[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


                                 ______

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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

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                                                                   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\
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    \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\
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    \1\ See Exhibit 1. The resolution should become final and effective 
on or about July 8, 2002.
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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\
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    \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.
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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.
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    \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\
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    \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).
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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\
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    \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.''
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      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\
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    \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\
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    \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.
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    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\
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    \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.
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    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\
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    \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.
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    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\
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    \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.
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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\
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    \1\ A copy of the article, which appeared on December 16, 2002, is 
attached.
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    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.
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    \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.
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    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\
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    \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.
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    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\
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    \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.
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    \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.
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     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.
  

                                  
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