that,
    aside from certain white phosphorous contamination that the Army is
    remediating, the remaining fired munitions at the Eagle River Flats
    area of Ft. Richardson do not warrant an environmental response at this
    time.
        Assuming that some remediation were required, there is no evidence
    whatsoever that it would make live-fire training in the Eagle River
    Flats area impossible. Remedial approaches to contaminated sites are
    quite varied, and inevitably site-specific. Without knowing the
    specific details of what the problem is, and what the remedial
    alternatives are, there is simply no basis for assessing the impacts,
    if any, of cleanup on training.
        States have regulated cleanup of contaminated Department of Energy
    nuclear weapons facilities and Department of Defense sites for decades.
    We believe that state and EPA regulators have demonstrated their
    consistent willingness to resolve differences with regulated Federal
    officials, and to develop creative approaches that balance defense
    concerns with environmental protection. But if there were a case where
    state or EPA regulators believed that environmental contamination at an
    operation range required remediation to protect human health and the
    environment, and adverse impacts on readiness could not be avoided,
    RCRA and CERCLA already allow DOD to seek an exemption from such
    requirements on the basis of national security.\6\
    ---------------------------------------------------------------------------
        \6\ As I noted in my written testimony, these are not burdensome
    requirements: All that is required is a finding that doing so is
    necessary for national security or is in the paramount interests of the
    United States, depending on the particular statute at issue. For
    example, President Bush recently made such a finding under RCRA
    exempting the Air Force facility ``near Groom Lake, Nevada, from any
    Federal, State, interstate or local provision respecting the control
    and abatement of solid waste or hazardous waste disposal that would
    require the disclosure of classified information concerning the
    operating location to any authorized person.'' [66 Fed. Reg. 50807
    (Oct. 4, 2001)] The entire finding consists of three paragraphs.
    President Clinton made similar findings annually from 1996 through 2000
    regarding this same matter to prevent the release of classified
    information. We understand that to date, the exemption provisions of
    the Clean Air Act, RCRA and CERCLA have never been invoked because of
    military readiness concerns.''
        To the extent the military has found the exemption process
    burdensome, it appars from General Williams' testimony that that is the
    result of agency practice, not the requirements of the law. See
    transcript of July 9, 2002 hearing at 22-24.

        Question 5. In your written testimony you stated that the
    likelihood of conflict between RCRA and CERCLA and military readiness
    ``is remote''. Are you unfamiliar with the two cases the military is
    currently facing, and the other cases where RCRA and CERCLA were
    applied at private skeet ranges? Don't those cases dramatize the
    urgency of the problem?
        Response. I assume that one of the cases you are referring to is
    the citizen suit filed regarding Ft. Richardson discussed in the
    previous answer. I don't know what the other case you have in mind is.
    I am familiar with one case that held fired lead shot at a gun club
    constituted a solid waste under RCRA. Connecticut Coastal Fishermen's
    Association v. Remington Arms Co., Inc., 989 F.2d 1305 (2d Cir. 1993).
    I disagree that either of these cases demonstrates an urgent need to
    preempt state and EPA authority over cleanup of nearly all munitions-
    related environmental contamination, regardless of whether such
    contamination is at an active range. If anything, the Remington Arms
    case suggests precisely the opposite: it was decided nearly 10 years
    ago, but the Department of Defense has yet to identify a single
    instance in which RCRA has adversely impacted readiness.
        The underlying premise of this question seems to be that if used or
    fired military munitions are considered statutory solid wastes under
    RCRA, or hazardous substances under CERCLA, the inevitable consequence
    will be that states or EPA will impose remedial requirements that will
    conflict with military readiness. As indicated in the response to the
    previous question, there is no evidence to suggest this is the case.
    Cleanup of munitions-related contamination at former military ranges
    now in private ownership does not impact military readiness in any way.
    Cleanup of munitions-related contamination at defense contractor sites
    does not impact military readiness in any way. Yet, the proposed
    amendments would likely preempt state and/or EPA authority over many of
    these situations.
        The amendments would also likely preempt state and EPA authority
    over cleanup of munitions-related contamination at current military
    facilities. For example, as mentioned in my written testimony, it would
    likely preempt Colorado and New Mexico from regulating the cleanup of
    explosives-related contamination at the Pueblo Chemical Depot and the
    Los Alamos National Lab, respectively.\7\ In neither case is the
    state's action adversely impacting readiness.
    ---------------------------------------------------------------------------
        \7\ To quote from my testimony at page 13: At Pueblo chemical Depot
    in Colorado, ammunition washout created a plume of TNT-contaminated
    groundwater that has traveled over 2 miles, and has gone off the Depot
    to contaminate drinking water wells nearby. Under section
    2019(a)(1)(A), this plume of TNT-contaminated groundwater would not be
    considered a solid water (and thus excluded from the scope of the RCRA
    waiver of immunity), because the explosives constituents have not been
    deposited on an operational range, nor have they been deposited
    ``incident to their normal and expected use,'' off an operational
    range. A similar result would obtain at the Los Alamos National
    Laboratory (a Department of Energy facility), where explosives
    constituents have contaminated groundwater approximately 1,000 feet
    below the ground surface.
    ---------------------------------------------------------------------------
        DOD simply has presented no evidence that application of these laws
    has ever actually adversely impacted readiness. Even with respect to
    operational ranges, General Keane's testimony, as previously mentioned,
    does not describe any instances in which RCRA or CERCLA cleanup
    requirements have adversely impacted readiness. Instead, he speculates
    that remedial measures will be required in the Eagle River Flats area
    of Ft. Richardson, and that those measures would necessarily adversely
    impact readiness.
        Compare General Keane's testimony with that of General Fogelsong:

              UXO and the disposal of residue material (primarily scrap
            metal) on air-to-ground ranges is one area where we have
            extensively investigated our practices and policies. UXO and
            range residue (used targets, inert ordnance, etc.) physically
            occupy only a small part of any air-to-ground range, but its
            presence is an increasingly expensive problem. The costs
            associated with clearing closed ranges have led us to the
            conclusion that we need to plan and manage for the entire life-
            cycle of a range.

              The Air Force first started clearing ordnance from active
            ranges in the late 1940's. Active range clearance not only
            provides for safe target area operations, but also provides
            airfield-recovery training for our Explosive Ordnance Disposal
            technicians. Air Force policy requires that active air-to-
            ground ranges be cleared on a quarterly, annual, and 5-year
            basis at varying distances from each target. Our currently
            scheduled UXO and residue removal program, along with
            modifications to our range-clearing practices, will ensure
            long-term range sustainability and the safety of personnel on
            the range. Our ultimate goal is to manage our ranges
            effectively and efficiently throughout the life-cycle process
            providing for sustainable operations, safe and effective UXO
            management and long-term environmental stewardship.

        When faced with groundwater contamination problems, environmental
    regulators often consider ``source removal'' as part of a comprehensive
    cleanup strategy. The Air Force's forward-looking range clearance
    policies could constitute source removal at Air Force ranges where
    munitions constituents is causing groundwater contamination. Combined
    with groundwater treatment systems, the Air Force's own sustainable
    range management practices may be sufficient to address such
    groundwater contamination. My point here is not to say that the Air
    Force has developed a ``one size fits all'' solution to munitions-
    related contamination at active ranges, but simply to point out that
    there is no inherent conflict between range use and environmental
    remediation.
        There is, as noted in response to question number 1, increasing
    evidence that operational military ranges can cause significant
    groundwater contamination. There is no evidence that addressing this
    contamination under RCRA or CERCLA will adversely impact readiness. We
    recognize the importance of maintaining military readiness. But we
    object to these amendments, which would likely preempt our authority,
    and that of EPA, in virtually all cases where munitions and related
    constituents are threatening human health or the environment, even
    though exercising such authority will seldom, if ever, have any impact
    on readiness whatsoever. And again, in the event such a conflict does
    occur, the Department of Defense may avail itself of the exemption
    provisions that currently exist in CERCLA and RCRA.

        Question 6. Isn't it true that the purpose of the 1918 Migratory
    Bird Treaty Act was to stop the intentional hunting of migratory birds
    for commercial reasons such as feathers for ladies' hats? The recent
    D.C. District Court case held that the MBTA as written prohibits both
    intentional and unintentional harm to migratory birds. Isn't this a
    perversion of congressional intent? Wouldn't the RRPI merely restore
    the original intent of the Act?
        Response. I believe that this question was erroneously directed to
    me. I did not testify regarding the Migratory Bird Treaty Act, and do
    not know the answer to these questions.

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     Statement of Stanley Phillippe on behalf of the Association of State
           and Territorial Solid Waste Management Officials (ASTSWMO)

        Good afternoon. I am Stanley Phillippe and I am the chair of the
    Federal Facilities Research Subcommittee of the Association of State
    and Territorial Solid Waste Management Officials (ASTSWMO). Thank you
    for inviting ASTSWMO to testify concerning recent Department of Defense
    proposed amendments to the Resource Conservation and Recovery Act
    (RCRA), and to the Comprehensive Environmental Response, Compensation
    and Liability Act (CERCLA), as those relate to military range
    activities. ASTSWMO is a non-partisan, non-profit association which
    represents the collective interests of waste program directors of the
    nation's States and Territories. Our membership is drawn exclusively
    from State employees who deal daily with the many management and
    resource implications of the State waste management and remediation
    programs they direct. ASTSWMO's membership includes the State
    regulatory program managers for solid waste, hazardous waste,
    underground storage tanks, and waste minimization and recycling
    programs as well as State cleanup and remedial program managers. Among
    those are State experts specializing in providing regulatory support to
    Federal Facilities, primarily in situations of base closure and
    remediation of Formerly Used Defense Sites. We deal with active
    military facilities as well, particularly with those industrial-like
    activities which may require permits under RCRA. As the day-to-day
    implementers of the State and Federal cleanup programs, we think we can
    offer a unique perspective to this dialog.
        I would also like to commend this committee and the Senate Armed
    Services Committee for your measured, careful approach to these
    suggested amendments. Our Association has strongly recommended that any
    action that Congress might consider along the lines suggested by the
    Department of Defense first be scrutinized and openly debated in the
    committees of primary jurisdiction over the environmental laws. We are
    very glad that the bipartisan support for that consideration has
    resulted in this Senate hearing and thank you for your careful
    attention to this very important matter.
        I am here today to tell you of our Association's opposition to the
    amending language for RCRA and CERCLA proposed by the Department of
    Defense, and to urge that you oppose these changes to these key
    environmental statutes. But, I am also here to assure you of our
    Association members' strong and continuing support for ensuring the
    readiness of our Armed Forces. Despite our criticism of the specific
    changes DoD has proposed to RCRA and CERCLA, we believe that State
    regulators have consistently worked with DoD and the Military Services
    to resolve range-related issues dealing with those statutes, and that
    together we have found workable solutions in the case of operating,
    active ranges.
        That said, our examination of the proposed legislative April 2002
    package DoD has titled the ``Readiness and Range Preservation
    Initiative'' leads us to question both the need and wisdom for the
    proposed changes to RCRA's definition of ``solid waste'' and to
    CERCLA's definition of a ``release''.
          As to the question of the compelling need for such
    changes, we are unaware of cases where State regulators have adversely
    impacted readiness by seeking compliance with RCRA. Among the
    supporting rationale DoD has released with the proposed legislative
    package, we only found a single reference to possible problems which
    could come from a citizen suit challenging RCRA compliance at Fort
    Richardson, Alaska. We have been told there is a similar citizen suit-
    generated RCRA situation with range use in Puerto Rico. Frankly, on
    their face, these are not real barriers, but only potential problems of
    doubtful probability, dependent upon decisions to be made in Federal
    courts. The absence of any report of existing situations involving
    adverse RCRA impacts on readiness seems to confirm our belief that
    normal RCRA regulation has not impeded military training on operational
    ranges, and is not likely to do so. A report last month from the
    General Accounting Office focused on encroachment issues facing DoD.\1\
    This report did not identify RCRA or CERCLA as presenting problems for
    DoD's training mission. There will be peripheral issues that may arise
    and several States have worked with military installations to address
    certain issues that are the result of range use through permits or best
    practices. For example, open burning of excess propellents left over
    from live fire may be managed under permit in order to ensure that
    releases are properly controlled. However, those kinds of activities
    have no effect on the conduct of the range firing itself.
    ---------------------------------------------------------------------------
        \1\ United States General Accounting Office, ``Military Training:
    DOD Lacks a Comprehensive Plan to Manage Encroachment on Training
    Ranges'' (GAO-02-614), June 2002.
    ---------------------------------------------------------------------------
         As a practical matter, the application of State authority
    under RCRA to operating ranges would become necessary when a State
    believed intervention was necessary to protect the public from
    ``imminent and substantial endangerment'' as defined in Section 7003 of
    the statute. Surely, no responsible DoD official would tolerate such a
    situation. Our experience is that DoD and the Military Services give
    scrupulous attention to enforcing safety during inherently dangerous
    live-fire training.
         A more common State interest is the application of RCRA
    and State hazardous waste statutes to clean up requirements for closed
    and closing ranges that have been or will be transferred out of Federal
    ownership for civilian use. It is our view that these cleanup
    requirements have nothing to do with current training activities and do
    not potentially endanger the effectiveness of training. However, the
    proposed DoD changes to the statutory definitions of ``solid waste''
    and to ``releases'' would arguably not only affect the application of
    the statute to operating ranges, but by narrowing the definitions used
    throughout the rest of the statutes, confuse the application of the
    definitions in other parts of the statutes. These definitions are
    critical to issues such as jurisdictional roles and State authority
    over such cleanups. Our experience is that RCRA definitional issues are
    very complex, and require close examination. We believe our State legal
    colleagues, represented here by the National Association of Attorneys
    General, are best equipped to deal with those arguments, but as the
    State implementers of hazardous waste and cleanup laws, we believe that
    this is one of those cases where the first principle is to ``do no
    harm''. These suggested changes to RCRA and CERCLA reach beyond DoD's
    immediate needs and could affect our later jurisdiction over cleanup of
    unexploded ordnance and other environmental hazards that may have been
    caused by range use. Instead of seeking exemptions from RCRA and
    CERCLA, we think DoD and the Military Services should concentrate their
    efforts on prevention of the migration of munitions and explosive
    related wastes by pathways that will affect human health and the
    environment. In the long run, this approach will do much more to meet
    their needs for sustainable ranges.
         Even if there is a situation where the Department of
    Defense should reach an absolute barrier caused by RCRA or CERCLA, we
    would note that there is still extraordinary Presidential authority to
    suspend application of these statutes for national interests, [i.e.,
    RCRA Section 6001 or CERCLA Section 120(j)(1)] so that essential
    training activity could be continued. We are not suggesting that use of
    these authorities should become routine, nor that they be used lightly.
    Like all extraordinary powers, they must be used with respect and
    circumspection. But the fact remains that they are available. Congress
    has already provided remedies for extraordinary circumstances, and if
    they are insufficient, a much stronger justification needs to be put
    forth.
        Let me close with the thought that the proposed changes to RCRA and
    CERCLA are not justified by any demonstration that RCRA or CERCLA have
    adversely impacted readiness, are unnecessary, and certainly may have
    undesirable consequences for the nation's primary hazardous waste and
    remediation statutes. I want to reiterate our desire to assist the
    Department of Defense and Military Services in more practical ways. We
    will continue to work with them to assist in making effective use of
    their active range resources, and to improve the likelihood that those
    ranges will continue to be sustainable into the indefinite future. Like
    any other citizens, we have an obligation to actively assist our armed
    forces in improving and maintaining the high level of preparedness
    required by the times. Their well being and readiness are very
    important to us, and to all citizens, and we will work actively with
    their representatives to find ways to make range operations safe and
    workable.
        Thank you for requesting our testimony regarding this important
    legislation. I would be happy to respond to any questions you might
    have regarding our views.

    Responses of William H. Hurd to Additional Questions from Senator Smith
        Question 1. Are the emergency exemptions provided in some
    environmental laws sufficient to address the readiness concerns raised
    by DoD?
        Response. With respect to RCRA and CERCLA, which were the focus on
    my testimony, I am of the opinion that the emergency exemptions are not
    sufficient to address the readiness concerns raised by DoD.

        Question 2. Please give us your perspective on Mr. Miller's
    testimony on the viability of Presidential waivers under RCRA and/or
    CERCLA.
        Response. Mr. Miller has expressed the view that the procedures for
    obtaining Presidential waivers are ``not burdensome.'' I disagree.
        To elaborate, Mr. Miller says: ``All that is required is a finding
    that doing so [granting a Presidential exemption] is necessary for
    national security or is in the paramount interest of the United
    States.'' Written Testimony of Daniel S. Miller, p. 4 (emphasis added).
    Contrary to his suggestion, that legal standard is not a low threshold,
    but a very high one. Moreover, Presidential findings are not lightly
    made. A substantial amount of staff work must be performed by the
    Department of Defense before approaching the President to request such
    a finding. Mr. Miller ignores that burden. He also ignores the fact
    that, as Commander-in-Chief, the President must necessarily focus on
    issues of strategic and global importance. This is especially so in
    time of national crisis. He should not be required to turn his
    attention from those weighty concerns in order to give individual base
    commanders or training officers permission to do their job in an
    effective manner.
        Mr. Miller cites the RCRA exemption process, 42 U.S.C.
    Sec. 6961(a), as an example of a procedure that he believes supports
    his position. Written Testimony of Daniel S. Miller, p. 4 n6. But an
    examination of that statute shows additional reasons why the current
    process is burdensome and insufficient. First, a Presidential exemption
    shall not exceed 1 year. At the end of that period, a new 1-year
    exemption can be made, but only if the President makes a new
    determination, thereby repeating much of the burden imposed by the
    original exemption.
        Second, in some cases under RCRA, no Presidential exemption can be
    granted at all. Even where the President determines that the exemption
    is ``in the paramount interest of the United States,'' the statute says
    that ``[n]o such exemption shall be granted due to a lack of
    appropriation unless the President shall have specifically requested
    such appropriation as part of the budgetary process and the Congress
    shall have failed to make available such requested appropriation.''
    Sec. 6961(a).
        In a world where military needs may change overnight, this
    limitation is altogether unreasonable. The effect of the statute is
    that training officers and base commanders must predict what their
    mission will be long in advance of being assigned that mission or even
    knowing the events that led to that assignment. They must also
    ascertain how the accomplishment of that mission may be impeded by
    RCRA, and make a timely request through their chains-of-command for any
    funds they will need to perform that new mission in a manner that is
    RCRA-compliant. Similar prescience is also required of all those who
    prepare military budget requests for transmittal by the President to
    Congress. Requirements such as these are not merely burdensome; they
    are impossible.