[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
H.R. 1835, ``NATIONAL SECURITY READINESS ACT''
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LEGISLATIVE HEARING
before the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
Tuesday, May 6, 2003
__________
Serial No. 108-18
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/
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______
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COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska Dale E. Kildee, Michigan
W.J. ``Billy'' Tauzin, Louisiana Eni F.H. Faleomavaega, American
Jim Saxton, New Jersey Samoa
Elton Gallegly, California Neil Abercrombie, Hawaii
John J. Duncan, Jr., Tennessee Solomon P. Ortiz, Texas
Wayne T. Gilchrest, Maryland Frank Pallone, Jr., New Jersey
Ken Calvert, California Calvin M. Dooley, California
Scott McInnis, Colorado Donna M. Christensen, Virgin
Barbara Cubin, Wyoming Islands
George Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Jay Inslee, Washington
Carolina Grace F. Napolitano, California
Chris Cannon, Utah Tom Udall, New Mexico
John E. Peterson, Pennsylvania Mark Udall, Colorado
Jim Gibbons, Nevada, Anibal Acevedo-Vila, Puerto Rico
Vice Chairman Brad Carson, Oklahoma
Mark E. Souder, Indiana Raul M. Grijalva, Arizona
Greg Walden, Oregon Dennis A. Cardoza, California
Thomas G. Tancredo, Colorado Madeleine Z. Bordallo, Guam
J.D. Hayworth, Arizona George Miller, California
Tom Osborne, Nebraska Edward J. Markey, Massachusetts
Jeff Flake, Arizona Ruben Hinojosa, Texas
Dennis R. Rehberg, Montana Ciro D. Rodriguez, Texas
Rick Renzi, Arizona Joe Baca, California
Tom Cole, Oklahoma Betty McCollum, Minnesota
Stevan Pearce, New Mexico
Rob Bishop, Utah
Devin Nunes, California
VACANCY
Steven J. Ding, Chief of Staff
Lisa Pittman, Chief Counsel
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
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C O N T E N T S
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Page
Hearing held on May 6, 2003...................................... 1
Statement of Members:
Calvert, Hon. Ken, a Representative in Congress from the
State of California, Prepared statement of................. 3
Dingell, Hon. John D., a Representative in Congress from the
State of Michigan, Prepared statement of................... 6
Gallegly, Hon. Elton, a Representative in Congress from the
State of California, Prepared statement of................. 4
Pombo, Hon. Richard W., a Representative in Congress from the
State of California........................................ 1
Rahall, Hon. Nick J. II, a Representative in Congress from
the State of West Virginia................................. 5
Statement of Witnesses:
Bowdon, Major General William G., III, Commanding General,
Marine Corps Base Camp Pendleton, California, U.S. Marine
Corps...................................................... 21
Prepared statement of.................................... 22
Response to questions submitted for the record........... 138
DiGiovanni, Colonel Frank C., Chief, Ranges, Airfields and
Airspace, Operation and Requirements Division, Air Combat
Command, U.S. Department of the Air Force.................. 31
Prepared statement of.................................... 32
Response to questions submitted for the record........... 140
Fil, Brigadier General Joseph F., Jr., Commanding General,
National Training Center and Fort Irwin, California, U.S.
Department of the Army..................................... 8
Prepared statement of.................................... 10
Response to questions submitted for the record........... 142
Hathaway, Rear Admiral Jeffrey J., Department of Homeland
Security, United States Coast Guard........................ 34
Prepared statement of.................................... 35
Response to questions submitted for the record........... 147
Hogarth, Dr. William T., Assistant Administrator for
Fisheries, National Marine Fisheries Service, National
Oceanic and Atmospheric Administration, U.S. Department of
Commerce................................................... 86
Prepared statement of.................................... 88
Response to questions submitted for the record........... 147
Ketten, Dr. Darlene R., Senior Scientist, Biology Department,
Woods Hole Oceanographic Institution....................... 111
Prepared statement of.................................... 113
Kunich, John C., Associate Professor of Law, Roger Williams
University School of Law................................... 117
Prepared statement of.................................... 119
Manson, Hon. Craig, Assistant Secretary for Fish and Wildlife
and Parks, U.S. Department of the Interior................. 81
Prepared statement of.................................... 82
Response to questions submitted for the record........... 155
Moeller, Rear Admiral Robert T., Deputy Chief of Staff for
Operations/Plans and Policy, U.S. Pacific Fleet, U.S. Navy. 15
Prepared statement of.................................... 17
Response to questions submitted for the record........... 163
Nachtigall, Dr. Paul E., Director, Marine Mammal Research
Program, Hawaii Institute of Marine Biology, University of
Hawaii..................................................... 108
Prepared statement of.................................... 109
Steuer, Karen, Senior Policy Advisor, National Environmental
Trust...................................................... 123
Prepared statement of.................................... 125
LEGISLATIVE HEARING ON H.R. 1835, TO AMEND THE ENDANGERED SPECIES ACT
OF 1973 TO LIMIT DESIGNATION AS CRITICAL HABITAT OF AREAS OWNED OR
CONTROLLED BY THE DEPARTMENT OF DEFENSE, AND FOR OTHER PURPOSES.
(``NATIONAL SECURITY READINESS ACT'')
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Tuesday, May 6, 2003
U.S. House of Representatives
Committee on Resources
Washington, DC
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The Committee met, pursuant to notice, at 2 p.m., in room
1324, Longworth House Office Building, Hon. Richard W. Pombo
(Chairman of the Committee) presiding.
Present: Representatives Pombo, Gilchrest, Jones, Gibbons,
Walden, Osborne, Renzi, Cole, Pearce, Nunes, Rahall, Kildee,
Faleomavaega, Abercrombie, Pallone, Christensen, Tom Udall,
Mark Udall, Grijalva, Bordallo, and Rodriguez.
STATEMENT OF HON. RICHARD POMBO, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
The Chairman. The Committee will come to order.
In accordance with Resources Committee Rule 4(G)(1), only
the Chairman and Ranking Member may make opening statements. If
any members want to insert statements in the record, I ask
unanimous consent that they be allowed to do so. Without
objection, so ordered.
You gentlemen just take a seat for the time being. We're
going to have a couple of opening statements and then we'll go
to the first panel.
Today we are holding a hearing on H.R. 1835, the National
Security Readiness Act, a bill that amends the Endangered
Species Act and the Marine Mammal Protection Act. H.R. 1835 is
a product of the Department of Defense Authorization Act for
the upcoming fiscal year.
The Department of Defense, in its reauthorization bill,
proposed changes to laws under the jurisdiction of this
Committee. The Administration proposed these same changes last
year. However, the process was much different last year. The
Committee on Resources waived its jurisdiction and was not
involved in the decisionmaking process. Rather than do that
again this year, I requested that this Committee maintain its
authority over those provisions within our jurisdiction. I was
joined in that decision by our Ranking Member, Mr. Rahall, and
I believe many members applauded that decision.
However, some members have questioned why we're holding
this hearing at the full Committee and not at the Subcommittee
level. There are a number of reasons. First and foremost is
timing. While I want our Committee to remain relevant to this
process, time is not on our side. If we are to remain relevant,
we need to move a bill by this Wednesday, as our colleagues on
the Armed Services Committee begin their action on the larger
'04 reauthorization bill this Friday.
For those of you who are not entirely happy with the bill
that we are considering today, I must reiterate that the only
way to maintain jurisdiction and relevancy in this process, as
the Committee with expertise on these subjects, is for us to
take action rather than the Armed Services Committee, which
does not have our level of expertise.
Secondly, legislation dealing with the Endangered Species
Act has traditionally been held at full Committee. Since 1995,
when the Republicans took control of the House and the
Resources Committee became the primary Committee of
jurisdiction over endangered species, this bill contains ESA
amendments and therefore was held at the full Committee level.
The majority of the ESA amendments contained in H.R. 1835
should be nothing new to most members on this Committee. This
language was approved by the House last Congress.
In brief, H.R. 1835 codifies a policy started in 1997 under
the Clinton Administration, and brought forward by the current
administration. It allows DOD to cooperate with the U.S. Fish
and Wildlife Service and State wildlife departments in
responsibly managing habitat, all the while providing the
Administration the ability to base critical habitat
determination on confirmed scientific data.
Furthermore, H.R. 1835 clarifies the original intent of the
ESA by providing balance to departments when they are
confronted with having to weigh their primary missions up
against mandates to protect species under the Act.
While the bill also contains provisions which amend the
Marine Mammal Protection Act, these too, for the most part,
should not be new issues for members. The Subcommittee on
Fisheries, Conservation, and Wildlife and Oceans has held a
number of hearings on these issues. In addition, the proposed
change to the definition of harassment was first suggested by
the National Research Council in 2000, and H.R. 1835 contains
the exact language recommended by both the Clinton and Bush
administrations.
Others might argue that we haven't looked sufficiently at
some of these changes in the bill. The Subcommittee on
Fisheries, Conservation, Wildlife and Oceans has held three
hearings on the reauthorization of the Marine Mammal Protection
Act and has heard from 42 witnesses. Since the harassment
definition was first proposed during the Clinton
administration, this issue has been adequately aired at these
hearings. This is not a new issue.
The changes proposed to the Marine Mammal Protection Act in
H.R. 1835 are based on scientific recommendations from the
National Research Council and the Administration's managing
agencies, the Department of Commerce and Interior. The agencies
have told us that these amendments will provide them with one
standard, which they prefer.
In addition, it will clarify certain provisions in the
Marine Mammal Protection Act to allow them to better enforce
and implement the law. If the agencies can better enforce the
law, marine mammals will be better protected.
I look forward to hearing from our distinguished witnesses
today, and I recognize the Ranking Member, Mr. Rahall, for his
opening statement.
[The prepared statement of Mr. Calvert follows:]
Statement of The Honorable Ken Calvert, a Representative in Congress
from the State of California
Mr. Chairman, Ranking Member Rahall, and distinguished Members of
the Committee, I am pleased and honored to have Major General William
G. Bowdon, III, Commanding General of the Marine Corps Base Camp
Pendleton testifying on behalf of the Marine Corps regarding the effect
of encroachment and the impact it has on the training and readiness
requirements of our Marines. While only a small part of Camp Pendleton
is in my district, the issue of encroachment and the ability of our
military as a whole to train in a real-world environment is of great
concern and a responsibility that I take very seriously.
The National Security Readiness Act represents a crucial balance
between the stewardship of our lands and the ability for our military
to train for combat missions. The proposal is the result of years of
collaboration between the Department of Defense, the Fish and Wildlife
Service and many other stakeholders and I commend their hard work.
The ability of our Armed Forces to achieve their mission and
survive in combat depends directly on the quality of training they
receive. We must provide for the best possible training environment,
and encroachments have in fact degraded and continue to degrade our
military's capability to provide for realistic combat training. Our
military ranges and operation areas are irreplaceable national assets;
their primary role is to help train our military forces and test
equipment to sustain a strong defense. However, encroachment-induced
restrictions are limiting realistic preparations for combat.
Unrealistic training options or so-called ``workarounds'' that are used
to satisfy regulatory rules designed for non-military activities are a
``death-by-a-thousand-cuts'' approach to encroachment and access
problems on our ranges.
From 1992-2002, DoD has invested over $50 billion on environmental
programs. Ecosystem management initiatives and species counts indicate
that DoD is successfully managing and implementing environmental
stewardship programs. It is clear that DoD is fully committed to
effectively managing our natural resources. Additionally, military
training has proven compatible with healthy ecoststems, endangered
species populations and in compliance with applicable law.
In 2000, U.S. Fish and Wildlife Service (FWS) proposed to designate
57% of Camp Pendleton has critical habitat. Fortunately, the Marine
Corps worked with Fish and Wildlife to develop a scientifically and
legally based policy that precluded the need to designate vast training
ranges as critical habitat that would effectively restrict almost two
thirds of the base from military training use. Despite their hard work
the compromise was challenged in court by special interest groups,
causing Fish and Wildlife to withdraw the habitat designation rules in
compliance with court dictates. Upon codifying existing FWS policy we
can avoid similar attempts from special interests groups and allow DoD
to cooperate with FWS to make critical habitat designation obsolete
with the implementation of Integrated Natural Resources Management
Plans. If this legislation is not passed, environmental litigation may
still cause 57% of Camp Pendleton to be designated at critical habitat.
I believe that Integrated Natural Resources Management Plans
present a viable alternative to critical habitat designation on our
military training ranges. These management plans represent the very
best of what can happen when government agencies work together. We must
not impede on the military's ability to train effectively and
precisely. I urge the Members of this Committee to pass this
legislation so that our nation's greatest strength can continue to
perform at the level that our citizens require.
______
[The prepared statement of Mr. Gallegly follows:]
Statement of The Honorable Elton Gallegly, a Representative in Congress
from the State of California
Thank you Mr. Chairman for holding this hearing today on the
National Security Readiness Act of 2003. As you know, I introduced this
bill to amend the Endangered Species Act of 1973 and the Marine Mammal
Protection Act of 1972 to allow the military to train and test weapons
systems while still protecting the environment and endangered species.
Military bases across the United States, including the two in my
district, have stellar records on protecting the environment and
endangered species. Under my bill, that will remain part of their
mission.
But the National Security Readiness Act recognizes that the primary
mission of military bases is to prepare and protect the United States
from our enemies now and in the future. We endanger the American people
if we fail to allow our bases to train our military men and women and
test new weapons systems. I believe the provisions in this bill will
provide our bases the freedom they need to keep us secure.
Section 2 of the National Security Readiness Act amends the
Endangered Species Act to prohibit further designations of critical
habitat for endangered species in military areas ``'' as long as an
Integrated Natural Resources Management Plan has been prepared. It also
requires regulatory agencies to consider national security concerns in
addition to economic impact prior to designating areas of critical
habitat.
Critical habitats are designed to protect one species. Management
plans take an entire area's ecology into account to protect multiple
species, which, after all, do not live in a bubble. It's holistic
medicine for the environment.
The bill would not annul existing critical habitat designations,
but it would permit the Secretary of the Interior to revise existing
designations on military installations. No existing habitat could be
revised, however, if it would result in the extinction of an endangered
or threatened species. The Department of Defense (DOD) must still
adhere to the Endangered Species Act.
This language passed the House of Representatives as part of the
National Defense Authorization Act last year.
In addition, section 2 amends the Endangered Species Act to add
``insofar as is practicable and consistent with their primary
purposes'' to ensure that the primary mission of an agency has been
weighed when considering the designation of critical habitat. The bill
also strikes ``prudent and determinable'' and inserts ``necessary'' in
the ESA section that deals with designating critical habitat. This
language change is needed to get the most value for species
conservation by prioritizing the limited Federal resources devoted to
the endangered species listing program.
Section 3 of the National Security Act clarifies the definition of
``harassment'' of marine mammals in the Marine Mammal Protection Act to
improve agency enforcement. The Secretaries of Commerce and the
Interior have had difficulty prosecuting violators due to the
requirement that they must first determine if the violator pursued,
tormented or annoyed a marine mammal or marine mammal population. If
the Secretary can make that initial finding, then the Secretary can
make the second finding of whether the activity constitutes level A or
level B harassment. In many cases the Secretaries have been unable to
make the first finding and therefore have been unable to prosecute.
This change was first proposed under the Clinton Administration and
is endorsed by the National Research Council, which is within the
National Academy of Sciences.
Section 4 of the bill also exempts the DOD from the Marine Mammal
Protection Act for national defense reasons--after it consults with the
Secretary of Commerce and Interior. The exemption cannot be effective
for more than two years.
Finally, Section 5 of the National Security Act simplifies the
procedure for the DOD and other parties to apply for an incidental take
permit under the Marine Mammal Protection Act. The change would delete
the ``specific geographical area'' and ``small numbers'' requirements
and retain only the ``negligible impact'' finding.
Again, this removes micromanagement of small areas of the
environment and applies a holistic approach to the problem.
This change was first proposed by the National Research Council as
part of its 2000 report.
It is important to note that for the past 20 years, the Secretary,
through the implementing regulations, has determined that if the
negligible impact standard has been met then the small number standard
has also been met. But then the Navy's permit to use its Surveillance
Towed Array Sensor System (SURTASS) Low Frequency Active (LFA) came
under question in Court. The Court disagreed with the Secretary's
implementing regulations and required that the Secretary separately
define ``negligible impact'' and ``small numbers'' and make separate
findings on both the negligible impact standard and the small number
standard. This ruling drastically limited where the Navy could test the
SURTASS LFA system.
I believe this bill will help alleviate many impediments to our
militaries readiness.
But I also believe it's the beginning of the process. Mr. Chairman,
as you know, I had introduced the Encroachment on Military Bases
Prevention Act earlier this year, which included some of the provisions
in this current bill. Two provisions from that bill were removed from
the current bill that address important challenges facing the Point
Mugu Naval Air Station and Vandenberg Air Force Base in my district.
Specifically, my original bill would have amended the National
Marine Sanctuary Act to prevent the Secretary of Commerce from
designating a new national marine sanctuary, or expand the boundaries
of a national marine sanctuary, into waters used for military readiness
activities. This language would address NOAA's proposed quadrupling of
the Channel Islands National Marine Sanctuary into both Point Mugu's
and Vandenberg's missile test ranges.
Secondly, my original bill would have amended the National Park
System General Authorities Act to allow the Secretary of Defense to
object to active military lands being studied for suitability and
feasibility as a national park unit. Most of Vandenberg's lands were
studied as part of the National Park Service's Gaviota Coast
Feasability Study. As you can imagine, should Vandenberg have become a
national park, this would have a negative impact on the bases's
mission.
I look forward to working with the Chairman to ensure that the
language from my original bill is addressed. These problems are not
unique to my district. Encroachment is one of the major concerns
confronting our military installations across the United States.
Again, I thank the Chairman and yield.
______
STATEMENT OF HON. NICK J. RAHALL, II, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WEST VIRGINIA
Mr. Rahall. Thank you, Mr. Chairman.
First I commend you very highly for protecting the
jurisdiction of the Resources Committee. That allows today's
hearing to take place and a further airing of this important
issue.
I also want to note the absence of the dean of the House,
who was scheduled to give opening testimony today, Mr. John
Dingell. He is the ``father'' of the Endangered Species Act as
well as the Marine Mammal Protection Act, and I would ask that
the record be left open for submission of his testimony as, of
course, all members would have the right to submit.
Mr. Chairman, the issue at hand represents a classic
example of a solution in search of a problem. I say that
because the DOD has spared no expense in the aftermath of 9/11
to assert that our Nation's environmental laws are undermining
the training and readiness of our fighting forces. Yet,
according to reports released by the General Accounting Office,
the Pentagon has failed miserably to provide any compelling
examples to verify this allegation. Moreover, the major
environmental laws all contain a national security exemption
which the military has not even bothered to utilize to address
any real or perceived encroachment concerns.
These facts, however, have not gotten in the way of the DOD
from throwing up the ``boogie man'' of Osama and Saddam to
legislatively exempt itself from major environmental statutes
aimed at protecting all Americans and the natural resources we
cherish.
Today, the Committee is considering H.R. 1835, the National
Security Readiness Act of 2003. This bill includes provisions
that really should be labeled as WME, ``weapons of mass
extortion''. Make no mistake, it would gut provisions of the
Endangered Species Act and the Marine Mammal Protection Act,
going far beyond what even the military wants.
I say this because H.R. 1835 would provide exemptions to
the ESA for all Federal agencies, not just the Department of
Defense. It would make private property owners, States and
local communities bear the burden for the recovery of
threatened or endangered species. This is patently unfair.
In the case of MMPA, the bill would change the definition
of harassment for all activities, not just military readiness
activities. It says, ``rev up the motor boat, buddy, and let's
chase us some dolphins.'' In this regard, this bill does
nothing less than put ``Flipper'' in the cross-hairs.
The Defense Department does not need H.R. 1835, and it is
not seeking H.R. 1835. The bill overreaches. It is being used
as a vehicle for those who have other agendas that transcend
military readiness to gut the ESA and the MMPA through a back
door approach. If enacted, this bill would go back to the
future, turning the clock back almost 40 years.
In 1966, the Secretaries of the Interior, Defense and
Agriculture only had to preserve endangered species insofar as
consistent with their mission. Similarly, H.R. 1835 would have
Federal agencies seek to conserve species ``insofar as is
practical and consistent with their primary purposes.'' As
such, under the bill the Bonneville Power Administration could
ignore the effect that operating hydroelectric dams may have on
endangered salmon on the grounds that the agency's primary
mission is to market hydroelectric power.
Mr. Chairman, this policy did not work in the Sixties and
Seventies, and it will not work today. President Nixon
recognized this, and for me to be reduced to quoting Richard
Nixon, you know something is wrong. At the 1973 signing
ceremony for the Endangered Species Act, President Nixon said--
and I quote--``Nothing is more priceless and more worthy of
preservation than the rich array of animal life with which our
country has been blessed. It is a many-faceted treasure of
value to scholars, scientists and nature lovers alike, and it
forms a vital part of the heritage we all share as Americans.''
End of quote from President Nixon.
Mr. Chairman, in my view, this bill comes down to this:
without it, our military will continue to be prepared, as it
was in Iraq--and I salute them for that--and as it was in every
military exercise since the enactment of ESA and MMPA. With it,
we lose sight of some of what our military is being called to
protect right here at home.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Dingell follows:]
Statement of The Honorable John D. Dingell, a Representative in
Congress from the State of Michigan
Chairman Pombo, Ranking Member Rahall and all the distinguished
members of the Committee, thank you for the opportunity to come before
you today to express my opposition to this needless proposal. I
sincerely appreciate your willingness to hear my concerns.
As you know, there are five environmental laws the Department of
Defense would like exemptions from. Three of those laws, the Resource
Conservation and Recovery Act, the Comprehensive Environmental
Response, Compensation, and Liability Act--or Superfund, and the Clean
Air Act fall under the jurisdiction of the Energy and Commerce
Committee and I fully intend to continue fighting the Defense
Department on the exemptions they seek from my perch on that Committee.
However, as an author of the Endangered Species Act and the Marine
Mammal Protection Act, I feel that my knowledge of these laws might be
helpful to you as this Committee considers these sweeping exemptions
that could have a profoundly detrimental effect on our Nation's
conservation and environmental protection efforts.
While I am well aware that the bill before you today, H.R. 1835,
goes beyond the issues of the military, I would prefer to address the
real issue which is that the Department of Defense wants out from under
our most important and effective environmental laws.
During the 2000 campaign, President Bush himself said that he would
``direct active Federal facilities to comply with all environmental
protection laws and hold them accountable.'' More recently, Deputy
Secretary of Defense, Paul Wolfowitz stated in a March 7, 2003
memorandum that, ``In the vast majority of cases, we have demonstrated
that we are able to both comply with environment requirements and to
conduct military training and testing. In those exceptional cases where
we cannot and the law permits us to do so, we owe it to our young men
and women to request an appropriate exemption.''
Given the comments of President Bush and key Administration
officials, it begs the question, why are these sweeping exemptions
necessary?
Mr. Chairman, even you said in a recent interview, ``I am somewhat
hesitant to exempt certain parts of the Federal Government from these
laws.'' Moreover, in your book, This Land is Our Land, you say, ``If
the Federal Government were merely wasting our money when managing
public lands, that would be bad enough, but the evidence indicates that
it pollutes its land far worse than private landowners.''
Mr. Chairman, members of the Committee, we have won the war in
Iraq. After all the fuss the Department of Defense has made over the
years about how our environmental laws are infringing on training
activities, our military still managed to bring down Saddam Hussein's
regime in less than 2 months. I would have to say that this victory is
a pretty good indication that our military is being trained rather well
without these sweeping exemptions...and without endangering the habitat
of our national symbol, the bald eagle.
Endangered Species Act
Ladies and Gentlemen, the Endangered Species Act is near and dear
to my heart. I have accomplished much during my tenure in Congress, but
the Endangered Species Act, which I wrote with Senator Pete Williams,
is a law of which I am particularly proud.
In fact, there are a couple of exemption options open to the
Department of Defense under this law if they need it.
Section 7 of the law allows the taking of listed species if the
Fish and Wildlife Service or National Marine Fisheries Service
determines that the action will not jeopardize the continued existence
of a listed species. In a case like this, the agency may be required to
adopt reasonable and prudent alternatives to its original proposed
action and to comply with other terms and conditions required by the
Secretary of the Interior.
Additionally, and perhaps even more compelling, Section 7 (j)
requires that an exemption must be granted for an agency action if the
Secretary of Defense finds the exemption is necessary for reasons of
national security. This decision must go through a Committee process. I
would note, however, that the Department of Defense has never sought an
exemption under Section 7 (j) of the law.
Instead of seeking out the avenues already available to them, the
Defense Department wants broad, sweeping exemptions that would require
no work on their part. Indeed, they are willing to tell half-truths and
use fuzzy numbers to get what they want. Whenever one hears the Defense
Department talking about the constraints of the Endangered Species Act,
it inevitably mentions the Marine base, Camp Pendleton, in California.
The Defense Department will say that 57 percent of the land is off-
limits to military operations to preserve habitat: in fact the
Congressional Research Service indicates it is more like 3 percent.
The Defense Department, like all other Federal agencies, needs to
be held accountable for what it does, just like any other citizen or
any other Federal agency.
Marine Mammal Protection Act
This law, Ladies and Gentlemen, is about the taking of marine
mammals. It requires that we recognize the significance of marine
mammals and since its passage many marine mammal populations have been
stabilized. Some species have recovered to the extent that they are no
longer listed as threatened or endangered. This is a great
accomplishment.
The legislation before you today would allow the Secretary of
Defense to exempt any action, or category of actions, undertaken by the
Department of Defense or its components from compliance with any
requirement of the Marine Mammal Protection Act, if he finds it
necessary for national defense. Unlike the title of this bill implies,
this is not limited to just military training and readiness. These
exemptions would be authorized without any environmental review and
would be renewable at the Secretary's discretion. My friends, this is
too much.
Now, the Marine Mammal Protection Act is the only one of the 5
statutes the Defense Department does not want to comply with that lacks
a specific national security exemption. What it does have, however, is
an ``incidental take permit process.'' The Navy regularly applies for
these permits and has never been denied. Distinguished Members of the
Committee, if it ain't broke, don't fix it.
Conclusion
I think most of you here know that I am by no stretch of the
imagination an extremist. In fact, there are those in my own party who
would argue that I am not extreme enough. I also think most of you know
that if our national security truly was being jeopardized by compliance
with our environmental laws and regulations, I would look for ways to
help.
That, however, is not the case.
I have been around here a long time and the Defense Department is
constantly trying to get out from under the laws that every other
citizen and every other Federal agency is required to comply with,
simply because they do not want to be troubled. Well, there are many
things I would prefer not to be troubled by, including fighting this
battle, which is a waste of all our time. We have managed to run an
extremely successful military thus far without giving the Defense
Department an open season on our environmental laws.
Thank you for giving me the opportunity to express to you my
opposition to this outrageous proposal.
______
The Chairman. Thank you.
I want to welcome our first panel of witnesses here today.
If I could have you stand and raise your right hand. As is
customary on the Committee, we swear in all witnesses.
[Witnesses sworn.]
Let the record show they all answered in the affirmative.
I welcome you here today. Before we start, I am sure that
you're all familiar with the lights, the timing system. Your
entire written testimony will be included in the record. Your
oral testimony, we request that you keep that to 5 minutes. The
lights that are in front of you, when the yellow light comes
on, you have a minute left. At the red light, I would request
that you wrap up at that time.
Again, I welcome you all here today. I'm going to start
with Brigadier General Joseph F. Fil, Jr. We will start with
you as our first witness.
STATEMENT OF BRIGADIER GENERAL JOSEPH F. FIL, JR., U.S. ARMY,
COMMANDING GENERAL, NATIONAL TRAINING CENTER AND FORT IRWIN,
CALIFORNIA
General Fil. Well, Mr. Chairman, and members of the
Committee, thank you for providing me the opportunity to appear
before your Committee today.
My name is Joseph Fil, and I'm the Commanding General of
the National Training Center and Fort Irwin, California. My
testimony today describes the mission and training that takes
place at the NTC, as well as some of the constraints placed on
that training by requirements to manage threatened and
endangered species.
I will try to impress upon you the impact of those
constraints on our training, and will explain an alternative
approach to managing the natural resources at NTC in a manner
that balances the protection of the species with the vital
training mission we must continue to execute for the good of
this Nation.
The National Training Center has a rich military history,
dating back to the days of Captain John C. Freemont's defense
of Sante Fe, Mormon, Bitter Springs and Twenty Mule Team
Trails, to the training of today's modern forces currently
deployed in operations around the world.
Although the National Training Center was originally a
military hub to defend trade routes, it is currently the United
States Army's premier maneuver training area. It is tasked with
providing an environment in which brigade combat teams employ
all of their combat assets in a joint and combined arms
environment in force on force engagements and live fire
conditions for current and future maneuver forces. In fact, we
just completed our first rotation with a Stryker Brigade Combat
Team.
The remote location of the National Training Center
provides a unique and vital training environment. A primary
consideration in selecting the location of the NTC was the
ability to train with all weapons systems in a realistic
scenario, consistent with military training doctrine, from live
ordnance delivered by close air support to screening smoke
provided to mask combat maneuver from enemy fire, without
disturbing local populated areas.
I am no newcomer to Fort Irwin and the NTC. I have served
as a lieutenant colonel, a colonel, and now as its Commanding
General. I have helped train rotational units for combat as a
battalion senior trainer, brigade senior trainer, deputy
commander and chief of staff, and now as the NTC's Commanding
General. Additionally, as a rotational unit leader serving in
staff and command positions in the grade of captain through
colonel, I have witnessed first hand how the hard lessons
learned through tough, demanding and realistic training at the
NTC results in victory on the world's modern battlefields.
I have also seen the challenges facing Fort Irwin. If the
NTC is to remain the crown jewel of Army training, and to
provide a realistic and relevant battlefield to train the
brigade combat teams of the future, we do need additional
battle space. The NTC's quest to expand its usable training
area began in the mid-1980's. The Army's leadership realized
that the NTC would be challenged in providing a realistic
training environment to the brigade combat teams of the future
as technology and tactics increase the amount of terrain a
brigade is held responsible for in combat.
Even though we have sought to increase our usable training
area, it has, in fact, been decreased by 24,000 acres due to
the designation as critical habitat for the Desert Tortoise,
effectively closing one of our two maneuver corridors.
In January of 2001, Congress withdrew 110,000 acres to add
to the National Training Center's training area, which we are
currently addressing in an environmental impact statement and
in consultation with the Fish and Wildlife Service.
I am here today to tell you that not only do we need this
training land, we need to be able to manage it in a flexible,
holistic manner that balances the environmental protection and
military training. We think the best method for managing
threatened and endangered species is the Integrated Natural
Resource Management Plan, or INRMP. We believe INRMPs provide a
more holistic approach to species management.
INRMPs take into account all species present on the
installation, not just one particular threatened or endangered
species, and they take into account multiple uses of the land--
hunting, residential, and military training. INRMPs simply
provide an overall, broader, and more over-arching review of
the total natural resource package on a military installation.
In this day and age of diminishing resources, when we are
constantly challenged to do more with less, we believe that
INRMPs are our best chance of meeting that challenge when it
comes to managing our natural resources.
What we are trying to do with this RRPI proposal is to
preserve our ability to strike the proper balance between
training and environmental protection with our local fish and
wildlife service, and with local stakeholders through the INRMP
process. We fully recognize and will continue to honor our
obligation to preserve the environment and protect threatened
and endangered species and to follow the Endangered Species
Act.
We are great stewards of the environment at Fort Irwin. We
have lots of good people working on it, and we devote
substantial resources to it, and we will continue to do so.
Unfortunately, the Fish and Wildlife Service's INRMP policy
process is being currently challenged in court. What we need is
Congress to clarify its intent in this regard, rather than
leave it up to Federal judges and private lawsuits.
Mr. Chairman, it is, indeed, a great honor to be here. I
look forward to answering any questions that you may have.
[The prepared statement of General Fil follows:]
Statement of Brigadier General Joseph F. Fil, Jr., Commanding General,
National Training Center and Fort Irwin, California
Mr. Chairman and members of the Committee: Thank you for providing
me the opportunity to appear before your Committee today. My name is
Joseph F. Fil, Jr. and I am the Commanding General of the National
Training Center (NTC) and Fort Irwin, California. My testimony
describes the mission and training that takes place at the NTC as well
as some of the constraints placed on that training by requirements to
manage threatened and endangered species. I will try to impress upon
you the impact of those constraints on our training and will explain an
alternative approach to managing the natural resources at NTC in a
manner that balances the protection of species with the vital training
mission we must continue to execute for the good of this nation. I will
also explain the potential benefits to the NTC from two of the
provisions that are part of the DoD Readiness and Range Preservation
Initiative.
Mission and Capabilities of the National Training Center
Our mission at the NTC is to provide tough, realistic combined arms
and joint training. The training is focused at the battalion task force
and brigade level, to assist commanders in training the soldiers,
leaders, and units of America's Army for combat success on the modern
battlefield. We are tasked to provide feedback to improve Army
doctrine, training methods, and to care for our soldiers, civilians,
and family members living and working at Fort Irwin. We are also tasked
with keeping pace with, and often leading, the Army's transformation
training.
Currently, ten brigade-sized units, averaging four to six thousand
soldiers each, deploy annually to the NTC for intensive combat training
against a dedicated opposing force, or OPFOR. Each 28-day brigade
training rotation is designed to replicate a contingency deployment to
an overseas combat area. The NTC trains Army heavy and light forces in
a joint and combined arms environment at the mid to high intensity
level of combat operations. The NTC provides a capstone-training event
for U.S. Army brigades and battalions that is realistic, rigorous, and
demanding. We accomplish this through a combination of force-on-force
and live fire training, while providing detailed observations and
feedback. The NTC must provide the realistic and demanding environment
for leaders and soldiers to ensure the hard lessons, historically
learned in America's first battles at the expense of soldiers' lives,
are gained in live training instead of in combat.
At the NTC, we employ four key elements, not available at unit home
station training facilities, to train brigades. We have a full-time,
dedicated Opposing Force (OPFOR) Regiment; professional full-time
trainers to observe and provide feedback to the training units; a
sophisticated instrumentation system to track the battles; and a
realistic battlefield that replicates the stress and conditions of
actual combat. We are constantly examining our training, equipment, and
training area, to ensure they support potential future joint and
combined combat environments and they provide the realistic geographic
battlespace to train Brigade Combat Teams.
Requirements to Accomplish the Mission of NTC
Fort Irwin encompasses over 642,000 acres. It is the Army's largest
instrumented maneuver installation, and is the only one capable of
training heavy and light units on the ground at distances approximating
realistic operating distances. The Army and Joint Service participants
depend on Fort Irwin and its large expanse of maneuver training area to
provide the realistic battlefield conditions our service men and women
will face in combat. Operating over these distances challenges Brigade
Combat Teams not only in force on force maneuver events, but also in
Brigade Combat Team maneuver live-fires that fully integrate internal,
attached, and joint assets. The NTC is the only Army Installation in
CONUS offering force on force and live-fire training opportunities to
Brigade Combat Teams and the only center in the world that can
accomplish this combat essential training in a fully instrumented
environment. For many leaders and soldiers, a National Training Center
rotation is the first time their units are able to train at doctrinal
distances. Digital and voice communications requirements, lines of
communication and support relationships, situational awareness, and
combat force maneuver prove difficult for forces that have never
operated over such distances. In this regard, the mere physical size of
the National Training Center Maneuver Area provides a more realistic
battlefield that allows the Brigade Combat Team to face these
challenges and learn from them in a training environment rather than
war.
The National Training Center's 642,000 acres includes 350,000 acres
of maneuver area. While this maneuver area met the doctrinal distances
for units of the 1980s, current future Brigade Combat Teams operate at
much more extended distances as recently demonstrated by the 3d
Infantry Division during operation Iraqi Freedom. Expanded maneuver
areas need to adequately stress battle field operating systems. The
Army's Interim and Objective Forces will need even larger maneuver
areas to train for combat. Although the NTC was capable of providing
adequate training area for the Army Brigade Combat Teams that fought
Desert Storm in 1991, the current NTC training area does not support
the land requirements to fully train current and future Army Brigade
Combat Team configurations.
As early as 1985, the Army recognized that changing tactics,
organizations, and more capable equipment have created a demand for a
larger training area to realistically conduct force-on-force training
for brigade-sized units. Recognizing this requirement, the Army began
the process of expanding the NTC. Due in large part to the complex
requirements to protect the Desert Tortoise (a threatened species) and
the Lane Mountain Milk Vetch (a recently listed endangered species),
the effort to acquire additional land and meet this doctrinal training
requirement remained incomplete for nearly 18 years. Thanks to recent
congressional legislation, approximately 110,000 acres of additional
training land has been withdrawn from the Bureau of Land Management for
the NTC. With these additional 110,000 acres, the NTC will actually
offer 520,000 acres (opening numerous corridors which are currently
closed) of actual maneuver training area, which we believe is essential
to our ability to provide a realistic training environment for the
Interim and Objective Forces. We are currently evaluating the expansion
under the National Environmental Policy Act and consulting with the
U.S. Fish and Wildlife Service under the Endangered Species Act, with
the objective of commencing training in the expansion area by fiscal
year 06.
Impact of Endangered Species Act Compliance on the Mission of NTC
The Army recognizes its obligation to protect threatened and
endangered species. We have in the past and will continue to be leaders
in this respect. Although NTC is and will remain committed to
environmental stewardship, pressure points exist that limit the
effectiveness of training. One of the most challenging of these
pressure points is the management of threatened and endangered species.
The threatened Desert Tortoise inhabits Fort Irwin. We take
extraordinary measures to ensure we avoid them during our training
operations. All soldiers training in the maneuver area are briefed on
actions to take when a Desert Tortoise is sighted and we never exceeded
our estimated limits of takes contained in the Biological Opinion per
year over the past 10 years. Upon encountering a Desert Tortoise,
training in the immediate area ceases, and soldiers are instructed to
notify a National Training Center Observer Controller who then notifies
the National Training Center Environmental Team. If a biologist is
required to relocate or retrieve a tortoise after normal working hours
or on weekends, they are required to drive 36 miles (from their
residence) or further to accomplish this mission, resulting in soldiers
remaining to observe the tortoise for hours.
In most cases, reporting the location and confirming the tortoise
is out of immediate and future harms way is the only action taken.
Physical handling of a Desert Tortoise is only done in cases of
imminent danger. One of the Desert Tortoise defense mechanisms is
urination, in which it empties it's bladder to ward off attackers. If a
Desert Tortoise urinates, soldiers are trained to provide shade and
contact National Training Center Environmental personnel. This is
important as a tortoise that voided it's bladder has much less chance
of surviving it's hibernation period. The Fort Irwin newspaper
frequently publishes articles on environmental awareness, especially on
Desert Tortoise and other wildlife, to educate soldiers, family
members, and post employees who live in post housing and work in
administrative areas.
In 1993, the National Training Center established a Desert Tortoise
reserve in the southern portion of the training maneuver area to
minimize training impacts on the species. This reserve was seen by the
National Training Center Leadership as a environmentally responsible
measure until mitigation requirements were identified and implemented.
The reserve area was fenced using National Training Center funds to
prevent vehicular traffic from entering the area in 1994. It was never
the National Training Center's intent to permanently restrict this area
from use for Brigade Combat Training Team maneuver, rather it was
intended to provide U.S. Fish and Wildlife Service an area to determine
possible future mitigation. As a result, U.S. Fish and Wildlife (USFWS)
designated the reserve as Desert Tortoise critical habitat.
This loss of approximately 22,000 acres effectively moved our
southern boundary north by three kilometers, effectively closing the
southern brigade maneuver corridor; one of only two at the NTC. Because
the southern brigade maneuver corridor is unavailable, our training is
restricted to the central brigade maneuver corridor. The repeated use
of this corridor concentrates and intensifies maneuver impact damage
and repeatedly exposes rotational units to the same terrain during
training. This is not conducive to sustainable land use and land
management practices or to training realism. Repeated use of the same
training area reduces the realistic evaluation and use of terrain by
units and encourages habitual use of the same maneuver courses and
fighting positions during training. It causes unrealistic familiarity
with likely courses of action, enemy positions, and ambush points. It
concentrates training impacts, driving up maintenance costs and
creating additional environmental issues such as erosion. In general,
it reduces total maneuver land available, which causes a reduction in
the capability of the installation to support doctrinal training
requirements.
The Lane Mountain Milk-Vetch is an endangered plant species present
in the southwest corner of Fort Irwin and within lands withdrawn as
part of the Fort Irwin Expansion legislation. The Milk-Vetch is a small
perennial herb with a very short growing season of approximately 2 to 4
months. It generally grows within other plants that it appears to use
as a support structure. The original listing by U.S. Fish and Wildlife
Service indicated an estimated population of 1,200 plants, in three
habitat areas of which two were on the NTC reservation and the third on
land managed by BLM. The U.S. Fish and Wildlife Service indicated that
the plant was justified for listing indicating that military training
activity due to the Fort Irwin Expansion was a primary threat to the
continued existence of the species. Recent surveys and research funded
by the National Training Center, at a cost of over $1,300,000 in the
past three years, indicate a far different picture than was presented
in the listing package for the plant. Due to the Army survey, the known
habitat was expanded from 13 square miles to over 32 square miles, a
new population was discovered, and an area thought previously to
contain only a few hundred plants in a few acres was discovered to be
the largest population with the largest habitat area of nearly 10,000
acres. This area is totally outside military boundaries located
primarily on lands administered by the Bureau of Land Management. Due
to the Army survey, the U.S. Fish and Wildlife Service population
estimate of 1,200 plants has been increased to an estimate of 30,000--
70,000 plants and we are discovering additional habitat and plants as
we speak.
U.S. Fish and Wildlife Service, based on a court order, is required
to designate critical habitat for the Lane Mountain Milk-Vetch by
September 2004. Based on a population of the Lane Mountain Milk-Vetch
on Fort Irwin (about 25% of the known habitat is on the Fort) the
potential designation of critical habitat may remove from training
enough land in the western expansion area to make this area totally
unusable for Brigade Combat Team training by the NTC.
NTC Commitment to Environmental Stewardship
As I have articulated, the protection of threatened and endangered
species is not without cost, both monetary and to our military
capabilities. We perform a constant balancing act to satisfy all of the
competing demands placed on the natural resources that comprise Fort
Irwin. We do not shrink from this challenge; rather, we have and will
continue to engage it head-on.
The NTC has a solid record in the area of environmental protection.
The Army awarded its Pollution Prevention Installation Award for Fiscal
Year 2002, Environmental Quality Award for Fiscal Year 2001, and
Cultural Resources Team Award for Fiscal Year 1999 to the NTC. In 1996,
Vice President Al Gore awarded the Vice President ``s ``Hammer Award''
to the NTC for initiating Mojave Desert Ecosystem Program. In 2003, the
EPA Region ``IX recognized NTC as the Champion of Green Government for
our Pollution Prevention efforts. In addition, we have a strong record
in air quality management as evidenced by award of the Mojave Desert
Air Quality Management District Award for 1999, 2000, 2001 and 2002.
Annually, the NTC spends $1.2M for Installation Training Area
Management and over $13M in environmental programs. The NTC employs a
34 person Environmental Staff (Civil Servants and Contractors) of which
five are full time wildlife biologists, six archeologists, and a
botanist who work as a team to conserve natural and cultural resources
and to advance the training center's environmental stewardship program.
All of Fort Irwin's programs to manage and conserve natural resources
are integrated into the installation's Integrated Natural Resource
Management Plan (INRMP). The INRMP will serve as the primary tool to
coordinate all of the competing conservation requirements and ensure
they are met in a manner that supports species protection and the
sustainable use of Fort Irwin's training lands to support our mission.
Benefits of the Readiness and Range Preservation Initiative
With this background on the NTC's military mission and the
environmental requirements that adversely impact our capability at the
NTC, I want to address two RRPI provisions that would greatly assist us
in balancing these competing requirements in the future: the provisions
addressing Endangered Species Act critical habitat and Clean Air Act
conformity requirements. While the RRPI will certainly not eliminate
all of the problems that are impacting our ability to conduct the
realistic training that is vital to combat effectiveness, it is an
important step towards achieving a more effective balance between our
mission and conservation objectives.
Endangered Species Act Critical Habitat
As you know, the Endangered Species Act provides for the
designation of critical habitat that is essential to the conservation
of a threatened or endangered species. Critical habitat designated
based on the limited scientific information available to the Fish and
Wildlife Service, is subject to special protections that primarily
affect and limit Federal activities, as opposed to the activities of
state and local governments and private citizens. As I will discuss,
the NTC has first hand experience as to the adverse consequences of
designating critical habitat on a military installation. We believe
that the RRPI provision affords a much more effective means of
achieving the conservation objectives of the Endangered Species Act,
while at the same time affording us the flexibility to perform our
military mission. As I explained earlier, 24,000 acres of NTC was later
designated as Critical Habitat for the Desert Tortoise and, as a
result, we lost the ability to use any portion of this land for our
training.
Compounding our problems, we now must implement conservation
measures for the Lane Mountain Milk Vetch. This plant was recently
discovered on approximately 11,500 acres on Fort Irwin in the Southwest
Expansion Area, which is vital to meeting our training requirements in
the 21st Century. While we support efforts to ensure the survival of
this species, we are greatly concerned over further degradation of our
ability to effectively train soldiers at the NTC. Designation of
Critical Habitat for the Milk Vetch is required but the exact area is
unknown. The potential designation of large areas of the NTC as
Critical Habitat for the Milk Vetch poses a major future threat to our
mission and makes the passage of the RRPI Endangered Species Act
provision of vital importance to us.
The RRPI Endangered Species Act provision will ensure the
availability of what we believe to be a valuable and necessary tool in
achieving an effective balance between conservation and military
mission. The RRPI provision codifies the highly beneficial U.S. Fish
and Wildlife Service administrative practice of allowing an approved
INRMP to substitute for designating Critical Habitat on a military
installation. This important tool is now in jeopardy as a result of a
recent Federal court decision.
RRPI would ensure that the NTC could use its INRMP to provide
focused, carefully crafted management protections for the Milk Vetch,
while at the same time avoiding unnecessary impacts on military
mission. From a conservation perspective, critical habitat offers
nothing that an approved INRMP cannot provide. We believe this approach
positively contrasts to the inflexible approach, normally associated
with the designation of critical habitat, that can impede realistic
training.
Additionally, having an INRMP in lieu of designated critical
habitat will have a major benefit in reducing the number of
consultations we will have to initiate with the U.S. Fish and Wildlife
Service under Section 7 of the Endangered Species Act. Considering the
limited resources and personnel available at the NTC and the U.S. Fish
and Wildlife Service for consultation and conservation activities, this
savings, in terms of time, cost, and administrative burden, will be
significant. The less time the NTC's Natural Resource Professionals are
required to spend on administrative consultations, the more time they
can devote to conservation activities that directly benefit the
species.
While impediments to realistic training will remain, allowing us
the flexibility to use our INRMP in lieu of critical habitat will
greatly assist us in balancing our competing requirements. Moreover, we
are optimistic that working closely with the U.S. Fish and Wildlife
Service, our INRMP can and will afford the effective management that is
needed to ensure the survival of the Milk Vetch. Of the $125 million in
funding currently projected for our land expansion effort, up to $75
million has been authorized and is awaiting approval for the mitigation
of endangered and threatened species. We currently expend approximately
$3 million annually for the conservation of these species.
I think our success with the Desert Tortoise clearly demonstrates
the effectiveness of the conservation measures that we undertake and
will continue under our INRMP. We have a comprehensive program to
educate soldiers and others on the installation on endangered species
and the protections they must be afforded. We have pioneered the
operation of the nation's only Desert Tortoise Headstart Program, which
has released over 200 hatchling tortoises to the wild. Moreover, with
all of the training activities at the NTC, we have never been cited for
exceeding the estimates of take limits contained in the Biological
Opinion in the past ten years--clear evidence of the effectiveness of
the comprehensive measures we have implemented under our INRMP.
Clean Air Act Conformity
While we take all reasonable and practical mitigation measures,
training in the desert inherently generates dust. As the Army
transforms, the number of vehicles training at the NTC will increase,
as will the resulting dust. For years, we have strived to meet the
compliance requirements associated with the PM 10 National Ambient Air
Quality Standard (NAAQS). This has been particularly difficult
considering the background concentration of particulate matter in the
air, emanating from the Los Angeles basin. While this has been a major
challenge, we have successfully coped. The NTC spends about $400,000
annually as part of a cooperative effort with the Mojave Desert Air
Quality Management District to monitor for particulate matter.
Additionally, we spend about $1 million each year through our
Installation Training Area Management program in efforts to mitigate
dust and erosion.
With the emerging requirements associated with the new PM 2.5
NAAQS, we are greatly concerned over the future impact on our training
operations. As a result of background levels from pollution from the
Los Angeles basin, without any training activities at the NTC, the
ambient air quality at the NTC exceeds this new standard. Consequently,
the RRPI Clean Air Conformity provision, which would give the Army up
to three years to demonstrate compliance with a state's implementation
plan for air quality, is important to the NTC's future.
Conclusion
I am extremely proud of the great American soldiers and leaders who
train so hard in the tough training environment we have established in
the desert of NTC. Our Army recognizes that the National Training
Center is a critical and irreplaceable component of the readiness of
our Army. We train and coach units to the Army's doctrinal standards,
and we adjust training conditions based on unit skills, knowledge and
abilities. All the units that train at NTC depart immeasurably better
for their hard work, and that of the soldiers and civilians who support
their training. I am very proud of everyone at our training center, as
we train soldiers and develop leaders in order to ensure no soldier
goes into harm's way untrained.
I appreciate the strong support from Congress and particularly from
this Committee. Mr. Chairman, thank you for the opportunity to speak
today and I stand ready to answer the Committee's questions.
______
The Chairman. Thank you.
Our next witness is Rear Admiral Robert T. Moeller.
STATEMENT OF REAR ADMIRAL ROBERT T. MOELLER, U.S. NAVY, DEPUTY
CHIEF OF STAFF FOR OPERATIONS/PLANS AND POLICY, U.S. PACIFIC
FLEET
Admiral Moeller. Mr. Chairman, distinguished members of the
Committee, it is truly an honor to be here today. I am Rear
Admiral Bob Moeller. I am the Deputy Chief of Staff for
Operations/Plans and Policy for the Commander, U.S. Pacific
Fleet.
I am a surface warfare officer and have actual forward
deployed experience in the Atlantic, Mediterranean, Western
Pacific and Persian Gulf, including command of an Aegis-class
Tomahawk equipped cruiser. I know the importance realistic
training plays in preparing to execute our assigned mission.
The primary mission of Commander, U.S. Pacific Fleet, is to
provide combat-ready naval forces. The Pacific Fleet is
comprised of approximately 200 ships, 1,500 aircraft, and
250,000 sailors, Marines and civilians.
Our ability to provide the training they need to be the
best is the matter we're addressing today. How do we ensure
their readiness? The reality is that we are facing an
increasingly difficult task to provide this training because of
the constant pressure associated with what we characterize as
encroachment. Under the Marine Mammal Protection Act, the
current definition of harassment of marine mammals can be
interpreted as mere annoyance or potential to disturb, without
biologically significant effects. As a result, any Navy test or
training activity that results in such harassment must be
permitted to do so. Such broad language in definitions, if
taken to the extreme, could be interpreted to prevent any
maritime activity in the vicinity of marine mammals.
Two examples illustrate the specific encroachment challenge
we face in the area of anti-submarine warfare, a mission unique
to the Navy and the No. 1 warfare priority for PacFleet.
For years, the Navy has been concerned about the MMPA. In
November, 2002, a Federal District judge issued a court order
that strictly limits employment of SURTASS LFA. This advanced
system is designed to detect and track the growing number of
state-of-the-art, quiet diesel submarines possessed by nations
that could threaten our national security. The Navy now finds
the deployment and operation of one of our most important
national security assets constrained by a Federal court,
notwithstanding a 6-year effort on our behalf to comply fully
with the MMPA.
The current reality is that we cannot test and train with
SURTASS LFA in those areas of the Pacific where we would most
likely need to use the system during hostilities and future
testing and employment of SURTASS LFAs in jeopardy. Simply
keeping the system on the shelf until we may actually need to
use it is not a realistic option.
The Navy is also developing, as part of its littoral
warfare advanced development, or LWAD program, other new
sensors and tactics to track these quiet diesel submarines as
they operate in littoral waters, like the Persian Gulf and
Taiwan Strait. These submarines are proliferating worldwide,
including Iran, China and North Korea. They are significantly
harder to detect than the submarines that challenged the U.S.
Navy during the cold war. Without these new, vital sensors, we
would be unable to secure sea lines of communication and trade.
In the past 6 years, this program to develop and test
systems and tactics has encountered challenges by environmental
groups 78 percent of the time. In the last 3 years, nine of ten
operational tests have been affected. One test was canceled and
17 related projects have been scaled back.
The Readiness and Range Preservation Initiative follows the
National Research Council's recommendation that the current
ambiguous definition of harassment of marine mammals under the
MMPA be reworded to define more biologically significant
effects. I ask that you keep in mind that this proposal does
not create a blanket exemption for the Navy. We will still seek
permits in those instances where our actions will have
biologically significant impacts.
This language is the result of the interagency process.
Therefore, Commerce and Interior support this proposal.
Furthermore, this language is similar, I am told, to language
proposed by the previous administration.
The U.S. Navy is very proud of its ability to respond to
the President's call to be ready in the current global war on
terror. As the President remarked just the other evening from
the deck of the U.S.S. ABRAHAM LINCOLN, the war is not over.
Indeed, law and the expectation of the American people require
that their military services are ready.
A fundamental tenet of fleet readiness is to train as we
fight. However, experience paid in lives has demonstrated that
we fight as we train. There is a real need to better clarify
and eliminate ambiguity in environmental laws without exempting
the Department of Defense from compliance. As such, there
remains an ongoing need for the Department of Defense to
continue its dialog in partnership with regulatory agencies, in
order to properly balance national defense requirements with
conservation initiatives.
Finally, we appreciate the continued effort by the Congress
to recognize our responsibility to realistically train
America's sons and daughters for combat and to support the
requirement for viable, unfettered range facilities to
accomplish that mandate.
I welcome your questions. Thank you very much.
[The prepared statement of Admiral Moeller follows:]
Statement of Rear Admiral Robert T. Moeller, Deputy Chief of Staff for
Operations/Plans and Policy, U.S.. Pacific Fleet, U.S. Navy
INTRODUCTION
Chairman Pombo, Representative Rahall, and Members of the
Committee, thank you for this opportunity to share my views regarding
the growing negative effects of encroachment on military readiness and
training of our American Sailors as they prepare for combat. I
appreciate your attention to this vital and timely topic, which is of
great importance to national security and the environment.
THE U.S. PACIFIC FLEET
The mission of Commander, U.S. Pacific Fleet, is to support the
U.S. Pacific Command's (PACOM) theater strategy, and to provide
interoperable, trained and combat-ready naval forces to PACOM and other
U.S. unified commanders. The U.S. Pacific Fleet area of responsibility
(AOR) covers more than 50% of the earth's surface, encompassing just
over 100 million square miles. Each day, Pacific Fleet ships are at sea
in the Arabian Gulf, and the Pacific, Indian, and Arctic Oceans. Our
AOR extends from the west coast of the U.S. to India. The Pacific Fleet
is made up of approximately 200 ships, 1,500 aircraft and 250,000
Sailors, Marines and Civilians. Together they keep the sea-lanes open,
deter aggression, provide regional stability, and support humanitarian
relief activities. As the Deputy Chief of Staff for Operations/Plans
and Policy, I develop initial naval combat plans and follow through
until specific operations are completed.
The high quality of training we provide to these Sailors is perhaps
unseen, yet it is an essential element of their impressive level of
combat readiness. Clearly, before this nation sends its most precious
asset--its young men and women--into harms way, we must be
uncompromising in our obligation to prepare them to fight, survive, and
win. This demands the most realistic and comprehensive training we can
provide.
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 our combat effectiveness. The ratio of enemy aircraft shot
down by U.S. aircraft in Vietnam improved to 13-to-1 from less than 1-
to-1 after the Navy established its Fighter Weapons School, popularly
known as TOPGUN. More recent data shows aircrews that 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.
As combat operations for Operation Iraqi Freedom concludes, we must
prepare for other possible conflict in the future. We should be
concerned about the growing challenges in our ability to ensure our
forces receive the necessary training with the weapon and sensor
systems they will employ in combat. 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, 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 facilities and urban sprawl.
They are constrained by state and Federal environmental laws and
regulations and cumbersome permitting processes which negatively impact
our ability to train.
NAVY'S ENVIRONMENTAL STEWARDSHIP
The Navy continues its commitment to good stewardship of the
environment. Indeed, our culture reflects this, as the men and women
manning our fleet were raised in a generation with a keen awareness of
environmental issues. The Navy environmental budget request for FY-2004
totals $1.0 billion. This funding supports environmental compliance and
conservation, pollution prevention, environmental research, the
development of new technologies, and environmental cleanup at Active
and Reserve bases. It is precisely as a result of this stewardship that
military lands present favorable habitats for plants and wildlife,
including many protected species. Ironically, our successful
stewardship programs have helped increase the number of protected
species on our ranges, which has resulted in less training capacity in
some instances.
BALANCING MILITARY READINESS AND THE ENVIRONMENT
Sustaining military readiness today has become increasingly
difficult because, over time, a number of factors, including urban
sprawl, regulations, litigation, and our own accommodations to demands
from courts, regulatory agencies and special interest groups have
cumulatively diminished the Navy's ability to effectively train and
test systems. Among the greatest threats to proper military training
are some laws that include ambiguous provisions and cumbersome process
requirements that result in unintended negative consequences, which
inhibit realistic, timely and comprehensive training. These laws, and
the court decisions which have interpreted and expanded them, have
resulted in Federal courts and regulatory agencies curtailing essential
training despite the ``best available science'' supportive of the
Navy's ability to train without harm to the environment. As a result,
military readiness requirements and environmental protection are out of
balance.
The Administration's Readiness and Range Preservation Initiative
(RRPI) proposes modest amendments to several environmental laws which
will help restore the balance, meeting our national security needs and
maintaining good stewardship of the environment. I ask for your help to
address the challenges of most concern to the Navy under the Marine
Mammal Protection Act (MMPA) and the Endangered Species Act (ESA).
MARINE MAMMAL PROTECTION ACT
Last year before the Senate Environment and Public Works Committee,
the Vice Chief of Naval Operations testified that the definition of the
term ``harassment'' of marine mammals in the MMPA was a source of
confusion because the definition is tied to vague and ambiguous terms
such as ``annoyance'' and ``potential to disturb.'' These terms
arguably apply to even the slightest changes in marine mammal behavior
and subject Navy training and testing at sea to the scrutiny and
control of courts, regulatory agencies and special interests groups,
even in the absence of evidence of adverse impacts on the marine
mammals. The severity of the impact on Navy training and testing is
strikingly more apparent now.
In November 2002, a Federal district judge in San Francisco
presiding over a case brought by environmental groups alleging
violation of the MMPA, National Environmental Policy Act (NEPA), and
the Endangered Species Act issued a preliminary injunction that limits
employment of the Surveillance Towed Array Sensor System Low Frequency
Active (SURTASS LFA) sonar system. This advanced system is designed to
detect and track the growing number of quiet diesel submarines
possessed by nations, which could threaten our vital national security.
After highlighting flaws in regulatory agency implementation of the
MMPA and ESA, the court issued a preliminary injunction restricting
Navy's deployment of SURTASS LFA to a limited area in the western
Pacific. Navy now finds the deployment and operation of one of our most
important national security assets constrained by a Federal court as a
result of litigation brought by environmental groups specifically
designed to deny Navy use of the system. Future testing and employment
of SURTASS LFA could be adversely affected. The MMPA was originally
enacted to protect whales from commercial exploitation and to prevent
dolphins and other marine mammals from accidental death or injury
during commercial fishing operations. Military readiness concerns were
not raised at the time of its enactment.
As a result of the preliminary injunction issued by the Federal
district court, we are not allowed to test and train with LFA in the
waters in which it will need to be employed. SURTASS LFA is a critical
part of anti-submarine warfare (ASW). The Chief of Naval Operations has
stated that ASW is an essential and core capability of the Navy.
Testing and training with LFA is essential to our future success. By
way of comparison, during the Cold War we made every effort to search,
detect, and track Soviet nuclear submarines. In so doing, we learned
their habits, went to school on their operational procedures, and
worked hard to stay ahead of them. Today the nature of the submarine
threat has changed. The challenge is different. Nevertheless, the
preliminary injunction on testing and training with LFA issued by the
Federal district court has severely limited our ability to do prepare
for this challenge.
The Current Quiet Diesel Submarine Threat
As we enter the 21st century, the global submarine threat is
becoming increasingly more diverse, regional, and challenging. The
Russian Federation and the People's Republic of China have demonstrated
that the submarine is a centerpiece of their respective navies.
Published naval strategies and current operations of potential
adversaries, including Iran and North Korea, have demonstrated the same
strategic doctrine. Diesel submarines are deemed a cost-effective
platform for the delivery of several types of weapons, including
torpedoes, anti-ship cruise missiles, anti-ship mines and nuclear
weapons. In addition to the United States, Australia, Canada, and the
United Kingdom, 41 other countries, including potential adversary
nations such as China, North Korea, and Iran, have modern quiet
submarines and many are investing heavily in submarine technology. Of
the 380 submarines owned by these 41 countries, more than 300 are quiet
diesel submarines.
Submarine quieting technology continues to proliferate, making
submarines, operating in their quietest mode, difficult to detect even
with the most capable passive sonar. The inability to detect a hostile
submarine at long-range--in other words, at a sufficient ``stand-off''
distance before it can launch a missile or a torpedo--is a critical
vulnerability that puts ships and our Sailors at risk. The threat of a
quiet diesel submarine, in certain circumstances, could deny access to
vital operational areas to U.S. or coalition naval forces. These
threats to our Navy are a reality that the U.S. Pacific Fleet must
consider as it carries out its responsibility to be able to conduct
theater warfare in the Pacific Region.
Because of these threats, Navy identified the requirement to detect
hostile submarines before they are close enough to use weapons. This
capability is particularly critical where there exists a concentration
of forces at sea, as recently occurred in the Sea of Japan for exercise
Foal Eagle, or as is planned in support of Operational and Contingency
Plans in the vicinity of Northeast Asia. When it becomes necessary to
place carrier battle groups or amphibious task forces in harms way,
these valuable national assets, their supporting ships and their crews
have to transit constricted bodies of water or straits. These limited
areas provide the perfect opportunity for quiet diesel submarines to
stalk our ships. A pre-positioned diesel submarine, conducting a quiet
patrol on battery power, is extremely difficult to detect with passive
sonar. The most promising system to counter this threat to our Navy and
national security is SURTASS LFA. To be effective, SURTASS LFA must be
tested and evaluated for integration into the Fleet. It is not
effective to be kept ``on the shelf'' in the event our forces need to
use it in a real contingency.
Comprehensive Environmental Analysis
In meeting its obligations under current environmental laws for
deploying SURTASS LFA, the Navy undertook a comprehensive and
exhaustive environmental planning and associated scientific research
effort. Working cooperatively with the National Marine Fisheries
Service (NMFS)--the Federal regulatory agency tasked with protection
and preservation of marine mammals--the Navy completed an Environmental
Impact Statement (EIS), developed mitigation measures for protecting
the environment, and obtained all required authorizations or permits
pursuant to the MMPA and ESA. The scientific research and EIS involved
extensive participation by independent scientists from a large number
of laboratories and academic organizations. The Navy also undertook a
wide-ranging effort to involve the public in the EIS process through
public meetings and extensive outreach. Based on this effort, NMFS
concluded that the planned SURTASS LFA operations would have negligible
impacts on marine mammals.
Despite plaintiffs' failure to produce scientific evidence
contradicting the independent scientific research that the LFA system
could be operated with negligible harm to marine mammals, the court
opined that Navy testing and training must be restricted. In reaching
this conclusion, the court noted that under the definition of
harassment, the phrase ``potential to disturb'' hinged on the word
``potential'' and extended to individual animals. Quoting from judge's
opinion, ``In fact, by focusing on potential harassment, the statute
appears to consider all the animals in a population to be harassed if
there is the potential for the act to disturb the behavior patterns of
the most sensitive individual in the group.'' (Emphasis added.)
Interpreting the law this broadly could require authorization (permits)
for harassment of potentially hundreds, if not thousands, of marine
mammals based on the benign behavioral responses of one or two of the
most sensitive animals.
Highlighting how difficult it would be to apply the MMPA to world-
wide military readiness activities under such a broad interpretation of
harassment, the court pointed out that a separate structural flaw in
the MMPA limits permits for harassment to no more than a ``small
number'' of marine mammals. Overturning the regulatory agency's
decades-old interpretation of the MMPA, the court also said that the
``small number'' of animals affected cannot be defined in terms of
whether there would be negligible impact on the species, but rather is
an absolute number that must be determined to be ``small.'' The court's
far-reaching opinion underscores shortcomings in the MMPA that apply to
any world-wide military readiness activity, or any grouping of military
training activities that might be submitted for an overall review of
impact on the environment.
In addition to the decision to restrict deployment of the SURTASS
LFA system, two other recent decisions by different Federal district
courts have stopped scientific research due to concerns about acoustic
impacts to marine mammals. In one case, a court enjoined a seismic air
gun research on geological fault lines conducted by the National
Science Foundation off the coast of Mexico based on the court's concern
that the research may be harming marine mammals in violation of the
MMPA and NEPA. In another case, a court enjoined a Navy funded research
project proposed by the Woods Hole Oceanographic Institute designed to
study the effectiveness of a high frequency detection sonar (similar to
a commercial fish finder) in detecting migrating Grey Whales off the
coast of California.
The legislation proposed by the Administration provides solutions
to marine mammal issues on three levels. It defines harassment in terms
of significant changes in natural behavior patterns, thereby providing
a higher threshold when determining which military readiness activities
require National Marine Fisheries Service authorization. The proposed
legislation resolves the issues identified by the court in the LFA
litigation by recognizing the unique nature of military systems and
operations, allowing the Navy to address military readiness activities
and the areas in which they are conducted in a manner that makes sense
from an operational and training perspective. Finally, it creates a
national defense exemption that can be exercised when conditions
warrant by the Secretary of Defense after consulting with the
Department of Commerce and/or the Department of Interior.
ENDANGERED SPECIES ACT
Negative impacts on military readiness activities have also
resulted from the ESA. For example, the designation of land used for
military training as critical habitat under the ESA can undermine the
primary purpose for which these lands were set aside. Federal courts
have held that critical habitat is intended not only as a safe haven
for species survival, but also as a cradle for species recovery--even
if the species is not currently present on the land. Under the ESA,
Federal agencies are required to ensure that their activities do not
adversely modify designated habitats. Hence designation as critical
habitat can drastically limit land uses by placing inflexible
restrictions on land that has been dedicated by our nation to maintain
military readiness.
Guam
In some cases, the challenge of critical habitat designation has
become an issue even when the relevant endangered species are not
currently present. Under litigation pressure brought by environmental
groups in Federal court, the U.S. Fish and Wildlife Service (USFWS) has
proposed part of Guam as critical habitat for the Mariana Crow, Mariana
Kingfisher, and Mariana Fruit Bat. Guam is the headquarters of
Commander, Naval Forces Marianas (COMNAVMAR). Guam is a critical,
forward deployed facility providing essential logistical and training
support to our Fleet. This critical habitat designation proposal covers
roughly 7,500 of the 8,840 acres that comprise the Naval Ordnance
Annex. This Navy land is currently used as magazines for forward
deployed ordnance storage, jungle training areas (special operations
forces), and low-level aviation training areas by all military
services. None of the species for which the habitat would be designated
currently live on the land. Navy has formally objected to the proposed
designation, noting in part that in 1994 the Navy and USFWS entered
into a Cooperative Agreement to establish the Guam National Wildlife
Refuge. This 22,426-acre Refuge was created in lieu of a previously
proposed critical habitat designation involving the same three species
and covers 12,237 acres of Navy lands.
The proposal under consideration calls into question what is meant
by ``special management consideration'' under the ESA. We believe that
under the Act's present wording, if no special management
considerations are needed because of other conservation plans or
measures then the designation of critical habitat should be
unnecessary. Both the Guam National Wildlife Refuge and the U.S. Fish
and Wildlife Service approved COMNAVMAR Installation and Natural
Resource Management Plan for the Ordnance Annex provides such special
management considerations for the species' habitats. Accordingly,
designation of critical habitat should not be necessary.
Pacific Missile Range Facility (PMRF)
In February 2003, USFWS designated 177 acres of PMRF, Hawaii as
critical habitat for a species of grass. PMRF is a long, relatively
narrow strip of land on Kauai, critical to the testing and evaluation
of weapons, and capable of supporting a broad range of training and
testing, including amphibious landings and Missile Defense Agency
efforts to rapidly achieve an operational ballistic missile defense
capability. This designation, like those proposed on Guam, establishes
critical habitat for a species that does not exist there. While the
Guam and Hawaii critical habitat designations are current examples, a
concern is that special interest groups may use litigation to compel
designation of more and more military land as critical habitat. We are
further concerned that these particular critical habitat designations
are intended to provide precedence for future efforts to persuade Navy
to agree to introduce species onto Navy lands--that is, to use a
military training facility as a laboratory that could carry with it a
readiness and training loss associated with unnecessary critical
habitat designation.
The Administration has proposed a legislative solution to this
challenge that would rely on Integrated Natural Resource Management
Plans (INRMPs) in lieu of designating critical habitat. DoD is already
obligated to develop INRMPs 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 USFWS and state agencies,
and these agencies recommend ways for DoD installations to better
provide for species conservation and recovery.
There are examples that indicate that INRMPs are an effective tool
for protecting the environment. For example, at Naval Amphibious Base
Coronado, the primacy of the military mission has been balanced against
the conservation of endangered species with very positive outcome. We
have been able to ensure continued effective training while greatly
increasing the number of endangered sea bird nests. Through the Navy's
conservation and management programs, funded at $720,000 annually,
Least Tern nests have increased from 187 to 825 (more than a four fold
increase) and Western Snowy Plover nests have increased from 7 to 99
(nearly a 14 fold increase) in nine years. Similar good environmental
stewardship by the Navy has been demonstrated in a Navy-wide sea-turtle
conservation effort in which we invest about $1 million a year.
Adopting this recommended change to the ESA would better balance
training needs with the protection of threatened or endangered species.
Changing the law to establish clearly that an approved INRMP provides
sufficient species protection--rather than designating more and more
military land as critical habitats--would help retain an appropriate
balance between the military Services' training needs and endangered
species protection.
SUMMARY
We face numerous challenges and adversaries that threaten our way
of life. The President has directed us to ``be ready'' to face this
challenge. To fulfill this directive, we must conduct comprehensive and
realistic combat training--providing our Sailors with the experience
and proficiency to carry out their missions. This requires appropriate
use of our training ranges and operating areas and testing weapon
systems. The Navy has demonstrated stewardship of our natural
resources. We will continue to promote the health of lands entrusted to
our care. We recognize our responsibility to the nation in both of
these areas and seek your assistance in balancing these two
requirements.
I thank the Committee for your continued strong support of our Navy
and on behalf of Commander, U.S. Pacific Fleet I ask for your
consideration of the RRPI legislation. Passage of RRPI will help the
Services sustain military readiness today in this time of war and in
the future. 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 these goals.
______
The Chairman. Thank you.
Our next witness is Major General William G. Bowdon, III.
STATEMENT OF MAJOR GENERAL WILLIAM G. BOWDON, III, U.S. MARINE
CORPS, COMMANDING GENERAL, MARINE CORPS BASE, CAMP PENDLETON,
CALIFORNIA
General Bowdon. Chairman Pombo, Congressman Rahall,
distinguished members of this Committee, thank you for the
opportunity to come here today and express concerns about the
problems of encroachment.
My responsibilities as base commander at Marine Corps Base,
Camp Pendleton, are to provide the best training opportunities
possible for Marines and Marine units. We cannot be too well
trained. We strive for training that emulates the way we think
that we will fight. We schedule over 45,000 training activities
a year at Camp Pendleton's 125,000 acres, which is home to the
1st Marine Expeditionary Force and 18 endangered species.
Encroachment is degrading our ability to provide realistic
training. Training is burdened with regulatory restrictions.
Artificialities in our training result from avoidance measures
and work-arounds being forced upon the operators by various
environmental regulations. Our anecdotal experiences have been
quantified.
We have completed an 18-month quantification study. Over
700 required military occupational specialty and unit tasks
were assessed. Realistic tactical training can only be
completed to 68 percent of standard. Training most inhibited
includes off-road vehicular activity, digging, and earth
moving. The primary encroachment factors inhibiting training
and restrictions are from the Endangered Species Act.
Yes, we are training, but the current work-arounds are
problematic and the situation is only getting worse. Depletion
of regional habitat continues. The regulators exclusions for
critical habitat listings are being challenged in court. There
is a clear trend toward regulation by litigation by special
interest groups.
We have a good stewardship record at Camp Pendleton. Our
training footprint over the last 60 years of operations is
light and complementary to good land stewardship. That record
will continue to be maintained. If no action is taken, more
training will be crowded off the base.
We need your help. Your support is requested for DOD's
readiness and range preservation initiative, specifically, the
critical habitat preclusion based on our Integrated Natural
Resource Management Plan.
In conclusion, we realize that urbanization will continue.
We also realize that military training must not continue to be
the bill payer for that. What do I need for your to do? First,
we do not seek sweeping exemptions from the Endangered Species
Act. We firmly believe that we can conduct realistic training
and maintain our stewardship success through implementation of
our Integrated Natural Resource Management Plan. These two
missions are not exclusive of each other, but a balance is
currently lacking. We need your legislative clarification, we
need your legislative recognition and protection for our
mission requirements at Camp Pendleton, such as are provided by
the RRPI.
This is a national issue, with shared responsibilities to
find solutions. Given those solutions, I can return to my base
and effectively balance my responsibilities.
Again, the Marine Corps thanks you for your recognition of
this important issue. I look forward to your questions.
[The prepared statement of General Bowdon follows:]
Statement of Major General William G. Bowdon III, Commanding General,
Marine Corps Base Camp Pendleton, United States Marine Corps
Chairman Pombo, Congressman Rahall, and distinguished members of
the Committee, thank you for the invitation to report on the effect
encroachment is having on Camp Pendleton's ability to support the
training and readiness requirements of Marines and units operating on
and deploying from this vital Marine Corps training installation. On
behalf of the Marine Corps, I want to thank the Committee for its
interest and support. Your attention reveals both a commitment to
ensuring the common defense and a genuine concern for the welfare of
our Marines and their families.
BACKGROUND
By way of background, Marine Corps Base, Camp Pendleton is the
Marine Corps' only training installation on the West Coast for
amphibious operations--operations that involve the projection of U.S.
force from the sea, which is a principle mission of the Corps. Camp
Pendleton is the home of the 1st Marine Expeditionary Force (MEF),
which as you know is heavily engaged in Operation Iraqi Freedom. Major
subordinate commands of the MEF, the 1st Marine Division, the 1st Force
Service Support Group, and elements of the 3rd Marine Aircraft Wing are
also based at and train on Camp Pendleton. Elements of the MEF, Marine
Expeditionary Units (MEU) are continuously deployed year-round, in
support of operations and contingencies in the western Pacific and
southwest Asia.
Camp Pendleton's mission is to provide ranges, training lands, and
facilities on which Marines can train to achieve the highest possible
state of combat readiness. Mr. Chairman, I cannot state strongly enough
that the ability of our Marines to achieve their mission and survive in
combat depends directly and completely upon the quality of leadership
and training they receive. If we cannot provide our Marines, who train
on and deploy from Camp Pendleton, with the ability to train as they
will be expected to fight in combat, then we (the Marine Corps) will
not have met our obligation, either to the Nation or to the Marines
that put their lives on the line when called to do so.
Within the past decade, the ability of Camp Pendleton to provide
the realistic training environment necessary to prepare Marines for
combat has eroded significantly. The factors that cause this
degradation of mission capability are termed encroachment by the
Department of Defense (DoD). Encroachments present an immediate,
serious challenge to the capability of the Base to perform its military
mission. Today, the encroachment factors with the potential to impede
military training include urban growth, competing land uses, endangered
species, cultural resources, and wetlands regulation, airspace
restrictions, airborne noise, and air quality.
While we face all of these encroachment factors at Camp Pendleton,
endangered species issues are among our most pressing concerns. Camp
Pendleton is rich in natural resources and biodiversity, including 18
species listed as threatened or endangered, which have coexisted with
our military training and operations for some 60 years now. Still, as
the biodiversity of the region surrounding the Base has been steadily
depleted by development, the value and regulation of Camp Pendleton's
resources have increased. Predictably, restrictions on the military
training and operations that occur and need to occur on the Base have
increased correspondingly.
As you are aware, just over two years ago on March 20, 2001,
congressional dialogue on encroachment impacts was opened by the Senate
Armed Services Committee's Subcommittee on Military Readiness and
Management Support. Well before 9/11, the Senate, and other
congressional committees (such as the House Government Reform Committee
and House Armed Services Committee) invited the Marine Corps to provide
testimony on the subject of encroachment and its effect on our Title
10-mandated national security missions.
In past hearings, the Marine Corps reported on the impacts of
encroachment by providing examples, primarily anecdotal, based on the
experience of our trainers. We raised concerns with regard to an
erosion of Camp Pendleton's capability to provide realistic combat
training for Marines and other services that train on our installation
and ranges. Simply stated, the Marines who train at Camp Pendleton and
the leadership of the Base, we who are responsible for providing the
best possible training environment, have observed that encroachments in
fact have degraded and continue to degrade the Base's capability to
provide for realistic combat training.
Our commanders have reported that their tactical decisions
increasingly are being driven more by restrictions and prescriptions to
avoid impacts to protected resources than by the application of sound
military doctrine. On a broader scale, the primary determinant for Camp
Pendleton's land use has been undergoing a fundamental and disturbing
transition--from a Title 10-based, military driver with a
responsibility for conservation, to a conservation-based driver within
a military context. Marine commanders and small unit leaders should be
taught to develop sound tactical schemes of maneuver based upon the
mission, the enemy situation and disposition, the terrain, and sound
tactics. Yet in the context of training at Camp Pendleton, they are
required to plan their training scenarios to avoid protected species
and resources and seek permissions and clearances to execute very rigid
and tightly orchestrated events. This situation not only significantly
diminishes the training value of the exercise but also can instill
undesirable habits in our Marines.
QUANTIFYING ENCROACHMENT IMPACTS
To verify the operator's anecdotal experience, Marine Corp Base,
Camp Pendleton has been engaged in an effort to develop a methodology
and a mechanism that would help us to identify and quantify the
encroachment factors that impact the Base's ability to train Marines.
A contracted study, just completed, conducted an assessment of 739
training tasks, as established by Marine Corps Orders, and concluded
that encroachment has a measurable negative impact on field training at
Camp Pendleton. The data indicated that all field training assessed at
Camp Pendleton is affected to some degree by encroachment with ground
training tasks being impacted the most. Realistic training is
significantly degraded within prime maneuver corridors, training areas,
and on the training beaches at Camp Pendleton due to encroachments. For
75 percent of the entities assessed within the context of a notional
tactical scenario, the Base could support completion of required tasks
to less than 85 percent of the established standard. For 37 percent of
the entities assessed within the same scenario, the subject matter
experts reported that Camp Pendleton could support the completion of
required tasks to less than 70 percent of the established standard. The
study determined that a Battalion Landing Team, which is the combat
power of a MEU, could complete its required non-firing tasks to less
than 68 percent of the Marine Corps standard in a notional tactical
scenario. It is precisely the type of training that is required to
prepare Marine Corps MAGTFs for deployment and combat that also is most
affected by encroachments at Camp Pendleton.
As Figure 1 (A-1) reflects, the effects of encroachment on training
increase according to the relative complexity and size of the training
event. In general, when tactics are factored into the assessment, the
larger the unit involved and the more advanced the task the more
significant and adverse the impacts of encroachment on the task
completion percentage. In the same vein, the study concluded that the
more complex and integrated combat training, involving multiple combat
elements, maneuver, and tactical operations, generally is more
restricted by encroachment than intermediate unit level training.
Intermediate unit training, in turn, generally is more restricted than
individual training.
The quantification study confirms that the types of training most
inhibited by encroachment include digging, earth-moving activities, and
off-road vehicular movement. Limitations on digging have implications
far beyond the simple foxhole or fighting position, as important as
that is. If individual digging is highly restricted, or regulated, then
imagine the difficulty of preparing company or battalion defensive
positions. Earthmoving activities to construct emplacements for vehicle
or weapons systems, such as artillery pieces, and vehicle recovery
operations cannot be accomplished on any significant operational scale.
In this case we find the data being reinforced by anecdote, by our
operators' real world experiences.
In testimony in May of last year before the House Government Reform
Committee, the Commanding Officer of the 15th MEU, who had just
returned from Operation Enduring Freedom, Afghanistan, stated that
``...The establishment of the security and defensive posture at this
position was, in reality, the first time the Marines were able to
actually dig and construct appropriate fighting positions required for
protection.'' He added that ``...This technique, which should be second
nature to Marines in a combat theater, is rarely used in training due
to environmental restrictions.''
Our quantification effort also has revealed that regulatory
restrictions to limit impacts or potential impacts to protected natural
and cultural resources constitute over 70% of the primary encroachment
factors affecting Camp Pendleton's capability to accommodate essential
military training. Compliance with the Endangered Species Act is the
leading encroachment factor impacting military training and operations
at Camp Pendleton. Despite declarations to the contrary by some groups,
our quantification analysis indicates that physical obstacles, such as
Interstate 5 and the nuclear power generation plant, both of which have
been in place for decades, are not the leading encroachment factors
confronted by our forces as they train aboard Camp Pendleton. Our
operators insist that the most significant degradation of their
training has occurred over the last 10 to 15 years, coincidental with
unfettered urbanization and the associated depletion of biodiversity
and habitat fragmentation, and the resultant increase in numbers and
regulation of endangered species and resources. Unlike infrastructure,
which is fixed in time and space, most endangered species move, they
often multiply when effectively managed, and additional species become
listed as a result of factors over which the Marine Corps has little or
no control.
Allow me to provide another real world experience that reinforces
this finding. Recently, Marines of the 1st Marine Division approached
my staff with a real-world operational requirement to conduct vehicle
recovery operations in our Base's lake and ponds and in one of our most
highly protected areas, the Santa Margarita River (SMR) estuary. The
estuary training was most important to our Marines because it is the
largest and only estuary with significant tidal action. There the crews
would be subject to changing conditions associated with tidal flows,
they could be trained to recognize the optimal crossing points that
would support tracked vehicle operations with reduced risk of becoming
mired, and to conduct recovery operations while maintaining the
momentum of the advance. The estuary also is a prime nesting and
management area for endangered California least terns and western snowy
plovers; it also is considered essential fish habitat and is designated
as critical habitat for the tidewater goby. The unit's request was
initiated during the non-nesting period for the least terns and snowy
plovers. From the time the request was received, it took two months,
and a commitment to implement required avoidance measures, to process
the request and receive regulatory clearances for our Marines to
conduct their training in the lake and ponds. The process required four
months, however, to accomplish the required surveys, prepare necessary
documentation, conduct the consultation, and receive regulatory
clearances for training in the SMR estuary. Thus, even with all parties
providing expedited, priority handling of this operational requirement,
the ultimate result was that recovery operations were limited to the
lake, as the unit was mobilized and deployed to combat prior to being
able to train in the estuary. This is not acceptable.
For years these units have been required to train for vehicle
recovery operations by use of a single ditch, specifically established
for such operations. One vehicle, one at a time, could pull into the
ditch, get stuck and be pulled from the mire. In no conceivable way can
this ``canned'' process be construed to prepare a Marine in vehicle
recovery operations for a real-world theater situation. This limited
level of training does not begin to replicate the dynamics of vehicle
recovery operations while under fire or pressure to maintain the
advance, the integrity of an assault and, ultimately, the capture of an
objective.
The tragedy of this situation is that for many years Camp Pendleton
Marines have accepted that they could not conduct these required
operations on the Base--either individually or as a unit--within a
tactical scenario. Hence, a critical skill set was allowed to atrophy.
A related aspect of great concern, highlighted both by these incidents
and by the quantification study, is not to be missed. That lesson is
that these deficiencies are then carried over to and absorbed by the
major commands to which the Marines are joined and with which they
deploy for combat.
This is not to suggest that we can anticipate or should expect the
opportunity to rehearse every potential complex, combat evolution.
However, what we have learned over the past decade, now reinforced by
our recent quantification study, is that we require key areas of Camp
Pendleton to be capable of providing an optimal combat training
environment. Unit commanders and small unit leaders must be able and,
indeed, required to exercise and hone their tactical decision-making
skills within the context of scenarios that allow for free play and
require instantaneous and correct decision-making.
Restrictions on Camp Pendleton's amphibious landing beaches are
well documented in the congressional records, so I will not restate
them here except to note that amphibious assaults, raids, and
withdrawals are core missions of our Marine Expeditionary Units,
Special Operations Capable (MEUSOC's). In addition, the Navy and Marine
Corps strategy of From-the-Sea and Over-the-Shore Projection of Force
and Sustainment operations requires that we have beaches where
realistic amphibious operations can be conducted. Our Marines must have
some beach areas available where they can recreate conditions that they
expect to encounter in the execution of their global contingencies. In
that regard we continue to work closely with our regulatory agencies to
reduce those restrictions related to protected resources on our primary
training beaches and other areas of the Base to provide more open and
realistic use of these crucial training areas.
We are concerned, however, that, in today's climate of regulation-
by-litigation, certain laws may not support efforts to accommodate
military training and mission requirements in regulatory determinations
and opinions. Thus, we view the Department of Defense's Readiness and
Range Preservation Initiative as pivotal in the effort to halt the
steady erosion of the capability of our installations and ranges to
provide realistic training experiences for present and future Marines,
units and weapons systems.
READINESS AND RANGE PRESERVATION INITIATIVE
Migratory Bird Treaty Act
The provision enacted by Congress last year, as a result of DoD's
Initiative, allows some take of migratory birds, incidental to military
training, while requiring that such take be minimized. To operators in
the field this provision provides significant benefit as our training
activities were previously subject to potential litigation and
injunction. Be assured that Camp Pendleton will, through its Integrated
Natural Resource Management Plan process, continue to identify measures
to monitor, minimize and mitigate--to the extent practicable--adverse
impacts to migratory birds that may be attributable to our military
readiness activities.
Buffer Acquisition
Through last year's Defense Authorization Bill, Congress granted
the authority to military departments to partner with non-governmental
organizations, and State and local governments to acquire land adjacent
or proximate to military installations to prevent incompatible
development, and to preserve habitat that may eliminate or relieve
current or anticipated environmental restrictions that could interfere
with military training, testing or operations. Already, Camp Pendleton
has initiated a partnership effort, the South Coast Conservation Forum
(SCCF), to investigate opportunities to acquire interest in lands that
could assist in the conservation of many of the Federally protected
species in the region. Participating in the SCCF are representatives of
Orange, Riverside and San Diego Counties, and non-governmental
conservation organizations such as The Nature Conservancy, Trust for
Public Land, Sierra Club and Endangered Habitats League. Though driven
by differing concerns and motivations, this group is quickly finding
common purpose for acquiring lands available from willing sellers to
support compatible land use and help achieve both encroachment relief
and resource conservation objectives.
Critical habitat
Marine Corps concerns about the potential impacts of critical
habitat on training at Camp Pendleton often have been described to the
Congress, the U.S. Fish and Wildlife Service (Service) and the public.
In February 2000, the Service proposed to designate nearly one-half of
Camp Pendleton, including all or part of 26 training areas, as critical
habitat for the coastal California gnatcatcher. Subsequent,
geographically overlapping proposals for several additional species
expanded the potential designation of critical habitat to include 57
percent of Camp Pendleton's 125,000 acres, Figure 2 (A-2). In response,
the Marine Corps provided detailed comments voicing serious concerns
about the impacts of these proposals on training at Camp Pendleton. In
his letter forwarding these comments to the Director of the Service,
the Commandant of the Marine Corps stated: ``Increasingly, limitations
on our land use flexibility present a major readiness issue. At stake
is the success and survival of our Nation's Marines and Sailors in
combat. The proposed critical habitat squarely implicates these urgent
military readiness concerns.'' (Commandant of the Marine Corps, Letter
to Director, U.S. Fish and Wildlife, April 6, 2000.)
In October 2000, after extensive inter-agency dialogue, both Camp
Pendleton and MCAS Miramar were excluded from the final gnatcatcher
critical habitat rule, on the basis of Integrated Natural Resources
Management Plans (INRMPs) and the finding that for Camp Pendleton the
benefits of exclusion outweighed the benefits of designation under ESA
Section 4(b)(2). Subsequently, the Service applied these approaches to
exclude military lands in critical habitat proposals for additional
species on Camp Pendleton and MCAS Miramar, and to other military
lands, including Vandenburg Air Force Base, Camp Parks and Camp San
Luis Obispo, California.
The Natural Resources Defense Council (NRDC) immediately sued the
Service alleging that the exclusion of Marine Corps lands from critical
habitat violated the ESA. These contentions have not been resolved, but
have been preserved after the Service petitioned to withdraw and re-
examine the gnatcatcher critical habitat rule. As directed by the
court, the Service has re-proposed critical habitat for the gnatcatcher
and the San Diego fairy shrimp within this past week. The Service has
broadly excluded Camp Pendleton from both proposals; approximately 7700
acres are currently proposed as critical habitat for the gnatcatcher
and 850 acres of Base lands are proposed for the San Diego fairy
shrimp. Similar to such exclusions previously applied to Camp
Pendleton, the Service has indicated its understanding of the potential
adverse impacts to military training and that those impacts outweigh
the potential benefit to the species provided by designation of
critical habitat for these species. While we recognize and appreciate
the Service's efforts to consider the relevant impacts to our military
mission, we have every expectation that, should the final rules for
these species also exclude significant portions of Camp Pendleton,
there will be a renewal of litigation challenging those exclusions.
Thus, the potential remains that 57% of Camp Pendleton lands could be
designated as critical habitat, pending court determinations or a
legislative remedy. In the meantime, developing case law has had much
to say about critical habitat, with a Federal district court opinion
holding that the Service's policy on critical habitat designation is
unlawful.
Designation of military lands as critical habitat presents a
complex public policy problem in sharp focus. The Service has
thoughtfully attempted to address this problem through regulatory
critical habitat exclusions. These efforts, however, repeatedly have
been challenged, and undoubtedly will continue to be challenged, in
litigation that disregards military readiness concerns. Having
exhausted efforts at administrative and negotiated approaches to
solutions, the Marine Corps looks to Congress for guidance. We believe
that legislative exclusion of military lands from critical habitat
rules is both appropriate and necessary, and is the only solution that
will provide the certainty and flexibility we need to train
effectively. The critical habitat provision of DoD's Readiness and
Range Preservation Initiative proposal, which would exclude military
installations and ranges with approved INRMP's in place from
designation of such lands as critical habitat, would provide measured
and much needed relief from related encumbrances on our military
mission activities.
Findings
Among the most important aspects of DoD's RRPI for Camp Pendleton,
and as Chairman of the West Coast Regional Review Board I speak for all
Marine Corps installation commanders in the Southwest, are the findings
that provide congressional recognition of the fundamental purpose for
the existence of our installations and ranges. We consider codification
of these findings to be absolutely essential to address core
encroachment issues by affirming the principle that our military
installations, ranges, and airspace exist to ensure military
preparedness. Such language is necessary to establish the basis, the
balance point, for inclusion of national security requirements in
regulatory determinations. Although the basic principle that military
lands exist for military purposes, as articulated by the RRPI's
findings, would seem self-evident, we find that is generally not the
case.
That said, we do not understand the RRPI to be seeking sweeping
exemptions from our Nation's environmental laws. We see this initiative
to be narrowly focused on a few important resource-related laws and
only as they may relate to or unacceptably inhibit our military
readiness capabilities that are required by Title 10, U.S.C. The RRPI
does not lessen to any degree my responsibility to fully comply with
laws that protect both the health and safety of the citizens of our
neighboring communities and our natural resources. Camp Pendleton's
record clearly reflects our commitment to compliance and responsible
stewardship of this national treasure entrusted to our care. I can
assure you that Camp Pendleton is committed to continue to advance both
compliance and responsible management of our resources to support the
sustainable use of our ranges.
STEWARDSHIP
In that regard, Camp Pendleton has a proven record of diligent and
responsible stewardship of the environment, including the natural
resources entrusted to our care. We remain committed to managing all of
our resources, including listed species, in compliance with applicable
law. Over the years, our military training has proven to be compatible
with healthy ecosystems, and our stewardship both enhances that
compatibility and provides assurance of sustainable use. A fundamental
principal of our land use and management has been, and will remain,
retention of the large, contiguous open spaces necessary for realistic
training.
At Camp Pendleton, previous Base commanders and I have restricted
infrastructure development to less than 15% of the Base. When
additional facilities have been required, our preferred approach has
been to refurbish or replace outdated facilities, or to build within
existing developed areas. This disciplined land management, coupled
with the fact that military training is a relatively low-impact land
use (David S. Wilcove, et.al., Quantifying Threats to Imperiled Species
in the United States, 48 Bioscience 607, (August 1998)), has resulted
in the continuing presence of large tracts of natural habitat
beneficial to the wildlife that occupies our lands. In marked contrast
to the typical development practices found in other parts of the
region, Camp Pendleton's experience is that species, both Federally
listed and not listed, coexist with our operations and flourish under
our management.
In October of 2001, Camp Pendleton published and began
implementation of our Integrated Natural Resources Management Plan
(INRMP). The import of the INRMP is that it addresses ecosystem
requirements holistically, considering the human element (military
mission) as an integral part of the ecosystem, and integrates our
resource management with our mission essential training and operations.
Indeed, the Sikes Act Improvement Amendment (SAIA) requires that INRMP
implementation support mission and not constitute a ``net loss'' in the
capability of the installation to support mission requirements. So as
land is managed to provide long term, renewal of resources, both the
mission and species (listed and unlisted) benefit. It is important to
note that implementation of INRMP's is complementary to the Endangered
Species Act (ESA) and does nothing to diminish the requirement to
comply with the ESA. In fact, Camp Pendleton's INRMP is structured to
include all regulatory agreements and requirements established through
consultation under the ESA, thereby providing heightened visibility for
those commitments.
Over the past five years the Marine Corps has invested, on average,
approximately $32 million per year in Camp Pendleton's environmental
program. Generally, over $4 million per year has been applied to
support our natural and cultural resources programs, with an average of
$1.7 million applied directly to threatened and endangered species
related requirements. The species depicted in Figure 3 (A-3) represent
indicator species for the primary ecosystems that comprise Camp
Pendleton--riparian, beaches, and uplands. The least Bell's vireo
(riparian species), least tern (beach species) and coastal California
gnatcatcher (uplands species) have enjoyed significant success under
Base management. The Fish and Wildlife Service has established
conservation goals, for some of the listed species we manage, in
recovery plans and in the course of consultations under ESA. For the
least Bell's vireo, the Base's goal of 300 breeding pairs was
established in 1995. Today, we have exceeded that goal by 150%, with
over 750 pairs of this species, even considering the significant
drought conditions of the past three years. Similarly, for the least
tern, the Service's 1980 recovery plan established the recovery
objective for the entire species at 1200 pairs distributed in 20 areas
over its entire range. Today, Camp Pendleton alone supports 1000 pairs
of least terns.
As the populations of listed species increase on Base and as more
species that use our habitats become listed, associated restrictions
have and will continue to blanket our training lands with increasing
limitations on our ability to support mission-essential training
requirements. The presence of multiple listed species on Camp Pendleton
and required avoidance and minimization measures impose significant
constraints on where we train, when we train, and how we train. Hence
our dilemma and the reason for my testimony before you today--the costs
of endangered species compliance and our resource management programs
transcend mere dollars. As our quantification assessment concludes, the
true bill-payer is realistic combat training--and for Camp Pendleton,
that has become a source of grave concern.
CONCLUSION
Camp Pendleton is the Marine Corps' only amphibious training base
for the west coast, and the only west coast installation capable of
supporting combined and comprehensive air, sea and ground combat
training. Moreover, its proximity to the Navy's homeport at San Diego
is strategically significant in supporting mobilizations and
deployments to and contingencies for the western Pacific and Southwest
Asia. The Base is a cornerstone of the Marine Corps' training range
complex in the southwestern United States, which includes the Marine
Corps Air Ground Combat Center in 29 Palms, the Barry M. Goldwater
range near MCAS Yuma, Arizona, and the Chocolate Mountains range in the
southeastern corner of California. Each installation plays an integral
role in the training of Marines and MAGTFs for combat operations. Many
of these ranges also are utilized by Marine units from Camp Pendleton
to accomplish specific training requirements and as ``workarounds''
necessary to obtain required training that cannot be satisfactorily
completed at Camp Pendleton. Workarounds are not a satisfactory
solution. Since these events then must be accomplished in a segmented
fashion that is isolated in time, space, and context, much of the
tactical decision-making, timing, and training value is lost.
Workarounds are insidious in nature, in that they provide the illusion
that the training has been accomplished.
While encroachment concerns presently are acute at Camp Pendleton,
the Marine Corps also is concerned about encroachments at all
installations and ranges in the region. As training opportunities
become more encumbered with restrictions or are lost altogether and as
encroachment pressures continue to mount--locally, regionally,
nationally, and overseas--threats to readiness from the loss of range
capabilities are an immediate and serious concern.
Solutions are necessary. A 1992 study of military training in the
context of environmental regulation concluded that potential conflicts
present ``an unusually profound public policy problem.'' (``Two Shades
of Green: Environmental Protection and Combat Training'' (Rand 1992).)
At Camp Pendleton, we face this profound problem every day. Conflicts
or potential conflicts between realistic training and environmental
rules, the challenges presented by urban growth, and other competition
for scarce land, sea and airspace training resources must be resolved
in a way that does not further degrade training.
Again, I thank you for the opportunity to present the Marine Corps'
concerns though the eyes of one of its installation commanders. I trust
that this testimony will be helpful to your distinguished Committee.
Let me assure you that we at Camp Pendleton will continue to be a
responsible, effective steward of our environment and our natural
resources. We also will continue our efforts to identify and quantify
the effects of encroachments on our Federally mandated missions. With
your assistance and support of DoD's Readiness and Range Preservation
Initiative, I am confident that we can achieve and maintain the
appropriate balance between military readiness and competing demands
for scarce resources. This we must do to ensure that your Marines and
their units will be trained and ready to deploy at the highest possible
readiness when called by our Nation to do so.
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The Chairman. Thank you.
Our next witness is Colonel Frank C. DiGiovanni.
STATEMENT OF COLONEL FRANK C. DiGIOVANNI, U.S. AIR FORCE,
CHIEF, RANGES, AIRFIELDS AND AIRSPACE, OPERATION AND
REQUIREMENTS DIVISION, AIR COMBAT COMMAND
Colonel DiGiovanni. Mr. Chairman, distinguished members of
this Committee, thank you for the opportunity to speak to you
on this very important issue.
I would like to start off by giving you a bit of my
background. I have 2,000 hours in the B-52H, the F-15A, and the
A-37, a close air support aircraft. I have 11 years of
experience in the combat training range community. I commanded
the 99th Range Support Squadron at Nellis Air Force Base,
responsible for the management of 3.1 million acres of the
Nevada Test and Training Range. I worked combat training range
equipment requirements at the major command level, and also
range policy at the Air Force level. I currently serve as the
Chief of Ranges, Airfields and Airspace Operations and
Requirements at Headquarters, Air Combat Command, Langley Air
Force Base, where we are responsible for the management of nine
combat training ranges on 4.5 million acres of land.
How will the Integrated Natural Resource Management Plan
Provision of the Readiness Range Preservation Initiative help
the Air Force conduct its readiness training? First let me say
that we're constantly upgrading and reconfiguring our ranges.
Let me give you a few examples.
Prior to Operation Enduring Freedom, we built new target
sets on the Nevada Test and Training Range, and also on the
Utah Test and Training Range, that resembled Taliban caves and
their encampments. These unique target sets were used to
prepare our aircrew members for combat operations just prior to
their deployment to Afghanistan.
Another example, prior to Operation Enduring Freedom--I'm
sorry, Iraqi Freedom--bomber and fighter aircrew members worked
extensively to develop new ground-directed attack tactics
against urban target sets and highly mobile Scud missile
systems on the Nevada Test and Training Range.
The effectiveness of these tactics was graphically
demonstrated when an Air Force B-1 dropped four joint directed
attack munitions on a Baghdad restaurant suspected to be a
Saddam Hussein hideout. From notification to bombs on target, a
mere 15 minutes.
In these two examples, U.S. Fish and Wildlife Service
approved INRMPs provided us the flexibility to rapidly respond
to worldwide contingencies while protecting threatened and
endangered species, through a carefully thought out planning
process.
Continued access to these tremendous national training
resources is essential to our airmen going into combat, with
the unique confidence that they are the finest trained Air
Force in the world. Our measure of success is simple: we want a
lethal, combat survivable warfighter that will come home when
the hostilities are over.
Thank you for the opportunity to speak to you today, sir.
[The prepared statement of Colonel DiGiovanni follows:]
Statement of Colonel Frank C. DiGiovanni, Chief, Ranges, Airfields and
Airspace, Operations and Requirements Division, Air Combat Command
Introduction
Mr. Chairman, members of the Committee, I greatly appreciate the
opportunity to address you today on the Readiness and Range
Preservation Initiative (RRPI) and the potential benefits it offers to
our ability to train if it were enacted into law.
I'd like to start off by giving you a bit of my background. I have
over 2000 hours in the B-52H, the F-15A and A-37B (close air support)
aircraft and have almost 11 years of experience in the range community.
I commanded the 99th Range Support Squadron at Nellis Air Force Base
which is responsible for the management of the 3.1 million acre Nevada
Test and Training Range. I also worked combat training range equipment
requirements at the major command level and range policy at the HQ Air
Force level. I currently serve as the Chief of Ranges, Airfields and
Airspace Operations and Requirements Division at Headquarters Air
Combat Command (ACC).
Our ranges and training airspace are critical national assets that
allow the Air Combat Command to develop new tactics and train our air
forces to be lethal and survivable. At a time when increased OPSTEMPO,
aging equipment, and personnel challenges are threatening our
readiness, it is critical we have to the maximum extent possible,
unencumbered use of these valuable resources to prepare our warfighters
for combat operations.
The loss or restricted use of ranges and operating areas forces us
to find workarounds or to delay and reschedule needed training. These
constraints inhibit our ability to test and train realistically and
degrade our combat readiness. As pressures due to encroachment continue
to grow, managing the operational and financial risks without
compromising our mission will become increasingly difficult.
The Air Combat Command, in partnership with our counterparts in the
other Services and the community, is committed to addressing these
challenges. We are confident in our ability to provide the necessary
balance between operational needs, environmental protection and the
needs of the community and RRPI will help us do that.
The Readiness and Range Preservation Initiative will provide
changes to specific environmental statutes needed by the military
services and protect access to our training resources while continuing
to protect the environmental resources of the lands entrusted to us by
the public.
Species and Habitat Protection
The critical habitat clarification of RRPI is a very important
component of this initiative. We have over 25 Federal listed threatened
and endangered species and 64 species of concern on approximately 4.5
million acres of ACC rangeland. My Division is composed of an
interdisciplinary team of aviators, PhD biologists, civil engineers, a
public affairs officer, airspace managers and an environmental attorney
all charged with the objective of maximizing the use of the ranges we
manage while protecting the priceless natural and cultural resources
that we have on our ranges.. Additionally, ACC ranges employ nearly 50
full-time natural and cultural resource management personnel throughout
the command who assist the headquarters with this charter. We also
consult extensively with U.S. Fish and Wildlife Service (FWS) and the
state game and fish agencies on the development and implementation of
our Integrated Natural Resource Management Plans. We ensure that these
plans incorporate the best available science and credentialed expertise
to minimize the impacts of our training operations.
Through the use of Integrated Natural Resource Management Plans, in
partnership with the Department of Interior, we have had great success
in managing the lands entrusted to us by the public. For example, the
Nevada Test and Training Range supports the Bureau of Land Management's
wild horse program on 390,000 acres of the NTTR. In the southern
portion of the range we have fenced target areas to ensure the
endangered desert tortoise is not adversely affected by our operations.
On the Barry M. Goldwater Range (BMGR) in Arizona, which is used
extensively by ACC A-10 aircraft, Luke Air Force Base personnel
assigned to the Air Education and Training Command track the movement
of Sonoran pronghorn on the range. The DoD flies about 70,000 sorties
yearly on the BMGR, and our biologists monitor the target areas for
pronghorn movements. If any are spotted within a two-hour period prior
to bombing, the live 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 Pronghorn.
We are constantly upgrading and reconfiguring our ranges. For
example, just prior to OPERATION ENDURING FREEDOM, both the NTTR and
the Utah Test and Training Range (UTTR) constructed simulated cave
targets similar to those in use by the Taliban and Al Queda. These
realistic target simulations were used to provide our warfighters with
critical, mission rehearsal training, thereby improving their lethality
in combat. These skills proved very valuable during our attacks on
Taliban and Al Queda strongholds.
We would not have had the required flexibility to conduct this
essential training on NTTR and UTTR if we had designated critical
habitat for the desert tortoise or other species in and around the
simulated cave targets. This is because the time required to prepare
biological assessments and complete consultations with FWS would not
have been sufficient given the quickness in which wartime operations
were commenced after 9/11.
Given these examples, superimposing critical habitat designation on
top of our integrated management plans does not appear to provide added
benefit to T&E species. However, a critical habitat designation, would
have an adverse impact on our ability to quickly adapt and reconfigure
the training environment to respond to evolving real world combat
situations.
Range Residue Removal
As a range manager, the clarifications proposed in the RRPI
regarding military munitions are also critically important to me. Most
of the weapons we drop on our ranges are training munitions, either
wholly inert or with a spotting charge. We maintain our ranges by
periodically clearing off all these items, demilitarizing them, then
sending the metals off to steel mills for recycling or to permitted
landfills.
The RRPI will mirror the existing Military Munitions Rule by
clarifying that munitions used for their intended purpose--dropped on
an operational range--will not be considered a hazardous waste under
the Resource Conservation and Recovery Act (RCRA) nor a release under
the Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA). This would allow us to manage our ranges safely,
responsibly and cost effectively while protecting the environment and
the public.
ACC has instituted a command-wide, range residue removal regime in
which we invest approximately $4 M annually. This regime consists of a
four-step process. First our explosive ordnance disposal experts and
range operations and maintenance contractors clear the munitions and
residue from the range target areas. Unexploded items are rendered safe
and inert items are consolidated at a holding area on the range.
Second, the munitions and residue are demilitarized by shearing or
crushing with specialized equipment and then are certified free of
energetic material. Next a ``third party'' explosive ordnance disposal
expert validates the first certification. Fourth and finally, a
government quality assurance inspector oversees the entire operation.
In the five and half years since ACC instituted this program, we have
had zero mishaps or environmental violations and have successfully
removed an estimated 79 million pounds of residue from our ranges.
If these materials were considered hazardous waste then we would
not be able to conduct these operations without cost-prohibitive
permits and infrastructure. Securing these permits and building the
infrastructure would not add any additional environmental protection.
RRPI does confirm that, in the rare instance, that any munitions or
munitions constituents land or travel off-range, that they would be
regulated under the Comprehensive Environmental Restoration,
Compensation and Liability Act (CERCLA). If munitions-related-material
moves off the range, it still must be addressed promptly under existing
environmental laws. Moreover, if munitions cause an imminent and
substantial endangerment on-range, EPA would retain authority to
address it on range under CERCLA.
These clarifications would allow us to conduct realistic, cost
effective training on our operational ranges yet continue to be good
stewards of the lands entrusted to us.
Summary
Military training ranges are protected lands and vital national
resources. Each range typically has small impact areas where munitions
are employed, surrounded by large safety buffers where wildlife thrives
in relatively undisturbed natural habitat. In fact, our ranges have
been frequently described as ``islands of biodiversity''. By closely
managing these areas, in cooperation with the FWS and the state game
and fish agencies, we are ensuring that our training activities are
compatible with the continued existence of these species.
Conclusion
The Readiness and Range Preservation Initiative will provide needed
clarification to specific environmental statutes and protect access to
our training resources while continuing to protect the environmental
resources of the lands entrusted to us by the public.
As we speak, the men and women of Air Combat Command are risking
their lives over southwest Asia as part of our nation's global war on
terrorism. Coalition air forces successes are due in large measure to
the high fidelity training enabled by access to these tremendous
national resources. These assets ensure our national defense by
allowing these brave airmen go into combat with the unique confidence
that they are the finest trained Air Force in the world. This essential
confidence exists because of a continuing commitment by the U.S.
government and the people of this country to provide the very best
training resources to our warfighters. We believe that the provisions
of the Readiness and Range Preservation Initiative will help us to
continue to provide our airmen the training environment needed to
ensure their lethality and survivability when prosecuting our national
military objectives in the future.
______
The Chairman. Thank you.
Our next witness is Rear Admiral Jeff Hathaway.
STATEMENT OF REAR ADMIRAL JEFFREY J. HATHAWAY, U.S. COAST
GUARD, U.S. DEPARTMENT OF HOMELAND SECURITY
Admiral Hathaway. Thank you, Mr. Chairman. On behalf of the
Coast Guard Commandant, Admiral Tom Collins, I thank you for
this opportunity to appear before the Committee today.
Before I begin my brief statement, I will point out that,
although I sit here today alongside my DOD uniform brethren,
the Coast Guard is part of the new Department of Homeland
Security.
The Endangered Species Act and the Marine Mammal Protection
Act helped form the foundation for the Coast Guard activities
supporting our strategic goal, protecting America's natural
resources. The Coast Guard is a primary maritime enforcement
agency for regulations related to both Acts. The applicable
regulations require a delicate balance between day to day
operations and full compliance with the Act.
Ironically, enforcement actions, which are of great benefit
to marine mammals and other protected species, oftentimes place
the Coast Guard units at greatest risk of violating the Acts.
For example, Coast Guard units in New England enforce dynamic
area management zones designed to protect northern right
whales. To accomplish this, units must enter areas where right
whales are certain to be found to ensure fishermen comply with
regulations designed to reduce the probability of
entanglements. Another example is when Coast Guard units in
Florida enforce manatee speed zones and marine sanctuaries.
The Coast Guard has established specific guidelines and
procedures to ensure our operations are currently conducted at
minimal risk to protected species and their habitats. These
include relocating training areas away from protected species
habitats, training shipboard lookouts in marine mammal
identification, and requiring Coast Guard vessels to reduce
speed when marine mammals are present.
The proposed amendments impact another Coast Guard
strategic goal, however, and that is national defense. As you
are well aware, the Coast Guard defends the Nation as one of
our five armed services, taking full advantage of its unique
and relevant maritime capabilities to support the national
security strategy. Coast Guard units and personnel use
Department of Defense facilities and ranges to maintain
military readiness, and our concerns regarding the ability to
maintain military readiness levels parallel those of the
Department of Defense and some of the oral statements that you
just heard from my DOD cohorts.
We in the Coast Guard have carefully reviewed the proposed
amendments, specifically focusing on our strategic goals of
protection of the natural resources and national defense. These
amendments promote a balance, in our opinion, that ensures the
Nation's military readiness is not compromised, while still
providing adequate protection for marine mammals and endangered
species. The Coast Guard requests that you support the proposed
amendments.
Thank you.
[The prepared statement of Admiral Hathaway follows:]
Statement of Rear Admiral Jeffrey J. Hathaway, Director of Operations
Policy, Department of Homeland Security, U.S. Coast Guard
Good afternoon, Mr. Chairman and distinguished members of the
Committee. It is a pleasure to appear before you today to discuss H.R.
1835, which is still under review by the Administration. As you know
the Administration has recently introduced its own Readiness and Range
Preservation Initiative, which includes some similar provisions to
H.R.1835.
Since one of the Coast Guard's five strategic goals is Protection
of Natural Resources, we take very seriously the provisions of the
Endangered Species Act and the Marine Mammal Protection Act. Not only
does the Coast Guard develop operational guidance and procedures to
ensure our compliance with the acts, we also enforce the regulations
associated with these Acts in conjunction with National Oceanic and
Atmospheric Administration (NOAA) Fisheries and the U.S. Fish and
Wildlife Service.
Many of the Coast Guard's responsibilities require our units to
conduct operations which have the potential to disrupt marine mammal
and endangered species behavior patterns. The Coast Guard frequently
operates in areas where marine mammals or endangered species are
present. When so doing, the Endangered Species Act and the Marine
Mammal Protection Act can come into play because the mere presence of
our ships and aircraft have the potential to disrupt protected species
behavior. Ironically, this includes Coast Guard activities undertaken
to protect marine mammals, protected species and other living marine
resources. Our efforts to enforce fisheries regulations, right whale
approach regulations, Steller sea lion and sea turtle critical habitat
areas, whale watching regulations, harbor porpoise pinger regulations,
and manatee speed zones ensure a rich, diverse sustainable ocean
environment that promotes survivability of protected species.
Beyond law enforcement duties, Coast Guard buoy tenders
occasionally find seals and sea lions hauled out on navigational aids
(buoys) that must be serviced or replaced. By servicing navigational
aids, we protect marine mammal and endangered species habitats from the
impact of potential ship groundings and collisions. However, we also
thereby raise the specter of operating in violation of the Acts. In
addition, responding to non-emergent Search and Rescue and oils spills
place our assets in potential conflict with both Acts.
To ensure that we comply with both the Marine Mammal Protection Act
and the Endangered Species Act while engaged in our day-to-day
operations, we have established specific guidelines and procedures to
ensure our operations mitigate risks to protected species and their
habitats. Examples include relocating training operations away from
protected species habitats, conducting operations such as engine trials
during non-intrusive times of the year, training shipboard lookouts in
marine mammal identification, and operating ships at reduced speeds
when marine mammals are present. Nonetheless, except for emergency
search and rescue operations, none of our operations, including those
that ensure military readiness and those that benefit marine mammal and
endangered species populations are exempt from the Endangered Species
Act and some may not be covered by the provisions under which taking
may be authorized under the Marine Mammal Protection Act.
Our day-to-day operations in the marine environment place us in
situations where we are often the first or best responders to deal with
efforts to assist protected species that may be in distress. In the
specific instances when the Coast Guard is responding to a protected
animal in distress, we either have received permits or have been added
to NOAA Fisheries permits to ensure our compliance with the Acts.
However, the Coast Guard's pursuit of an incidental take
authorization, at least with respect to its operations that could
result in the lethal taking of northern right whales in the North
Atlantic, has been unsuccessful. This is because the National Marine
Fisheries Service has determined that any incidental mortality of this
species cannot be considered to be negligible for purposes of the
Marine Mammal Protection Act and likely would jeopardize the survival
and recovery of the species in violation of section 7 of the Endangered
Species Act. In addition, the permit process is geared for approval of
specific activities that can be identified and assessed well in
advance. Often Coast Guard operations require on the spot decisions--
requesting individual incidental take permits is simply not feasible.
Since the Coast Guard is a multi-mission service, most Coast Guard
activities would not fall under the military readiness exemption of the
amendment. However, there are activities where the Coast Guard shares
similar interests and military readiness concerns with the Department
of Defense. National Defense and Homeland Security are two of our
service's statutorily tasked missions. Coast Guard assets use Coast
Guard and Department of Defense facilities and weapons ranges vital to
our ability to maintain our readiness.
The Coast Guard understands the need for all Federal agencies to
minimize their impact on marine mammals and protected species and notes
that this proposed amendment does not exempt our military partners or
us from this responsibility. Therefore, the Coast Guard supports the
proposed amendments goals of maintaining military readiness while
carefully balancing environmental needs. This critical balance will
ensure that neither our environment nor the nation's military readiness
will be compromised.
Thank you for the opportunity to testify before you today. I will
be happy to answer any questions you may have.
______
The Chairman. Thank you. I thank all of the panel for their
testimony.
I would like to start, if I may, with Major General Bowdon.
We have had an opportunity over the past several years to look
at some of the things that are going on right now at Camp
Pendleton. Your testimony details how the proposed critical
habitat designation for the 18 endangered species will affect
training.
How much of the land area of Camp Pendleton was proposed as
critical habitat? I understand you do have a visual
presentation on that, is that correct?
General Bowdon. That is correct, Mr. Chairman.
The Chairman. If you could share that with the Committee.
The question has arisen that there is no evidence that
currently ESA or the Marine Mammal Protection Act has any
impact in the failure of DOD to show that it has any impact. If
you would share that with us.
General Bowdon. I would be happy to, Mr. Chairman.
[Slide presentation.]
The first slide that you see in front of you is Camp
Pendleton's 125,000 acres, 200 square miles. We are bordered by
San Clemente, Fallbrook and Oceanside. The red hatched area
there is the impact area that we use for training. The black
hatched area is a dud area behind some rifle ranges. It is wide
open space. We occupy about 12,000 of the 125,000 acres in
cantonment and family housing areas.
Next slide, please.
This is the way that we would like to use the base to train
and to maneuver, to train our Marines, sons and daughters of
America, so that they are well-trained as they go forward into
what is known as forward presence and combat operations.
Next slide, please.
The nonmilitary land use at Camp Pendleton is really not an
issue. We have some areas that are a State park, which is
depicted there by the yellow, the San Onofre State Park. There
is also the San Onofre nuclear generating station there. We
have I-5, we have gas lines, rail lines, power lines, and then
the green areas are also some areas where there is some
agricultural activity that goes on there.
All of those areas are, of course, man made and we can
control those to some degree, in terms of diminishing them or
letting them expand. We have control over those.
Next slide, please.
This depicts 28,000 acres that is basically the base-line
that we have today of endangered species. We are the only
activity in Southern California that knows where all of our
endangered species are, and we are counting them and watching
to make sure that they prosper on our reservation. They have
been quantified and that is essentially what it looks like.
What you start to see there, of course, is encroachment upon
the areas that we would like to be maneuvering and training in.
Next slide.
This slide depicts what could happen if we do not clarify
the law and if we do not give some primacy to the military
mission on DOD lands. This would, of course, be worst case,
worst case being that we lose 57 percent of the base, some
70,000 acres, to critical habitat, which is exactly what some
special interest groups would like to see happen. If that
happens, my training mission would be severely inhibited.
Thank you for that question, sir.
[End of slide presentation.]
The Chairman. What you have shared with the Committee are
proposed critical habitat designations, in your term, a worst
case scenario, for the base.
Are there recent court cases that make the worst case
scenario more likely?
General Bowdon. Yes, sir. There is--The Mexican Spotted Owl
case is one of those cases. There are cases in Federal court
where we have lost the judgment to a special interest group.
The Chairman. Where you lost the case?
General Bowdon. Not the Marine Corps. The Forest Service.
The Chairman. Thank you.
Unfortunately, my time has expired. Mr. Rahall.
Mr. Rahall. Thank you, Mr. Chairman.
I'm just wondering if anybody on the panel can respond as
far as the Administration's position goes on H.R. 1835, the
bill introduced by Representative Gallegly.
Mr. Cohen. Sir, my name is Ben Cohen. I'm the Deputy
General Counsel at DOD for Environment and Installations.
With respect to those elements of H.R. 1835 which deal with
military readiness activities, we believe that the bill, with
two relatively minor exceptions with respect to MMPA, provides
the same level of benefit to the Department of Defense as the
Administration proposal.
With respect to those elements that don't deal with
military readiness activities, we would defer to the Department
of Interior.
Mr. Rahall. So, if I heard that response correctly, in
regard to those elements that go beyond and apply to all
agencies, you are not necessarily endorsing it?
Mr. Cohen. Sir, as the Defense Department, we would need to
defer to the Department of Interior on that issue, as it's
within their jurisdiction.
Mr. Rahall. The Administration had a draft of this bill
before it was introduced. Did the members of this panel have a
draft of it as well?
Mr. Cohen. Sir, yes, we did.
Mr. Rahall. And you know it's scheduled for markup
tomorrow?
Mr. Cohen. Yes, sir.
Mr. Rahall. You know, it seems to me that what this panel--
and I would appreciate any members comment on it--what this
panel is requesting does not go as far as what the pending
legislation would do, H.R. 1835. And while I am not endorsing
what this panel is recommending, it would appear that it is
more reasonable in comparison with--I stress in comparison
with--H.R. 1835.
Would anybody wish to comment on that statement?
Mr. Cohen. Sir, it's correct that the Department of Defense
did not propose some of the changes which are included in H.R.
1835, in that changes which we were proposing dealt only with
military readiness activities, and the Committee has chosen to
address other issues that are within the jurisdiction of this
Committee and the Department of Interior.
Mr. Rahall. Is it your understanding that, if H.R. 1835
were to pass, would it be effective retroactively or
proactively?
Mr. Cohen. Sir, I think with respect to the military
readiness provisions of the MMPA and ESA, it would be
effective, principally, prospectively, on a going-forward
basis.
Mr. Rahall. From date of enactment?
Mr. Cohen. Yes, sir.
Mr. Rahall. Mr. Chairman, I yield back the balance of my
time.
The Chairman. I don't believe that our mikes are working
right now.
[Proceedings suspended.]
The Chairman. It's working now.
I will recognize Mr. Gilchrest, the Chairman of the
Subcommittee, for his questions.
Mr. Gilchrest. I thank the Chairman.
Gentlemen, I think there's no question that military
facilities must train those soldiers and airmen and seamen to
the best level absolutely possible. When I was in the Marine
Corps almost 40 years ago, in the 1960's, we trained
aggressively at LeJeune, at the infamous Vieques, Camp
Pendleton, any one of a number of other places.
In those days, there was no ESA. In those days, there were
no ``smart bombs''. When we got to Viet Nam, we knew what we
were doing because of the training, and we were able to react
under a myriad of difficult circumstances. So, essentially,
that needs to be done today.
Today we have ``smart bombs'', and we have ESA, and we've
become a lot more sophisticated. I think what we must do is
learn how to understand the relationship between living things
and their environment and how we train young people to engage
in combat and come home. I think we can do that.
I think the INRMP concept is one of those concepts that is
essential, that can actually work, that you can set aside areas
on these facilities where there will be habitat for the living
resources, and you can set aside areas where there is going to
be training, in the same way that we homes for humans, farms
for humans, shopping plazas for humans, and we have areas
around the country that we're losing that we need to expand
that we have habitat for wildlife. So I think we're moving in a
direction that we need to move in.
Mr. Chairman, I'm going to offer some amendments tomorrow
that I think will refine some of the language in H.R. 1835 so
that we can accommodate, in a much better fashion, all those
things.
General Fil, you said we needed to balance ESA and military
training. On page 2, lines 6 and 7 of 1835, it says by
inserting after ``threatened species'' the following: ``insofar
as is practicable and consistent with their primary purposes''.
This deals with do we comply with ESA, or is it only complying
with ESA when it's ``practicable and consistent with their
primary purpose.''
Do you think that gives the right level of balance between
military training and the Endangered Species Act, adding to the
policies regarding the Federal departments and agencies section
and so on of the Endangered Species Act by inserting, after
``threatened species'', the following, will preserve threatened
and endangered species ``insofar as is practicable and
consistent with their primary purposes'', which is training?
Is that a balance, in your judgment, to training and ESA?
General Fil. Sir, I must admit that I'm an Army officer and
not an attorney, so I couldn't speak to whether that language
is appropriate or not.
May I defer to Mr. Cohen, please.
Mr. Gilchrest. Yes.
Mr. Cohen. Thanks, General.
Sir, that was language that again was not actually
requested by the Department of Defense. It goes to matters that
are broader than national security issues and military
readiness, so we defer on that to the Department of Interior.
Mr. Gilchrest. OK.
Admiral Moeller, a similar question--and maybe we're going
to refer to DOD legal counsel here as well. In the bill, on
page 4, lines 7 and 8, this generally is dealing with
harassment of marine mammals. It is basically with level two
harassment. It deals with ``any act that disturbs or is likely
to disturb a marine mammal or marine mammal stock in the
wild...''
It goes on to say, ``...surfacing, nursing, breeding,
feeding, or sheltering, to a point where such behavioral
patterns are abandoned or significantly altered.'' That's the
language in the bill.
The language from the Natural Research Council is ``...to a
point where such behavioral patterns are abandoned or a
meaningful disruption of biological activities are
significantly altered.'' Instead of just saying ``significantly
altered'', the Natural Research Council has ``a meaningful
disruption of biological activities are significantly
altered.''
I know we're getting into some arcane language at this
point, but I think those are two examples of what I would like
to amend tomorrow, Mr. Chairman, which I think goes to the
heart of what DOD needs to do and what we saw over here at Camp
Pendleton. We can refine an understanding of the relationship
between living things and their environment and how to protect
that, with the concept of INRMP in mind, not that you're going
to protect every square inch of this ocean or every square inch
of this military base, but you set aside certain areas that you
know you're going to preserve for critical habitat, but in
those areas there's a more refined understanding of how to do
that.
I realize my time is up. Thank you.
The Chairman. I thank the gentleman. He is a valued member
of the Committee and I will work with him in terms of what his
concerns are. As you are well aware, we have worked for several
weeks struggling with these issues, so I will continue to work
with him.
Mr. Gilchrest. Thank you.
The Chairman. Mr. Kildee.
Mr. Kildee. Thank you, Mr. Chairman.
To the Deputy General Counsel, why is the national security
exemption to environmental laws not sufficient to enable the
military to carry out its mission? Has the Secretary of Defense
ever sought an exemption under section 7(j) of the Endangered
Species Act, or ever invoked his authority under Public Law
105-85, to suspend any administrative rule or regulation that
would ``have a significant adverse effect upon the military
readiness of any of the armed forces?''
I know Donald Rumsfeld very well. He is not very bashful in
using his authority. Has he ever used that authority to exempt
the military from even ESA sections or the Marine Mammal
Protection Act?
Mr. Cohen. Sir, the Defense Department has never invoked
section 7(j) of the Endangered Species Act, and it has never
used section 2014, the provision that you were referring to in
title X, allowing for suspension for up to 5 days of
administrative action.
To your broader question, why those exemptions or others in
our environmental laws aren't sufficient to protect the
national security, several of the relevant statutes, including
the Migratory Bird Treaty Act, which Congress visited last
year, and the Marine Mammal Protection Act, do not have any
national security exemption, even for wartime.
The provision in section 2014, which is often cited as
something that's cross-cutting and would enable us to effect
the application of those statutes, would permit the Department
of Defense to suspend for, at most, 5 days the action of
another administrative agency. So, sir, a 5-day suspension of
another agency's action would provide us with very little
relief.
This is particularly the case since environmental
regulators, Federal and State, have not been a principal source
of problems for us. To take the SURTASS LFA case, for example,
we received the administrative action that we requested from
the Department of Commerce. They granted us a letter of
authorization to take this critical system to sea. But we were
then sued on that and enjoined. That section, 2014, doesn't
apply to court action.
Finally, to answer your question about section 7(j) of the
Endangered Species Act, and then, more broadly, the
environmental laws more generally and our means of proceeding
by exemption, section 7(j) comes as part of the process of the
Endangered Species Committee. It is clearly designed to be
site-specific and to deal with a particular set of activities.
The Department of Defense and successive administrations,
historically have been extremely reluctant to invoke the
Endangered Species Committee, for obvious reasons, and always
sought to try to find ways to address these problems through
regulation or by adjusting the statute, which is what we're
doing now, rather than actually invoking the exemption.
This is a point that goes more broadly to the whole Defense
Department package, sir. We don't want to be exempt from
environmental laws. What we would like to do is adjust the
environmental laws, the underlying statutory authorities
themselves, in such a way that we can, at one and the same
time, fulfill our national security mission and protect the
environment, rather than invoking the hammer of section 7(j),
which would sweep away all the protections of the Act.
Mr. Kildee. Well, the hammer, you know, need not be brought
down with full force with the exemption. The Secretary of
Defense is given discretion within that exemption. We don't say
you must use a sledge hammer. You're a lawyer and you know
that, within an exemption, you can use it to a degree or use it
fully. Mr. Rumsfeld is fully capable, intellectually, of seeing
how much of that exemption might be required.
Mr. Cohen. Yes, sir. But in this instance, because we have
an existing policy adopted during the last administration which
enables us to actually protect the environment and manage our
installations for national security, it hasn't been necessary
for us to go that route, and we're hoping to shore up that
policy.
Mr. Kildee. I would hope, generally, we would try to use
existing law rather than change the law. These laws have come
up, hopefully, through the combined wisdom of many, many
Congresses, and some of these laws were enacted before I came
here 27 years ago. But I do think you should explore what
authority and how much discretion the Secretary can use within
that authority to achieve what is needed.
You know, we're not just ``tree-huggers'' up here. I have
two sons who are captains in the Army. We're all very much
concerned about the training of our military. But I do think
that further exploration of what power already exists might be
helpful.
Mr. Abercrombie. Will the gentleman yield?
Mr. Kildee. I would be happy to yield to the gentleman from
Hawaii.
Mr. Abercrombie. Mr. Cohen, are you familiar with the
memorandum for Secretaries of the military departments from the
Chairman of the Joint Chiefs of Staff, Under Secretaries of
Defense and Service Chiefs, on the subject of ``senior
readiness oversight counsel approval of the 2003 sustainable
ranges action agenda''?
Mr. Cohen. Yes, sir, I believe so.
Mr. Abercrombie. OK. Under the exemptions in ESA
compliance, are you familiar with page 9, which discusses the
failure of the Department of Defense to ever utilize the
exemption capacity that it has, as Mr. Kildee discussed?
Mr. Cohen. Sir, I can't recall the specific passage you're
referring to.
Mr. Abercrombie. I'm not trying to trap you, believe me.
The gist of it I can summarize from the passage itself.
What the previous paragraph simply says, Mr. Chairman, is,
to date, the DOD has not used such exemptions to any extent to
address encroachment concerns. Congress and many environmental
organizations criticized the Department for not pursuing these
avenues of relief already available to them, instead of
pursuing new legislation. It goes on to say--and I'm quoting--
``A draft memorandum has been developed and coordinated within
the IPT that would provide guidance to the services on how to
assess and process exemption requests in appropriate
situations. This memo is attached, along with a briefing
package, for review.''
Wouldn't it make sense for the services to try to use
existing law, and if it runs into difficulties in specific
situations, then seek relief on that basis, rather than, before
you even try what is readily available to you now, come in and
ask for a complete change in the basis of the existing
legislation?
Mr. Cohen. Sir, we actually believe that the proposals that
we're bringing forward are consistent with the correct
interpretation of the laws we're seeking to clarify. For
example, most of the reforms that we're suggesting, many of the
reforms we're suggesting to MMPA, simply would codify
interpretations that the regulatory agency has already brought
forward.
Mr. Abercrombie. Excuse me--
The Chairman. The gentleman's time has expired.
Mr. Abercrombie. OK. Thank you, Mr. Chairman. I'm going to
pursue that later, then. Thank you.
The Chairman. Mr. Gibbons.
Mr. Gibbons. Thank you very much, Mr. Chairman.
Gentlemen, to each of you, I want to thank you for your
effort to work and defend our Nation. From a very proud
constituent of all of yours, I want to thank you for your
effort.
This is an issue which, of course, affects many of us on
this Committee because many of us have districts which have
large military installations. I, for one, have several which
are affected by the Endangered Species Act, whether it's Nellis
Air Force Base, Fallon Naval Air Station, or any of the others
that have provided a great deal of training for our young men
and women around this country.
I do know that during Operation Enduring Freedom there were
opportunities to test, on a rather short notice basis, some of
the new technologies and weapons systems that were used to
successfully conclude those conflicts.
My question would be--and I guess I would go to Colonel
DiGiovanni in asking this question--whether or not the
designation of critical habitat versus an Integrated Natural
Resource Management Plan area would have an impact, a serious
impact, a negative impact, on training for any ongoing
operation, if you could compare and contrast the designation of
a critical habitat for an endangered species versus the
Integrated Natural Resource Management Plan.
Colonel DiGiovanni. OK, sir. I'll briefly address some of
the issues to the best of my knowledge.
When something is designated as critical habitat, the
primacy for the use of that land becomes the survival of the
species, we think, under an Integrated Natural Resource
Management Plan, you can better balance military needs with the
needs of the community and the environment.
We also think that when you designate critical habitat,
you're focusing on a specific species, whereas if you use an
Integrated Natural Resource Management Plan, then you can
approach it in a more holistic manner and look at the entire
ecosystem in which you're trying to balance the two competing
needs.
Any other issues I would like to defer to Mr. Cohen for
further clarification.
Mr. Gibbons. If we're going to turn to Mr. Cohen, let me
add to this question because, Mr. Cohen, you're the legal
expert here. When you talk about flexibility and the difference
between critical habitat versus an Integrated Natural Resource
Management Plan, it seems to be one of process over restriction
and inflexibility.
My concern here is there are going to be critics out there,
well-meant, well-meaning critics, who are going to say that,
unless there's some designation, clearly, of some abuse of
discretion, whether it's an arbitrary or capricious decision,
that no one is going to want to intercede in any of these
current existing laws that establish critical habitat and
designated Endangered Species Act, but that gives the military
no flexibility when it comes to challenging these issues.
I would like to ask you if you think there is greater
capability of both preserving the species as well as allowing
for training of our men and women in the military when you have
an Integrated Natural Resource Management Plan--I just throw
that out there--versus something designated as a critical
habitat. Could you address that issue?
Mr. Cohen. Yes, sir. Thanks very much.
In the first instance, we do believe that the INRMP is a
superior tool because it does enable us to manage the entire
ecosystem on a holistic basis. We think it's a more modern and
more science-based tool than the critical habitat device that
was developed decades ago. We think that this ecosystem
management is what gives us the flexibility to, at one and the
same time, promote our military mission and also protect
species.
We don't think this is an instance of some sort of tragic
tradeoff between national security and environment. We can do
both those jobs, sir, if we're given the appropriate
flexibility in the statute. We feel that critical habitat is
not the appropriate regulatory framework because it doesn't
enable us to do both jobs.
Mr. Gibbons. So it would be true that it would require, if
you were to take it to a judicial decision, it would require
you, if it's critical habitat, to have an arbitrary, capricious
decision, or an abuse of discretion would be the only way to
unwind or to lessen the impact of critical habitat on the
military operation?
Mr. Cohen. Well, actually, sir, because we're another
Federal agency, we don't have the ability to challenge actions
of the Interior Department in court, nor have we ever had the
need to, in terms of working through critical habitat issues,
because the Interior Department has tried to accommodate
national security, wherever possible. In fact, their policy of
using INRMPs in lieu of critical habitat designation is the
policy that was developed in the last administration to
accommodate these two interests.
The problem comes, sir, with outside litigants, private
parties and nongovernmental organizations, who are trying to
strike down the action taken by the Interior Department to
accommodate national security.
The Chairman. Mr. Pallone. If you want me to skip you, I'll
go to Mrs. Christensen.
Mrs. Christensen. Thank you very much, Mr. Chairman.
Has the Navy ever been denied a request for incidental
harassment authorization under the MMPA?
Admiral Moeller. The issue for us has been one of, as we go
forward for the kinds of things that we need to address in the
future from a test and training standpoint, the detailed, very
elaborate and complex process to be able to conduct training
activities in a manner consistent when they are appropriate for
us from a scheduling standpoint to do so. So as has been
discussed here today, what we're trying to accomplish here is
to put in place mechanisms that will allow us enhanced
flexibility to be able to kind of do the things that are very,
very important from a national security standpoint.
Mrs. Christensen. This question I guess I would refer to
anyone on the panel. I'm having difficulty reconciling this
request with recent statements that I really support. I'm
really proud of the performance of our troops in Iraq and
Afghanistan, wherever they have been sent.
The General Accounting Office, for example, found that
training readiness remains high at our military institutions,
and even the Secretary was quoted as saying our troops were, as
I agree they are, the best trained, best equipped and finest
troops on the face of the Earth. So I'm trying to reconcile
these kind of statements with the support of the military for
this piece of legislation.
Can someone help me out with that? Haven't, in fact, the
remedies and the flexibilities that are already in place been
enough to allow our military to be properly trained and to
receive the kind of accolades that I quoted?
General Fil. Yes, ma'am. Thank you, if I might attempt an
answer to that.
Well, I think there is no doubt that our troops are,
indeed, the best in the world. It's a tribute to hard work,
dedication, and leadership from four stars all the way down to
seamen and airmen and privates, in all the services, and also a
tribute to Congress for funding us to make us the greatest
armed force in the world.
But our recent fight against the Iraqis is not necessarily
the same kind of fight that we're likely to have in the future.
We need to prepare to defend the Nation against any possible
potential threat, existing or emerging. That causes us to want
to make sure that our training facilities are, indeed, the best
as we can possibly make them.
I can speak for the National Training Center in regards to
the second half of your question, ma'am. That is, because of
critical habitat designation, we have lost a very large portion
of our training area, cutting off one entire maneuver area. We
have a portion of the facility that congressionally has been
given to us, set aside, if you will, of 110,000 acres. Much of
that is designated critical habitat. In fact, there are no
tortoises living there and never will be. It 's not suitable
for habitation for this particular species of Desert Tortoise.
So what we seek is the ability to continue to work very
closely with our colleagues and the Fish and Wildlife Service
to do both things--protect the species and yet make the best
use of this land for training for the forces of today and the
future.
Mrs. Christensen. I guess, with somewhere in the vicinity
of 25 million acres of land that the military has, it still
becomes a concern?
General Fil. I can only speak to the 740-750,000 acres that
we're training on at the National Training Center. But yes,
ma'am, it is indeed a concern.
Mrs. Christensen. I'm not on any of armed forces
Committees, but it's my understanding that the type of training
and the type of combat that might occur in the future will be
different from what we're experiencing now.
Has that been taken into account, the type of training that
will be needed for future conflicts? Has that been taken into
account in your support of this legislation? Is this
legislation still needed in light of the different kinds of
combat that our troops will be facing?
General Fil. Yes, ma'am. If I could just answer that and
then I'll pass it to my colleagues.
Ma'am, indeed, we look to the future. We are presently
looking 25 to 30 years out and developing the requirements that
we believe for the National Training Center, and the
collaborative effort that we have with our other facilities
from the other services in Southern California and Nevada, we
believe that, in fact, these two initiatives are very much in
parallel.
The Chairman. The gentlelady's time has expired.
Mr. Jones.
Mr. Jones. Mr. Chairman, thank you.
I want to first say that I appreciate you and this
Committee, whether we agree on all the issues or not, for
holding this hearing. I think last year we had a similar bill
and also a hearing that was very important.
I have three bases in my district: Camp LeJeune, Cherry
Point Marine Air Station, and Seymour Johnson Air Force Base. A
multitude of the issues that have been discussed today by you
gentlemen, as well as the Committee, we've been discussing for
9 years down in the 3rd District of North Carolina.
My question is really probably for Mr. Cohen. I want to go
back to what the gentleman from Hawaii was asking you earlier,
when he was saying that you had certain authority. I believe
your response was that ``we need clarification''. My reason for
bringing his question back up is this: you talk about how you
and Fish and Wildlife are working together to see if you're
following the law, the Endangered Species Act, and if you can
train in this area, train in that area.
What has been the cost to the Department of Defense over
the last few years as it relates to litigation, as to the area
of training?
Mr. Cohen. Sir, I think I had better take that for the
record, if I could. I don't know whether we have that number
aggregated. It would clearly involve costs imposed on our
regulators as well, because it is their decisions that are
frequently challenged in court, and on the Department of
Justice, which represents us in court. So it would be across a
number of agencies. Certainly, a lot of the litigation has been
very extensive and expensive.
Mr. Jones. Mr. Chairman, with your permission, I would like
to have that information for the record, the best that could be
provided, so that the Committee would have that.
The Chairman. Yes, if the gentleman will provide that for
the record. I realize you probably have to work with DOJ to
come up with an answer, but if you could provide that for the
record.
[the information submitted for the record by Mr. Cohen
follows:]
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Mr. Cohen. Yes, sir.
Mr. Jones. Mr. Chairman, just a couple of other statements.
I'm not going to ask any other questions.
I appreciate General Bowdon sharing with the Committee what
you did. I wish Mr. Pallone and all of us who were not here
could see that again.
Would you mind going through that screen one more time so
that the members on that side, that just came in, could see
them. The reason I do that is because there is going to be a
major debate tomorrow or the next day, and I think the better
informed we are, whether we agree or disagree, is extremely
helpful. Would you please point that out again, because some
members have just come in, your problems at Camp Pendleton?
[Slide Presentation.]
General Bowdon. Thank you, sir. I would be happy to.
This is Camp Pendleton, 125,000 acres, contains an impact
area there in red. Of course, we are bordered by several
different communities there in Southern California.
Next slide, please.
This is how we would like to train. Those big red arrows
are essentially maneuver areas, places where we would like to
maneuver our troops in order to train them to be the best they
can be.
Next slide.
Those areas that just popped up, the yellow, the green,
are, of course, areas that are man-made areas. It's Interstate
5, the San Onofre State Park. It's the San Onofre nuclear
generating plant, and also some agricultural areas that predate
the base's 60-year history. They are areas that we can control
the future of, to make them larger or to diminish in some
degree, if we had to, or to keep them as is.
Next slide.
This is the baseline. We are currently constrained and
degraded to some small degree, 30 percent--that's really not a
small degree--but to a 30 percent degree with our training. We
know where all of our endangered species are. We have a program
that tracks them. They use about 28,000 acres on our base.
You can see how now those red arrows that we use to train
in are starting to become incumbered. That is status quo. That
is where we are today. We have quantified the degradation to
our training through a quantification study, recently
completed, that indicates that we are able to meet our training
standard at the 68 percentile degree.
Next slide.
This is what could happen to us if we do not get
clarification in the law and primacy of our mission. This would
indicate 70,000 acres, 57 percent of the base, would come under
critical habitat. You can see that we would be so constrained
that we would be able to only do a very small part of our
training activity.
We need to be able to train our Marines and sailors as they
go off to do the bidding for our country. They are our sons and
daughters of America and we owe them the best training that we
can give them. So we need to be very careful that the training
that we have today is preserved.
Thank you.
Mr. Jones. Thank you, Mr. Chairman.
The Chairman. Thank you.
Mr. Pallone.
Mr. Pallone. Because you had Pendleton up there--and I'm
glad that Mr. Jones showed me that--I just wanted to use as an
example one of the concerns I have, General.
Rather than showing the systematic conflict between
military readiness and the implementation ESA, evidence of
problems presented thus far appears to be to be mostly a few
anecdotes--in other words, some specific anecdotes. But when
the full situation is examined at the specific bases, like
Pendleton, it appears the DOD is telling only part of the story
and the supposed conflict either does not exist or is not as
bad as it would appear based on the DOD assertions.
Just as an example, the DOD stated that proposed critical
habitat designations threaten to encumber--I guess it's 37 or
57 percent of Camp Pendleton. However, after the military
consulted with the Fish and Wildlife Service, the total acres
of designated critical habitat on Camp Pendleton is 3.7 percent
of the base's total land area, of which only 1.5 percent is on
the base and actively used by the military, and about 2.2
percent is on the lands leased to California State Parks. There
are other examples.
But since we just had the map there about Camp Pendleton,
in the interest of time, I just wanted to ask how can you
explain those discrepancies in these numbers at Camp Pendleton,
because that's the type of thing I'm concerned about.
General Bowdon. Yes, sir. Thank you for that question.
The statement you have made is, in fact, true. We do not
have a large critical habitat designation on Camp Pendleton as
it exists today. However, there are those who are--We are being
sued in Southern California every time we turn around. There
are those special interest groups, and there are many, who
would like to sue us to ensure that that critical habitat
designation is, in fact, enforced on Camp Pendleton.
What I need is for you, Congress, to clarify the law and to
quantify the law and give us primacy of our mission, so that
they can't come to the courts and say it is not clear what
priority the Marine Corps or any other service has in their
mission, as opposed to the Endangered Species Act.
So that's what I want to go home with, that clarity of the
law, so that I am not regulated by litigation in the courts by
special interest groups, who would try to force that 57 percent
of the base to become a critical habitat designation.
Mr. Pallone. Well, when we had a hearing the other day in
our Fisheries Subcommittee on INRMPs, in the context of other
legislation, we talked about INRMPs instead of the designation
of critical habitat. From what I understand, there is nothing
to prevent the Secretary from basically designating an INRMP
instead of designating critical habitat.
So why is that a problem? The court cases don't preclude
you from doing that in any way, do they?
General Bowdon. I would like to refer to Mr. Cohen.
Mr. Cohen. Sir, the question is whether those decisions by
the Secretary will be struck down. The Secretary has already
made that decision at Camp Pendleton and at Miramar, and is
preparing to make it again. But that decision will be
challenged. There is ongoing litigation, as General Bowdon
said.
We are not asking for this decision to be placed beyond the
reach of any sort of judicial review. What we are trying to say
is let's vindicate the policy of the last administration that
allows the Department of Interior, on a case-by-case basis, to
decide whether our INRMP is good enough to serve in lieu of
critical habitat. If we propose an INRMP that's insufficient,
the Secretary has the authority to refuse and to go ahead and
designate critical habitat. If the Secretary makes a mistaken
decision and accepts an INRMP that's inadequate, that decision
can be challenged on a case-by-case basis.
What the litigants in California are saying today, sir, is
that no INRMP, no matter how good it is, can ever substitute
for critical habitat. That would overturn the decision of the
last administration and their policy and the policy of this
administration as well. We would simply like to give the
Department of Interior that degree of flexibility.
Mr. Pallone. It is not my understanding--and I don't want
to continue this forever, Mr. Chairman--but it's not my
understanding that there's any challenge to the INRMPs as an
option. You seem to feel that that could be challenged as well,
but no one has so far challenged the INRMPs option.
Mr. Cohen. Sir, if I could, actually it's been--I believe
one of the litigants, the Natural Resources Defense Council,
has already argued in briefs in California, that the policy is
illegal.
Mr. Pallone. OK. Again, it doesn't apply--they haven't
challenged section 4(b)(2) of the Endangered Species Act,
though. They haven't challenged that aspect.
Mr. Cohen. Actually, sir, I believe they are challenging
the decision made under 4(b)(2) as well, sir.
Mr. Pallone. Could you provide me with that information,
because I would like to know if, in fact, that is the case.
Mr. Cohen. Yes, sir. I would be happy to.
Mr. Pallone. Thank you, Mr. Chairman.
The Chairman. Mr. Osborne.
Mr. Osborne. Thank you, Mr. Chairman. Thank you, gentlemen,
for being here today. I thank you for what you do.
I would like to address my comment to General Fil. It's my
understanding that at Fort Irwin the Desert Tortoise has been
an issue, and the Desert Tortoise is listed as threatened, not
endangered. But as I understand it, when a soldier or a
training exercise encounters a Desert Tortoise, you've had
training cease in that area; is that correct, according to your
testimony?
General Fil. Sir, thank you for the question.
Yes, indeed. When we encounter a Desert Tortoise anywhere
in the maneuver area, or in the cantonment area, we stop, we
guard it, and we call in one of our environmental experts, a
biologist, and if it can be removed, to be removed to a safe
place. Although that only happens occasionally, because we're
avoiding the areas where the Desert Tortoise is normally found,
when it does happen, it does stop training in that area.
Mr. Osborne. Also, your testimony indicates that whenever a
Desert Tortoise urinates, that you have to provide shade and
then call in some specialist; is that correct?
General Fil. Sir, yes. When frightened, they will void
their bladder. That makes them vulnerable during their
hibernation period because they're insufficiently hydrated. So
we do bring in a biologist and they'll normally give them
whatever is required to rehydrate them and then set them free.
Mr. Osborne. I also see that apparently at one time you
created a tortoise reserve, is that right, where you restricted
certain activities where the tortoise was to be found?
General Fil. Sir, yes that's true. We took a line that goes
along the nine zero east-west grid line, if you will, and all
that is south of that we made off limits to any maneuver. That
has since been designated as critical habitat.
In part of that area we have also developed a hatchery for
tortoises. We're having really a great deal of success down
there.
Mr. Osborne. The reason for my questions was it's my
understanding you had taken some pretty extreme, and maybe even
heroic measures, to protect the tortoise. Apparently Fish and
Wildlife still declared it critical habitat, even in spite of
all your efforts.
I guess my question to you is, do you feel that you could
have coexisted with the tortoise and done some training in the
area and still preserve the species without the critical
habitat designation?
General Fil. Sir, thank you. We do think that we can
coexist with the tortoise. That's why we believe that our
Integrated Natural Resources Management Plan is the right
answer for this, because it addresses military training and
also the needs of the Desert Tortoise.
Mr. Osborne. Again, referring to your testimony, I guess
you lost 22,000 acres of training area with the designation
critical habitat.
General Fil. Sir, yes, and in fact, it's much beyond that
now. Much of the land that was recently withdrawn so that it
could be added to the National Training Center's maneuver area
is also designated critical habitat for the Desert Tortoise,
even though much of that, in fact, doesn't have any tortoises
in it, and probably never will. It's unsuitable.
Mr. Osborne. I'm not totally familiar with the dialog that
occurs in creating critical habitat, but did you feel Fish and
Wildlife adequately counted the number of tortoises present,
that there was an interface with them in which there was some
possibility that critical habitat designation could have been
averted?
General Fil. Sir, I would say that we worked very closely
with Fish and Wildlife. They are commenting and working
collaboratively with us on our Integrated Natural Resources
Management Plan. We believe that that is the right answer.
I will also say that we're learning more and more about the
Desert Tortoise every day, and we made the study of this
species one of our priorities, to find out more and more about
it.
Mr. Osborne. OK. Thank you very much.
General Fil. Thank you, sir.
Mr. Osborne. I yield back.
The Chairman. Mr. Faleomavaega, did you have questions?
Mr. Faleomavaega. Thank you, Mr. Chairman. I apologize for
not being here earlier and listening to the testimonies of our
distinguished panel members. I do have a couple of questions I
wanted to ask the panel with reference to the proposed bill,
H.R. 1835.
As I was listening to the dialog here, it seems that my
reading of the bill is that it provides a blanket exemption,
giving the Secretary of Defense that exemption authority
versus, if I hear what Mr. Cohen said earlier on a case-by-case
basis, in determining what would really be a better option to
consider and how we could establish a balance between the
environment and the needs for our national defense.
I would want to hear from members of the panel, if I'm
misreading the proposed bill here. By giving the Secretary of
Defense a blank check, giving him discretionary authority to
say, if it's in national defense and Desert turtles should go
out the window, so be it. Or should we take each area of the
region where we have Defense resources, where we need to
provide the best training possible for our military men and
women in uniform, or could the better option be on a case-by-
case basis, as I understand Mr. Cohen may have suggested. I
don't know if I'm hearing it wrong.
Mr. Cohen. Sir, maybe I should take the first crack at the
answer.
If I understand your question correctly, about H.R. 1835
and endangered species, the language that the Committee has
proposed that is in the bill is actually rather close to the
language that the House passed last year. It does actually
provide a case-by-case decision for the Secretary of Interior
when she decides--the relevant language is at page 2, line 25,
``...if the Secretary determines that such plan addresses
special management considerations or protection. In other
words, if the Secretary decides that it doesn't, that it isn't
sufficiently protective, then she will go ahead and designate
critical habitat. If she decides that it is, then she will not.
And those decisions would be judicially reviewable.
But one thing that would be taken away from the plaintiffs
is this across-the-board argument that no INRMP, no matter how
good it is, can ever substitute for critical habitat.
Mr. Faleomavaega. And the same authority also is taken for
the Secretary of Defense, on page 4 of the bill--Do I have the
same bill as you? Is that the same understanding also, that the
Secretary of Defense is also given similar authority to--
Mr. Cohen. Sir, on that one, the exemption authority for
the Marine Mammal Protection Act--
Mr. Faleomavaega. Yes.
Mr. Cohen. --that is an authority vested in the Secretary
of Defense, and that language, I believe, tracks what the
Defense Department proposed.
Again, we believe that the Marine Mammal Protection Act,
like all the environmental statutes, should have an emergency
exemption for particularly drastic circumstances. But we don't
think it should be the way in which we address everyday,
widespread, ongoing military test and training activities. The
analogy we like to use is to a car. Every car ought to have an
emergency road repair kit, but if that's the only way you get
to work every morning, there is something wrong with your car.
So we do support an exemption for MMPA.
But, sir, please let me leave no doubt that the Department
does not want to have to proceed with its military readiness
activities by virtue of an endless succession of Presidential
or Secretary of Defense exemptions.
Mr. Faleomavaega. One of the ironies, for example, is that
I know all of our military aircraft are exempted from using
noise kits. If that doesn't create a hazard as far as sounds
and everything, the military doesn't have to use noise kits. I
understand it's in the name of national defense and national
security and they don't have to be subjected to that.
The situation we've had to deal with in Vieques, the
situation we had to deal with in Koholami, the situation where,
as you have suggested earlier, the military is now filled with
lawsuits, does this seem to give an indication that the current
law, as it states, is badly written? Would you offer better
recommendations on how we can improve the law to lessen the
number of lawsuits that you're constantly being subjected to?
Mr. Cohen. Sir, we think that the language that we brought
forward, in fact, would clarify and confirm the existing
interpretation of the law. To that extent, it would limit the
lawsuits.
But I think it does raise a very significant point, which
is, although the Defense Department is sometimes described in
this proposal as being on the offensive, or trying to radically
change the existing regulatory structure, actually each of the
proposals that we put forward reaffirms and stabilizes existing
regulatory policies, some of them dating from the previous
administration, others dating back decades.
It's the litigants attacking those policies in court who
seek to change the regulatory policy of those administrations,
and to impose new and sweeping regulation on military readiness
activity.
Mr. Faleomavaega. My time is up. Thank you, Mr. Chairman.
The Chairman. Mr. Cole.
Mr. Cole. Thank you very much, Mr. Chairman.
Gentlemen, thank you very much, frankly, for your
distinguished service to your country. It's a privilege to have
you here.
Let me ask a few general questions, and if I have time, I
have a couple of specific things I would like to inquire about.
This may be a somewhat unusual observation, but I must tell
you, in listening to all your testimony and knowing that you
are not trained in dealing with endangered species, that your
profession is obviously of a military nature, I am
extraordinarily impressed by the degree of knowledge that you
individually have about what goes on in the respective
facilities that you're responsible for.
Would you compare the level of knowledge that you have in
these areas with what you see in the private sector? Do you
think you spend a lot of your time focused on these issues?
Let's start with anybody who cares to answer.
General Bowdon. Sir, I will try to talk to that.
We do spend a lot of time focused on these encroachment
issues because they're vital to our training. I would point
out, though, that at Camp Pendleton, where we are compared to
any other municipality, wastewater, clean air, any other
regulation, we are treated the same way and we would expect to
be treated the same way. However, military training in those
types of activities is different from those other types of
entities, and we are unique in that. We require special
attention for that.
Mr. Cole. Would anybody else care to answer that or address
that?
General Fil. Sir, thank you very much.
I do not know how much time my civilian colleagues are
spending on environmental issues, but I will say that, at the
National Training Center, we are absolutely serious about this.
We want to be strictly within the provisions of all of the laws
that apply. We, likewise, are held to the same standard in many
ways, as far as the city of Fort Irwin goes, if you will, as
anywhere else in the Nation, and likewise for air quality. We
have a good record. We've had many awards given to us and we're
very proud of that. But we also do believe very firmly that we
must work out a way to accommodate both the military needs and
to accommodate the environmental protection requirements.
Mr. Cole. General, is it fair to say that you're going to
find yourself, obviously, on many occasions deployed into
rugged, wild areas, to areas that are, if you will, relatively
undisturbed by human beings, or you may find yourself deployed
into such situations, and isn't it in your interest to maintain
an environment for your training that is similar to ones you
might find yourself in in combat?
General Fil. Sir, thank you. We do, indeed, sir, and we
want it to be that way 25, 50, 75 years from now as well.
Mr. Cole. Are any of your gentlemen at all aware of any
species, endangered species, that have been seriously impacted
by military training to the point that it has really threatened
their long-term survival, or the loss of a particular species?
I ask you this because I asked on the Armed Services Committee,
to be fair, the Fish and Wildlife people who testified before
us that same question, and they couldn't come up with any,
either. Actually, they gave you a high recommendation for the
working relationship they had with each branch of the military,
so you clearly have done a good job.
Let me ask you this question, if I may. Admiral Moeller,
did you testify, if I recall correct, a little bit about the
LFA sonar system and some of your needs in that regard?
Admiral Moeller. Thank you very much, sir.
Did you say, did I testify to that?
Mr. Cole. Yeah. Wasn't there some testimony to that effect?
Admiral Moeller. Yes, sir, I did.
Mr. Cole. If I remember correctly, during your testimony
you mentioned that you were testing--it was not just the
training, but how well the system actually works and what
obstacles you might deal with. If that's the case, was some of
your testing relating to how the system might impact marine and
mammal life?
Admiral Moeller. Sir, as we go through our testing process,
clearly that is one of the considerations that we need to take
careful stock of. The testing that we are in fact doing right
now, of course, is cognizant of that kind of concern, such that
we have a good appreciation for exactly what it is that we're
doing. That testing is certainly very critical to understanding
exactly then how we would operationally employ the system at
that point in time.
Mr. Cole. So is it fair to say then that a great deal of
what you do is actually--clearly, your objective is to fight
and win and protect the people under your commend, but also to
have some awareness of what the impact of your activity is on
the world around you, and you need some freedom and flexibility
to determine those kinds of questions.
Admiral Moeller. Without question, sir, that's exactly the
case, yes, sir.
Mr. Cole. Thank you very much.
Mr. Chairman, I yield back the balance of my time.
The Chairman. Mr. Udall.
Mr. Tom Udall. Thank you, Mr. Chairman. I thank the panel
and thank you for your service to our country.
General Bowdon, on this issue of the Endangered Species Act
in Camp Pendleton, we have been going around on this a little
bit and I was trying to listen to your answers here. It seemed
to me that we're talking only about 1 percent of Camp
Pendleton, that a little more than 1 percent has been
designated critical habitat. Is that a fair estimation?
I mean, I understand there are 186,659 acres, and of this
amount, critical habitat has been designated on 4,622. Much of
that has been leased to California for a State park. So that
means a little more than 1 percent of critical habitat has been
designated at Camp Pendleton.
Is that accurate?
General Bowdon. Thank you for that question.
That is, in fact, a true statement, sir. That's not really
what my concern is. My concern is what's going to happen in the
future.
Mr. Tom Udall. I understand that. I understand that there's
a lawsuit out there and you're worried that they're going to
come down. But there is a long history here with the Department
of the Interior, working very closely with these INRMPs with
you. In fact, using the authority under section 4(b)(2) of the
ESA, the Secretary of Interior used discretion and opted not to
designate critical habitat because these lands are used by the
military. So you've had another Executive agency, with
expertise in this area, choose not to designate habitat. So
what we're worried about is some floating possibility out here
that this may happen.
It seems to me like the agencies are doing their job
working with each other, and as your counsel said earlier, you
work with other agencies to try to resolve these problems. He
said that a couple of times, you know, that we have our mission
for training and readiness, but we also want to comply with
environmental statutes. So I don't know why we're rushing here
to, in my opinion, gut the Endangered Species Act for something
that is just hanging over our head.
This leads me to really ask the key question here--and
maybe this is a question in a way for the Chairman--is there
anybody today with expertise from the Federal Government that
is going to weigh in on this bill that's before us? None of the
panel before us wants to tell us, from the Department of
Defense or any of these other agencies, whether you're for this
bill or against this bill. Is that correct, except for the
legal answer from counsel? So nobody is going to weigh in and
say what your official position is on this bill.
Am I correct in saying that? Is anybody going to dispute
that?
Then I've read through the testimony here of Dr. Hogarth,
and he says 1835 was recently introduced and is still under
review by the Administration. So Dr. Hogarth and the Assistant
Secretary, Mr. Manson, all of these agencies with the real
expertise on this issue have had this bill for over a week, and
all we're going to hear today in testimony is what your counsel
said here. He's going to defer to Interior. Interior is not
going to take a position. The folks at NOAA, they're not going
to take a position. So we're basically having nobody that has
real expertise weigh in on this bill.
I would say, Mr. Chairman, we've got to get somebody over
here that is going to weigh in on this bill before we go to
markup. We don't have the expertise here to look at this. The
expertise is in the Department of Interior, it's in NOAA, it's
in your departments. And if nobody is going to weigh in on this
bill, it seems that we should delay the markup on this. I mean,
it's really a precipitous action, an expedited, hurried up
action to move at this point.
I can tell you from my experience in dealing with the
Department of Interior, if an agency like that had a bill and
it was there for a week, and this was a major action taken by
the Congress in a bill to gut the Endangered Species Act, and
nobody could come up with a position in a week, a lot of people
ought to have their heads roll, if they can't come up with a
position on this.
So, Mr. Chairman, I would just ask that we get somebody
from the Administration with some expertise to come in here and
talk specifically about the bill we have before us. Thank you.
I know I have run out of my time.
The Chairman. I recognize myself.
I will tell the gentleman, first of all, no one has
introduced a bill that would gut the Endangered Species Act. I
know that that is always the fallback position of so many
people, that any time a bill is introduced that amends the
Endangered Species Act, in any way, all of a sudden we're
gutting the Act. That is not what is going on here.
You guys are failing to even listen to any of the testimony
that's before you. You've got your script down and you're going
by it, and you're not even listening to any of the answers that
are coming back to your questions.
There are specific problems that the military has. That is
what they have testified to. There are two provisions in the
bill that they don't feel they have jurisdiction on the
military, and they did not comment on those two sections of the
bill.
Judge Manson is going to testify later, and you can ask
your questions about those two sections of the bill when Judge
Manson is before us.
General Bowdon, if I could have you put up again the screen
that shows where the endangered species are right now.
General Bowdon. That is it, Mr. Chairman.
The Chairman. OK. In those areas where the endangered
species are identified, can you go into those areas right now
and train without any restrictions?
General Bowdon. We avoid them, sir.
The Chairman. You avoid those areas.
General Bowdon. That is correct.
The Chairman. So you cannot go into those areas and train
now? Even though critical habitat has not yet been designated,
you are restricted in your ability to use those portions of the
base?
General Bowdon. We are restricted by the terms and
conditions that we are given by the regulator on the use of the
lands that are adjacent to the habitat being occupied by the
endangered species. Of course, we honor that and work around it
as best we can.
The Chairman. So you tried to come up with an INRMP in
order to be able to look at the entire base in its entirety,
the entire biodiversity, the entire area, and come up with a
way that you can continue to use that base and not in any way
harass or harm the endangered species that are currently there?
General Bowdon. That is exactly right, Mr. Chairman.
The Chairman. This is your INRMP right here?
General Bowdon. That is correct, approved by the regulator.
The Chairman. Now, when they keep saying that only 1
percent has been designated as critical habitat, or a little
over 1 percent of what you are using, that is an accurate
statement. But that has nothing to do with all of the areas
where you can't go into.
The problem is, you're being sued, and suits are being
threatened, that would designate critical habitat on the rest
of your base. Even though you can't use that area right now,
and you're trying to use some of our modern technology, modern
ways of looking at the Endangered Species Act, you still can't
use that. But if they win and they file a lawsuit and go
against you, and that's all designated as critical habitat,
then it's all off limits to you.
General Bowdon. Fifty-seven percent, 70,000 acres, will be
basically off limits, not available for me, as Commanding
General, to use it for training, and it will basically become
the property of the regulator and probably, by litigation,
special interest groups.
The Chairman. So you'll end up with whoever files the
lawsuit, whatever groups go into this, with some say over that,
and probably most likely the Fish and Wildlife Service managing
those areas for the recovery of those endangered species,
regardless of what the critical habitat map comes back like,
because at this point we really don't know what the critical
habitat map will look like, and you will be confined to a very
small area of the base.
Let me ask you this. Where are you going to go to train?
General Bowdon. Well, sir, we do work-arounds at this
point. If that were to happen, we would have to work with the
regulators to find ways that we could do some training at Camp
Pendleton. However, we would have to use other areas, such as
we use--
The Chairman. You would be able to have some training at
Camp Pendleton, but you would have to go somewhere else for the
rest of your training.
General Bowdon. At present, sir, we are only able to
accomplish our training to a 68 to 70 percent standard. If
critical habitat were imposed, which is what that map now
shows, we would be far more encumbered and would have to do
more training in other places, which would affect our quality
of life. That training perhaps would be at Twenty Nine Palms,
and Twenty Nine Palms is not always available. And it would
cost a lot of money.
I would also point out that the success in Iraqi Freedom
was because of a major work-around, in that we were able to
train for months in the deserts of Kuwait prior to that action.
Mr. Abercrombie. Mr. Chairman, would you kindly yield?
The Chairman. Yes.
Mr. Abercrombie. Thank you. I'm asking you to yield on--
The Chairman. Before I yield to the gentleman--and I'm
going to recognize you for your full 5 minutes right now.
Mr. Abercrombie. Oh. OK. I just wanted to follow up on--
The Chairman. I'll just recognize you, Neil, as soon as I
finish.
Mr. Abercrombie. OK.
The Chairman. In wrapping up this part, are there any of
you on the bases that you have jurisdiction over right now that
have not had some impact on your training because of endangered
species?
Are there any of you that are asking for an exemption from
the Endangered Species Act or are asking us to gut the
Endangered Species Act so that you don't have to abide by it?
Let the record show they answered in the negative. Mr.
Abercrombie.
Mr. Abercrombie. Thanks very much, Mr. Chairman.
Mr. Chairman, for the record, I, for one, would like to say
that I don't believe that it is either your intent or the
intent of others in presenting any of this legislation to gut
the Endangered Species Act. I have great respect for you and
your sense of ``Aloha'' for the land and for the creatures on
it and in the sea as well.
My question is a follow up on what the Chairman says. I
want it understood that my question and observation don't come
from the point of view that I believe any of this is what the
object is. Now, it may be the object of other groups outside--
and believe me, I'm dealing with it right now. I'm very, very
familiar, thoroughly familiar, in the sea, in the Pacific, and
on land in Hawaii. There are people who want to use the
Endangered Species Act as a vehicle for their political agenda,
and I think they want to go to court. That's why I'm asking
this question.
I think Mr. Kildee said at one point, do we really want to
use a sledge hammer--and law can be a sledge hammer--as opposed
to trying to implement it perhaps with a stiletto and succeed
here, particularly where defense is concerned.
Now, in that context, General, I notice you have critical
habitat potential. Have you been talking with the Fish and
Wildlife Service?
General Bowdon. Every day, sir.
Mr. Abercrombie. OK. You are familiar with the way the law
works. Now, I'm going to draw a parallel, not an analogy but a
parallel to what's happening in Hawaii right now, where the
potential for designating critical habitat could, in effect, be
three-quarters of the State. On the Island of Kauai, it could
have been 75 percent of the island.
That is done as a defensive measure, Mr. Chairman, by Fish
and Wildlife because they are being sued. What they want to
do--and if you disagree with this assessment, General, just say
so; you're not going to hurt my feelings. In fact, it will help
to clarify things. When they make the first cut at critical
habitat--and I'm just going to go through this a little bit,
Mr. Chairman, because not everybody may be familiar with how
this works. They take the broadest possible definition of
critical habitat that could be, by any stretch of reason in a
court assessed by a judge, as having made the widest possible
consideration as to what critical habitat might be. That's the
first cut, right?
Then what the law says is Fish and Wildlife has to come to
the respective parties who are affected by such a designation,
including the Defense Department, and ask them how does this
affect you--the social impacts, the environmental impacts, the
economic impacts, right? At that point, then, they come with a
recommendation. And the way it has worked out over and over
again is considerably less, sometimes as much as 90, 95
percent, or even more, less than what was originally
encompassed. But they're on sound legal ground then because
they are taking into account the rest of the land--excuse me,
the rest of the elements, like economic impacts, et cetera.
That being the case, that's why the law exists as it is here
with exemptions and ESA compliance, takings, for example, in
the ocean.
The difficulty I have is not with what the Chairman says,
that there are groups out there who want to obviate this whole
thing. On the contrary, I not only agree with him, but I would
like to preclude them being able to do that. But I want to do
it in such a way that doesn't kill off all of the good parts
about this.
What I mean about the good parts, Mr. Chairman, it has been
stated already--I believe Mr. Cole made the point, or observed
the same thing that I heard the other day, that if you ask Fish
and Wildlife and Interior and NOAA and some of the other
groups, they will tell you that the Department of Defense is,
if not first rank, is among the first rank of agencies in
compliance with environmental standards and are good stewards.
So it means there's a good working relationship there.
So, if we want to zero in on those who have a political
agenda that simply is anti-military, and at the same time
trying to uphold the environmental standards as embodied in
either the Marine Mammal Protection Act or the Endangered
Species Act, doesn't it make sense for you to follow up on the
recommendation that I first questioned the counsel about under
the memorandum from the Oversight Council on Sustainable Ranges
Action Agenda, in that it recommends, Mr. Chairman, that the--
and this is the Integrated Product Team--recommends that the
Secretary of Defense provide guidance to the services on how to
assess and process exemption requests, and provide guidance on
Endangered Species Act compliance to assist the installations
in assessing regulatory burdens and resolve disputes not rising
to the level of the exemption candidates.
My only point here is--and here I have experience with the
Navy out in the Pacific--is it not the case in the Pacific that
Fish and Wildlife is trying to work with Barking Sands over on
Kauai right now and has been rebuffed? They have stated in
writing, have they not, over and over again, how they are
willing to comply and bring the critical habitat down to that
which is recommended by the Navy, and the Navy has said that
they won't do it because you've got a memo from former
Secretary England saying that you are not to cooperate with the
Fish and Wildlife Service at this point pending the resolution
of this language in Congress?
Admiral Moeller. Sir, if I may, thanks for that particular
question.
With regard to what has taken place at PMRF, it's my
understanding that critical habitat has already been designated
there on the strip along PMRF.
On the second issue you raise with regard to the former
Secretary of the Navy's direction, that was in an effort to
obtain overall consistency from activity to activity, as
opposed to something more to necessarily foreclose the ability
to comment.
Mr. Abercrombie. Is there or is there not a memo--two
things, a memo, a draft memo providing guidance to the services
on how to assess and process exemption requests? Maybe the
counsel can answer.
Mr. Cohen. Sir, yes, there is.
The Chairman. I'll let the gentleman answer the question,
but his time has expired. You can answer the question.
Mr. Cohen. Thank you, sir.
Yes, sir. It was actually signed by the Deputy Secretary of
Defense on March 7th of this year. It does direct the military
departments to create a process and criteria for evaluating
requests for exemption.
Mr. Abercrombie. Thank you. That's my point, Mr. Chairman.
I hope that we can have a discussion or a dialog in the
Committee here that takes as a starting point your observation
about there are those who want to--who have their own agenda in
here. But I assure you that I, for one, do not have such an
agenda. But I do think that we need to give an opportunity for
the DOD to try to work an exemption process, and a regulatory
burden relief process short of exemption, before we move to try
and change the language itself. I think such an operation is
just underway now, and perhaps we need a little bit more
elucidation from the Department on that.
The Chairman. I appreciate the gentleman's comments. I will
just respond by saying I think that what you are asking for is
actually what we're trying to do in this bill.
Mr. Abercrombie. I'm sorry?
The Chairman. I think what you are asking for is what we're
trying to do in this bill. Now, there may be specific language
in this bill that you question, but the overall effort of this
bill is to accomplish what it is you're asking for.
Mr. Abercrombie. I'm going to take that as a ``given'', Mr.
Chairman. My only point is that perhaps the DOD itself has
solved its own problem by the creation of this exemption
request process.
The Chairman. We have to codify it; that's the problem.
Mr. Walden.
Mr. Walden. Thank you very much, Mr. Chairman.
First of all, Mr. Chairman, thank you for asserting the
jurisdiction of this Committee over this issue, because I think
when ESA issues arise, our Resources Committee needs to be a
full participant in the process. So I commend you for not
yielding our jurisdiction or waiving it, but rather, having
this hearing and for your efforts on this legislation.
I have a couple of questions, and probably a comment or
two, and I will address them to Admiral Moeller. Included in
your testimony you talk about the Least Tern and the Western
Snowy Plover populations at the Naval Amphibious Base in
Coronado. Specifically you state that Least Tern nests have
increased from 187 to 825, and Western Snowy Plover nests have
increased from 7 to 99. This has been done, I guess, over a 9-
year period.
Is this under an INRMP?
Admiral Moeller. Sir, I would say that, first of all, the
fact that those two particular species at Coronado have
increased over that period of time I think bears witness to our
stewardship of the environment and the actions taken at
Coronado, which as you know, sir, is the location where our
Navy Special Warfare trains, our SEALS train. Of course, that
training was very significant and critical to the success of
those forces as along with all other forces.
Mr. Walden. But was that done under an INRMP, do you know,
or just under your general management strategies?
Admiral Moeller. It was done under full compliance with the
Endangered Species Act, sir.
Mr. Walden. So it wasn't part of an INRMP?
Admiral Moeller. No, sir.
[RADM Moeller's response submitted for the record follows:]
After reviewing the transcript of my written testimony, I need to
clarify this response. Yes, Navy has an INRMP that provided the
guidelines used for conservation and stewardship of these species. As
accurately reflected in my written testimony, NAB Coronado provides an
excellent example of the effectiveness of INRMPs in protecting
threatened and endangered species. Navy stewardship programs at Naval
Base Coronado have greatly increased the number of California Least
Tern and Western Snowy Plover nests at Naval Base Coronado. Through the
Navy's conservation and management programs, California Least Tern
nests have increased from 187 to 825 (more than a four fold increase)
and Western Snowy Plover nests have increased from 7 to 99 (nearly a 14
fold increase) in nine years. These increases have been accomplished
through the use of our INRMPs and related Biological Opinions issued by
USF&WS. I apologize for any confusion my oral answer may have created.
______
Mr. Walden. I commend you for the work you're doing. Don't
take my line of questioning the wrong way. What are the
recovery goals set by U.S. Fish and Wildlife Service on this,
on these species? Are there specific goals that are set?
Admiral Moeller. There may well be, sir. I need to take
that one for the record, sir, and get back to you on that.
[RADM Moeller's response submitted for the record follows:]
California Least Tern that is dated 27 September 1985. The USFWS
plans to update the recovery plan for the California Least Tern. For
the Western Snowy Plover the USFWS has a draft recovery plan dated 1
May 2001, and has not established final recovery goals. A summary of
goals specific to Navy installations in the 1985 recovery plan is as
follows: develop management plans for Navy sites, look at feasibility
of establishing nesting site at Naval Radio Receiving Facility San
Diego, and control predators. Navy has accomplished all these goals.
______
Mr. Walden. OK. You testified that military training areas
were originally located in isolated areas, and now they're
surrounded by development, leaving the military lands as the
only relatively undisturbed habitat for many species. Does this
mean your stewardship of these lands has actually come back to
bite you now?
Admiral Moeller. I would say, sir, that again, we take
great pride in our ability to preserve the environment in those
areas where we clearly have to work through those issues. I'm
not sure that I--
Mr. Walden. Doesn't it add extra pressure to you if the
other lands around you have suddenly been developed and paved
and built on, and it's your lands that are the ones left open?
I represent a district that is 72,000 square miles, bigger
than any State this side of the Mississippi. We face this
problem all the time.
Admiral Moeller. Yes, sir. I mean, that is clearly a
challenge that we have to work our way through. One area where
that affects us, of course, is at Fallon, an area that we're
concerned about. Of course, clearly the contribution of Fallon
is great from the standpoint of all of our carrier-based air
wings who train there, and all did train there en route to OIF.
Mr. Walden. I don't know who could answer this best, but is
the INRMP process one that's available to all agencies to use?
The Chairman. No, that is DOD military lands.
Mr. Walden. OK. I'm new to this particular segment, because
it really hasn't--
The Chairman. If the gentleman would yield, it operates
similar to a habitat conservation plan. That would be with what
you're used to dealing with. That would be a more accurate way
of looking at it.
Mr. Walden. And is the goal then of this legislation, Mr.
Chairman, to basically we'll treat it the same way as a habitat
conservation plan, for purposes of satisfying the requirements
of the Endangered Species Act, in a way?
The Chairman. It goes somewhat beyond that. In my opinion,
what it does, it locks them in to adopting an INRMP and having
to follow it, in order to protect species on those lands.
What has been suggested earlier is that the go to the God
squad or that they request a national security exemption. It
gives them lot more leeway to operate than tying them into an
INRMP.
Mr. Walden. As you know, Mr. Chairman, in the Klamath
Basin, where we've been through these Endangered Species Act
rules and all, the God squad option is really not a viable one,
that no one has ever been able to make work, and if you do,
it's costs are incredible potentially on those trying to make
it work.
I know my time has run out, but I just hope that as we move
to take care of the problem you face--and I'm very sympathetic
in support of resolving it--I have to be able to go home to my
district, that has suffered for decades because of these
issues, unrelated to military, on how we manage Federal lands,
to be able to explain to those folks, and John Day and Prairie
City and Baker City, why, when the military runs up against a
problem with ESA, we carve out a way to get around it, but if
it's timber related or water related, we just put people out of
business and destroy the economy of rural communities. That's a
real bone stuck in my throat, and those are the people I
represent.
Do not take that, though, as anything hostile toward what
you're doing. I'm sympathetic and will work with the Chairman
and you all to try and help you in the process. The training
and the ground is invaluable.
Thank you, Mr. Chairman.
The Chairman. Mr. Grijalva.
Mr. Grijalva. Thank you, Mr. Chairman.
I have a couple of questions and some observations on some
of the material that has been provided to us in preparation for
this hearing. I want to also thank the witnesses for their fine
work and assuring that our men and women in uniform were
prepared and ready, and the proof is evident to everyone.
I was very curious as to the quantification study--I think
it was Camp Pendleton, if I may, General. That was a contract
study commissioned by whom?
General Bowdon. By the base, sir.
Mr. Grijalva. Thank you. I think some of the information
that you gave in your testimony, both oral and written, is very
pertinent to the discussion today. I wanted to know, the data
from that particular study, is that available to the public or
to the Committee and their staff?
General Bowdon. We can submit the study for the record, and
would certainly like to do so.
Mr. Grijalva. Thank you, sir.
Mr. Grijalva. On that point, let me maybe follow up with a
couple of other questions, if I may, General.
In that study, as we talk about the encroachment issue,
what factors besides critical habitat, wildlife protection,
affect the military's ability to train? I think it was just
brought up by my colleague just now, including encroachment
issues dealing with housing development, transportation and
highways. What other factors are included in encroachment
issues and the inability or ability of the--
General Bowdon. Sir, in the last 10 to 15 years, the
biggest encroachment factor has been urbanization around the
base, and then the destruction of habitat around the base. The
growth and endangered species and the regulations associated
with them have been the largest encroachment factor for Camp
Pendleton.
Mr. Grijalva. And the data that we will receive as a
Committee quantifies that particular point?
General Bowdon. That is exactly right, sir.
Mr. Grijalva. One other point. In your written testimony,
General, in speaking of the quantification effort, you revealed
that regulatory restrictions to natural and cultural resources
constitute 70 percent of the encroachment factors affecting
Camp Pendleton and its capability to accommodate training.
What is the breakdown between environmental protections and
cultural resource protections at that 70 percent point that you
make?
General Bowdon. The biggest encroachment to our operation
for the purposes of this Committee, sir, is the Endangered
Species Act. Almost 30 percent of the encroachments that we are
now having to work with have to do with the Endangered Species
Act.
Mr. Grijalva. And the percentage for cultural resources,
regulatory issues or restrictions?
General Bowdon. I'll take that for the record and get it
back to you. I think all three of them amount to--the
Endangered Species Act, the wetlands regulations and the
cultural resources regulations--all amount to about 70 percent,
with the largest being the Endangered Species Act.
Mr. Grijalva. I would appreciate that, General. Thank you.
The observations, Mr. Chairman, that is particular to one
very vital training area in the district that I represent in
Arizona, the Barry Goldwater Range. There was an assertion made
by the Department of Defense, I think in an interview in 2002
by the Deputy Under Secretary of Defense for Readiness, saying
that almost 40 percent of the live missions at the Goldwater
Range were canceled. Upon further review, and with information
provided by the Department of Defense, that figure is not
correct.
What is on the range is the Sonoran pronghorn, which to the
latest count is between 21 and 30 of that very critically
endangered species continue to survive.
Let's just concentrate on the flight issues, the sorties.
Forty-five were canceled, 474 were moved to another location to
accommodate the pronghorn, and there's 33,000 of those that are
conducted every year.
The other point was made about Fort Hood, TX at 17 percent.
There's only 17 percent of the acreage that is usable. I find
it ironic, though, or would want more information, on the fact
that about 74 percent of that land acreage is leased out or
designated and restricted for cattle operations--the point
being, I'm still searching for the urgency, the severity, the
threat to national security and defense that this legislation
purports to address.
I have no other questions. Thank you, Mr. Chairman.
Mr. Walden. [Presiding.] Thank you.
The Chair now recognizes Mrs. Bordallo.
Mrs. Bordallo. Thank you, Mr. Chairman.
After listening for quite some time here, I realize we have
a very complex issue before us. I do appreciate the thorough
explanation of our Chairman, the necessity for us to act on
DOD's request for legislative relief from encroachment by
litigation. Believe me, I'm fully aware of these issues, as we
are facing on Guam critical habitat designation issues. I
represent the Territory of Guam.
Let me begin my questioning by saying that over one-third
of our land on Guam is occupied by military bases, over one-
third. We do have a number of designated training areas on our
bases, both the Air Force and the Navy. I guess my question
would be to you, Admiral.
In the current situation on the U.S. Naval Base in Guam,
one of the recommendations made by the Fish and Wildlife
Service is that native birds be reintroduced in order to
facilitate their recovery after decimation by the brown tree
snake. I'm sure you've heard about our brown tree snake. I have
been told that reintroduction of endangered species on military
lands is against the Navy's policy.
My question is, why does the Navy take the position that it
does? That is, why will the Department not allow for the
reintroduction of threatened and endangered species on its
lands? And should the legislation before us be enacted, would
the Navy reconsider this position?
What I'm asking, I guess, is could we have alternative
plans in place?
[RADM Moeller's response submitted for the record
follows:]
It is Navy policy to ensure that proper budgeting and planning is
conducted to support ongoing and new natural resource efforts
consistent with the Endangered Species Act for the conservation of
listed species on Navy lands, and to ensure that Navy lands will remain
available to support the military mission for which they have been so
designated. Review and approval by the chain of command, including both
the major claimant and CNO N45, is required prior to committing to
introduce or re-introducing such species on a Navy installation. The
availability of funds, ongoing and planned stewardship efforts, and
consistency with Navy mission are key considerations in evaluating any
such request from a field command to introduce or re-introduce
threatened or endangered species on Navy lands. This approval process
in no way alters the Navy's commitment to use its authority to enhance
the recovery of listed species and their habitats. Fundamentally, the
decision to introduce a listed species onto Navy lands mandates a long-
term, irretrievable commitment of resources (e.g., funding, manpower,
real estate, NEPA documentation). It is also possible that this type of
decision may negatively impact mission readiness by altering the
primary focus of our designated land use from support of military
readiness to that of management and conservation of listed species.
Secretary of Navy letter of 25 November 2002 reinforced this policy by
directing such actions be staffed through the chain of command to
ensure that Navy meets the ``Department's obligations under Title 10 of
the U.S. Code to maintain ready forces.'' Enactment of the proposed
legislation, which deals with the use of INRMPs in lieu of critical
habitat designation, would have no impact on our decision making
process as it would not impact the key decision factors discussed
above.
______
Mrs. Bordallo.My position is that many of the bases
probably do not have proper training areas. Some do and some do
not. Some are larger. Some are smaller, have more land area to
designate for training. I think we should look at this
legislation on a case-by-case basis. This is just my personal
opinion.
So could you answer that for the Navy?
Admiral Moeller. Yes, ma'am. Thank you very much for that
question.
I am familiar with that issue, from the standpoint of the
position that the Navy has taken on it, and I believe--it's my
understanding that that position is based on the fact that
reintroduction would create the potential for the species to
proliferate and expand to the training areas in such a way that
would then create some significant challenges for us from being
able to then operate in the future and use those vital training
areas for such purposes. So that's the basis on which the Navy
position has been taken.
Mrs. Bordallo. I understand. Then let me ask a follow-up
question.
How, then, does the Navy suggest recovery of threatened and
endangered species that have disappeared from your lands? And
if you do not support allowing for them to recover on your own
lands, isn't this a clear difference between what may be
accomplished through critical habitat designation and what
would be accomplished through only your requested alternative?
I'm just wondering, is there a plan that you have in place
to deal with it? Guam doesn't have a lot of property.
Admiral Moeller. The position, ma'am, is that doing so as
you describe would kind of change the focus and the purpose of
the land and how that would be allowed to be used if we were to
do it that way. I think that's where we are on it, ma'am.
Mrs. Bordallo. So your position then would be that, if this
species of birds are threatened entirely, you don't feel you
could change your policy in any way? Is this what you're
saying?
Admiral Moeller. No, ma'am. I'm not saying that. I think
what I need to do is to take that one for the record, if I
might, so I can provide you a much clearer answer, ma'am.
Mrs. Bordallo. All right. Thank you.
Thank you very much, Mr. Chairman.
[RADM Moeller's response submitted for the record follows:]
No. We have carefully considered all aspects of this issue in
formulating our current policy. We believe that it is fully consistent
with the goals of the Endangered Species Act and our legal mandate
under Title 10. Our penultimate goal is to achieve the correct balance
between the protection of threatened and endangered species and our
national security mission.
______
Mr. Walden. Thank you.
I want to thank the panel for being here today, and for
your testimony on this legislation. We will excuse this panel
and then bring up our second panel.
Mr. Tom Udall. Mr. Chairman, could we--I just wanted to
make one more statement, or ask a question to clarify something
I said earlier, if that's all right.
Mr. Walden. That will be fine, if the panel can hold then.
Mr. Tom Udall. Earlier I made the statement--and the
Chairman objected to it--and it had to do with the gutting of
the Endangered Species Act. I wanted to make myself clear in
the record so the Chairman understood what I was talking about.
Some of the language that has been included in this bill
would amend the current Endangered Species Act. This is a
crucial section of the Endangered Species Act, because it's
declaring what the policy of the Congress is. It says--and I'm
quoting from the statute--under the policy of the Congress.
``It is further declared to be the policy of the Congress that
all Federal departments and agencies shall seek to conserve
endangered species and threatened species''--that's what it
currently says, and here's what is inserted in this bill:
``...insofar as practical and consistent with their primary
purposes.''
So what we're talking about is, if a Federal agency has
this primary purpose and they're focused on the primary
purpose, no longer do you have to engage in a section 7
consultation with the key Federal agency. To me, that totally
changes the landscape.
The interesting thing to me is that, in fact, in 1966, the
Endangered Species Act contained this same language,
``...insofar as practical and consistent with their primary
purposes.'' So that wasn't working in 1966, and we replaced
that language with the language that's in the law today. We
moved forward and we basically had an equality between agencies
and between the concern for a species and concern for the
primary mission, and we were forcing agencies to work with each
other and resolve these things, which I think the military
should be applauded for, in the many cases I've heard about, as
Mr. Abercrombie said, for working together with the other
agencies that are concerned about endangered species and
finding solutions.
But under this current bill, under this current bill, if
you use that language ``...insofar as practical and consistent
with their primary purposes'', what you would end up doing is
the Bonneville Power Administration and the Corps of Engineers,
they could ignore the endangered salmon because they would just
say their primary mission is to generate and transmit power, so
we don't have to think about salmon any more.
The Federal Highway Administration could ignore the impact
of highway construction on endangered species habitat because
their primary mission is to build and maintain highways. You
can see the example going on and on and on.
So this change could eliminate the need for any Federal
agency to ever consider the impact of its action on endangered
species. That's what worries me. That's what I think is very
dramatic about what is being done here. I used the term
``gut'', and I still stand by it. But I believe that this is a
dramatic change when we start saying ``primary mission'' and
you then don't have to deal with an endangered species issue. I
think that's the way a court would look at it.
I appreciate very much Chairman Walden for just giving me a
second to outline that. It's not a question to this panel. I
wanted to make clear what I was saying to the Chairman. I once
again want to thank the military officers here for their
service to the country and for the remarkable job that they did
in Operation Iraqi Freedom.
Thank you very much, Mr. Chairman.
Mr. Walden. The gentleman yields back his time.
I would just yield myself 5 minutes, as we go back and
forth here, and I won't take the full five. But given that the
gentleman raised the issue of Bonneville Power and all, as I
read this proposed language, I don't read it the same way,
because it says ``insofar as is practicable and consistent with
their primary purpose.'' In the case of Bonneville Power, it's
primary purpose is to manage the river system to produce power.
It is also practicable that they can manage it in a way that is
not harmful to the fish in the river. I think that's
practicable. They can do it.
What we're trying to get at here--and I'm not trying to
speak for the Chairman; he does a quite adequate job of that
himself--but we're trying to get back to an evolution and a
balance here that some of us think it has gotten out of
balance. So I would just say that the idea here is to get back
to a more level playing field.
Obviously, the law evolved out of '66 to '73, and I think
it's time, 30 years later, to say maybe things aren't working
quite the way they need to work and maybe there's a better way
to do it.
I would yield back and recognize my colleague.
Mr. Faleomavaega. Thank you, Mr. Chairman.
I think the bottom line of the question, at least in my
mind, and the concerns we have from our friends here from the
various branches of the armed services--I'm not on the Armed
Services Committee, but I think the bottom line issue that
we're looking at is to determine how we can go about in giving
the best possible training for our military men and women in
uniform, training to the effect that anything less asks the
question of their lives in the field of combat. I think this is
basically what we're looking at, at least that's my
understanding. It's the bottom issue.
But there seems to be a mixed bag here, Mr. Chairman, in
terms of my observation. There is a mixture here that I see
that in some military installations things work very well
between the communities and the enforcement of the Endangered
Species Act, and in other military installations we have very
serious problems, the situation at Camp Pendleton, as
explicitly stated by General Bowdon, and the problems that he
is confronted with. So we definitely have a problem there.
I, for one, would like to see, if I gather from the
testimony of our friends here, that there is a consensus among
the armed services that we are providing less effectiveness in
terms of how we're training our men and women in combat. Am I
wrong on this observation? Am I to agree that there's consensus
that we are not providing first-class training opportunities
for our men and women in uniform and that's the reason for your
presence here?
General Bowdon. That is correct, sir. I have identified the
problem as a degradation to training, and I have quantified
that problem that, aboard Camp Pendleton, we are only able to
meet a 68 percent standard of training because of our
compliance with the Endangered Species Act.
Mr. Faleomavaega. And there is absolutely no way in your
capacity, or even with those Federal agencies, that you can
work something out with reference to the current law as it now
stands. It's impossible for you in your capacity, as I
understand it, from 68 percent efficiency that you're having
now in training your men in combat; am I correct on this?
General Bowdon. That is correct. But I would caution to
this, in that we have received no reward for the good job that
we have done. We have been given a recovery standard on several
of the species, and for the Least Bell's Vireo, for example,
there was less, when we started studying them, less than 300.
The recovery standard was set at 300. We now have 700. I still
have to work around the 700. So that's why I am encumbered.
Mr. Faleomavaega. Please, I'm not faulting you in your
situation. I'm just simply saying that this is the reality
you're confronted with right now, as far as training resources
made available at Camp Pendleton; you simply do not have the
land available to train the number of men that you now have
under your command simply because of the restrictions placed by
the Endangered Species Act; am I correct on this?
General Bowdon. That is correct. But what I really need is
clarification of my mission and clarification of the law for my
mission, and codification of the current regulator's, Fish and
Wildlife Service practices, and their approval of the
Integrated Natural Resource Management Plans that we have.
Mr. Abercrombie. Will the gentleman yield?
Mr. Faleomavaega. Yes.
Mr. Abercrombie. But, General, doesn't that go to my
question back here? This is coming from the DOD. It's not
something I'm making up. The DOD should develop guidance on ESA
compliance to assist installations in assessing regulatory
burdens, 300 to 700, and resolving disputes not rising to the
level of exemption candidates.
What you just talked about probably doesn't rise to the
level of an exemption. But you haven't even made an inquiry.
You have no guideline. You know, I'm familiar with about what
the potential is. I went through that with the court. Fish and
Wildlife has its standard, being able to go back into court and
be able to hold off these groups that come in and want to knock
you out of the box. They're trying to take you out there.
Fish and Wildlife isn't trying to do that. They have to
protect their right flank, too. At least my experience with
Fish and Wildlife is that they are more than willing to try to
accommodate what you need to have done, but you folks don't
even have a fundamental guideline, a paper or procedure.
Mr. Faleomavaega. Reclaiming my time, Mr. Chairman, not
only do I agree with my good friend from Hawaii's assessment
and concerns, but the bottom line concern that I have--and I
think this seems to be the consensus here on this side of the
aisle--the Department of Defense should take an overall concern
about the very thing that Mr. Abercrombie has stated earlier,
rather than each branch of the armed services saying we've got
a problem but with no plan put forward. I think this is the
concern we have.
We're not against the military providing the best possible
training. We're just trying to see if we can establish a
balance in terms of what we're concerned about as far as the
Endangered Species Act and the needs for giving our men and
women good training. That's all I'm concerned about.
Thank you, Mr. Chairman.
The Chairman. [Presiding.] The gentleman's time has
expired.
Before I dismiss this panel, I want to thank you for your
testimony and for answering the questions. I think all of you
now have the opportunity to see what some of the questions and
concerns are of the Committee and how difficult it is to move
legislation such as this through the Committee.
I think you can also see that there is a tendency for some
of us to not fully grasp just how difficult it is for you to do
your jobs. I look forward to continuing to work with you in
hoping to move this legislation forward.
Mrs. Christensen. Mr. Chairman?
The Chairman. Mrs. Christensen.
Mrs. Christensen. Could I also ask one final question?
The Chairman. If you make it real quick.
Mrs. Christensen. OK. Probably some testimony will come
later, but this goes to Colonel DiGiovanni. Professor Kunich,
who will testify later, was formerly the chief environmental
Law attorney for the Air Force Space Command. In his testimony
he states, ``During my two decades of military legal service,
which included the first Gulf War, our intervention in Kosovo,
and several major operations other than war, I never became
aware of even one instance in which the Endangered Species Act
or the Marine Mammal Protection Act posed an impediment to the
military mission.''
Have things changed dramatically since he left in 1999 to
bring us to the point which we're at today?
Colonel DiGiovanni. I'm not sure what experiences the Judge
Advocate has as far as preparing warfighters for combat. But I
can say that we in the Air Force have a very good working
relationship with the U.S. Fish and Wildlife Service and State
agencies that allow us to produce what I think are pretty good
Integrated Natural Resource Management Plans.
Again, I think what we're trying to do with the RRPI is to
codify that into law, so that we can look at each individual
issue out on the range in a holistic manner, in a way that
takes a look at the entire ecosystem that we're trying to train
on and produce warfighters to do what is needed for national
defense needs.
Mrs. Christensen. We appreciate the need for the ability to
train and the difficulty being in court has presented to many
branches of the armed forces, but it just seems this goes a bit
further than it should go and it really undermines an Act that
I think is important, that we protect and preserve.
The Chairman. I would agree with the lady, that the
Endangered Species Act is important and it needs to be
preserved. Unfortunately, when we have a panel of witnesses
that testify for two-and-a-half hours about all of the problems
they're having, it makes it difficult to move forward and do
what we really need to do in order to allow them to do their
job.
I do appreciate your testimony. I'm going to dismiss this
panel. Thank you very much for your testimony.
Mr. Abercrombie. Mr. Chairman. They can go.
The Chairman. Yes. You guys can go. And I'm going to call
up our next panel.
Mr. Abercrombie.
Mr. Abercrombie. I just wanted to compliment you on the
fact that the two-and-a-half hours shows the thoroughness with
which you're trying to come to grips with the issue, and I, for
one, appreciate it.
The Chairman. Thank you.
Mr. Abercrombie. Even if nobody else does, Mr. Chairman.
[Laughter.]
The Chairman. Thank you very much. I want to welcome our
second panel. Before you guys get too comfortable, I would ask
you to stand and raise your right hand.
[Witnesses sworn.]
Let the record show they answered in the affirmative. I
welcome you here today. I apologize for the delay. I know that
both you gentlemen have been waiting for your opportunity to
testify.
Judge Manson, we are going to start with you in just 1
second. If I could have order in the Committee. I would like to
have that rear door shut, and if you're in, you're in, and if
you're out, you're out. These gentlemen have been waiting for a
long time to have their opportunity to testify and they deserve
to be heard.
Judge Manson, if you're ready, you may proceed.
STATEMENT OF CRAIG MANSON, ASSISTANT SECRETARY FOR FISH AND
WILDLIFE AND PARKS, U.S. DEPARTMENT OF THE INTERIOR
Mr. Manson. Thank you, Mr. Chairman. I appreciate the
opportunity to testify this afternoon on this subject on behalf
of Secretary Norton, who understands the unique nature of the
duties and missions of the military and the need to train
effectively for military activities. On a personal note, I have
seen these issues from both perspectives, having served nearly
30 years in the active duty Air Force, the Air Force Reserve,
and the Air National Guard. Many times I was called upon to
advise commanders about compliance with environmental laws,
including the Endangered Species Act.
From that experience, and my experience as a State
regulator in California, I can say that the Department of
Defense has been an exemplary steward of the Nation's natural
resources, and that opinion is shared by the Secretary and
throughout the Department of the Interior.
The Fish and Wildlife Service, which I oversee, has
actively sought to work with the Department of Defense to
achieve a balance between meeting the requirements of various
natural resources laws without impacting the military's ability
to train.
My testimony today focuses on the proposal concerning the
substitution of Integrated Natural Resource Management Plans,
INRMPs, on military installations for critical habitat under
the Endangered Species Act. At least 300 listed species occur
on Department of Defense lands, and access limitations due to
increased security, the necessity for buffer zones, and good
military stewardship has resulted in some of the finest
remaining habitat occurring on those military lands.
The ESA requires the Fish and Wildlife Service to designate
critical habitat for listed species, if designation is prudent
and determinable. Critical habitat designations on DOD lands
can impact the ability of the military to prepare and train by
imposing additional requirements for consultation under section
7 of the Act.
As you are aware, Mr. Chairman, I have offered testimony at
a recent hearing which focused on the problems the Fish and
Wildlife Service currently faces in implementing the ESA's
requirements to designate critical habitat. If I may, I would
like to offer some brief general comments on that issue,
followed by a discussion of critical habitat issues on military
lands.
For many years, the Fish and Wildlife Service has faced the
difficult challenge of meeting all of the non-discretionary
deadlines to list species and designate critical habitat
imposed by the ESA. There are an ever-increasing series of
court orders, compliance with which now consumes nearly the
entire listing budget. Moreover, the accelerated schedules that
often result from litigation have left the Service with almost
no ability to confirm the scientific data and its
administrative record before making decisions on listing and
critical habitat proposals, without risking noncompliance with
judicially imposed deadlines.
Finally, it has fostered a second round of litigation in
which those who fear adverse impacts challenge designations.
The cycle of litigation is endless, it's expensive, and in the
final analysis, provides almost no additional protection to
listed species. The time spent on lawsuits could be better
spent on focusing on those actions which benefit species,
through the development and implementation of recovery plans,
working to develop partnerships with States and land owners,
including the military.
The Department of Interior's policy is to exclude military
facilities from critical habitat designations, if the military
has an improved INRMP which addresses the species in question.
We support the codification of this policy, as it has allowed
the Department of Interior to address a number of Department of
Defense concerns over critical habitat designations. You heard
some of those concerns.
If I may, Mr. Chairman, this is a moderate policy, begun in
the last administration. It provides a superior way of dealing
with the issues raised by critical habitat because it
approaches it from an ecosystem perspective instead of the
long-discredited, species-by-species approach. It provides real
management instead of the lack of management provided by the
critical habitat designation. For that reason, we support it.
A recent court decision, however, has clouded our ability
to exclude military lands; that was referred to by one of the
earlier witnesses, involving the Forest Service suit in the
District of Arizona. For that reason, it would be important to
codify this policy.
In closing, Mr. Chairman, I believe that both the Interior
Department and the Department of Defense have operated
cooperatively to implement natural resources conservation laws
passed by Congress. We are aware of the challenges that have
arisen during this endeavor.
This concludes my testimony. I will be glad to answer any
questions at the appropriate time.
[The prepared statement of Mr. Manson follows:]
Statement of Hon. Craig Manson, Assistant Secretary for Fish and
Wildlife and Parks, U.S. Department of the Interior
Mr. Chairman and members of the Committee, I am Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks in the Department
of the Interior (Department). I am pleased to appear before you today
to discuss the role of the Department of the Interior in implementing
Federal natural resource laws and our continuing working relationship
with the Department of Defense (DoD) on natural resource issues. My
statement will address the Fish and Wildlife Service's responsibilities
and authorities under the Endangered Species Act (ESA), the Sikes Act,
and the Marine Mammal Protection Act (MMPA). These laws reflect our
Nation's long-standing commitment to the conservation of our natural
resources for the benefit of future generations.
The Department interacts with Department of Defense activities
through its bureaus, including the U.S. Fish and Wildlife Service, the
Bureau of Land Management, and the National Park Service. The Fish and
Wildlife Service strives to insure flexibility in meeting our joint
responsibilities under the various natural resource laws without
impacting the military's ability to train its personnel. I believe that
the Fish and Wildlife Service and the military have done a commendable
job at working together to strike a balance between our legal
responsibilities and the Armed Forces' duty to be both protectors of
our National Security and stewards of our natural heritage. I also
acknowledge that more can be done. I will address both our successes
and challenges as I discuss issues associated with the applicable laws.
Endangered Species Act
The ESA was passed in 1973 to conserve vulnerable plant and animal
species that, despite other conservation laws, were in danger of
extinction.
DoD has a critically important role to play in the conservation of
many rare plants and animals. At least 300 species listed as threatened
or endangered occur on DoD-managed lands. DoD manages approximately 25
million acres on more than 425 major military installations throughout
the United States. Access limitations due to security considerations
and the need for safety buffer zones have sheltered many military lands
from development pressures and large-scale habitat loss. As a result,
some of the finest remaining examples of rare wildlife habitats exist
on military lands.
The Fish and Wildlife Service has strived to establish good
relationships with DoD that enable the military to carry out its
mission of protecting our country while also ensuring the conservation
of ESA-listed species on land it manages.
Candidate Conservation
Conserving species before they need protection under the ESA is
easier, more efficient, and poses fewer challenges to Federal agencies,
including the military. In partnership with DoD and NatureServe, the
Fish and Wildlife Service is developing a list of all at risk, non-
federally listed species that may be found on or near military lands.
This partnership project was developed by the military agencies, and
demonstrates their interest in working with the Fish and Wildlife
Service to benefit species.
The term ``species at risk'' is a term used by NatureServe for a
native species that is either a candidate for listing or is considered
by NatureServe and the Network of Natural Heritage Programs to be
``imperiled'' or ``critically imperiled.'' In NatureServe's use of the
term, ``species at risk'' refers to species that are presumed extinct,
historical, critically imperiled, imperiled, and vulnerable (GX, GH,
G1, G2, G3 ranks, respectively). Although the Fish and Wildlife Service
generally means the same thing when we use the term ``species at
risk,'' we use the term as a descriptive, illustrative term for those
species that may warrant conservation to prevent the need to list under
the ESA. A ranking of G1, G2, or G3 indicates those kind of species.
``Imperiled'' and ``critically imperiled'' are defined by NatureServe
as terms referring to G1 and G2 ranked species.
Once a species at risk is identified based on a mutual priority
between the DoD installation and the Fish and Wildlife Service, the
Fish and Wildlife Service works with DoD to develop and implement
conservation recommendations for the relevant activity. DoD working on
a particular ``species at risk'' is based on a mutual priority between
the DoD installation and the Fish and Wildlife Service.
In addition to this local and regional cooperation, Fish and
Wildlife Service and DoD personnel have been meeting quarterly for
several years in an ``Endangered Species Roundtable.'' This informal
session allows for open discussion and can lead to the referral of
particularly difficult issues to headquarters for guidance or
resolution. The group also reviews the Sikes Act and Integrated Natural
Resource Management Plan (INRMP) development and implementation as they
pertain to endangered species management.
Challenges
Even with these successful partnerships, we acknowledge that there
have been challenges in resolving endangered species conservation and
the military mission at some DoD bases and facilities. For example, 18
threatened or endangered species occur on Camp Pendleton, a Marine
Corps Base in California. For some of these species, like the tidewater
goby, the base harbors the only known remaining populations. Preventing
potential conflicts between endangered species conservation and Camp
Pendleton's primary military mission continually challenges the
creativity of both the Fish and Wildlife Service and the base
leadership.
Section 7(j) of the ESA provides a national security exemption that
DoD can invoke in cases where National Security would be unacceptably
compromised by conservation responsibilities. This exemption has never
been invoked by DoD, a fact that speaks very well to the creativity of
our military and natural resource professionals. However, it is
apparent that we must avoid penalizing the military for having done
positive things for conservation of species and we must not unfairly
shift the burden of species protection to the military. Additionally,
in some cases, issues arise because of differing perceptions between
our respective agencies about the effects of the provisions of the ESA.
Finally, I must note that many of the challenges presented to the
military under the ESA are similarly faced by other Federal agencies
and private landowners. We look forward to continuing to work with the
DoD to clarify these issues and build upon the relationship we have
established.
Critical Habitat Designation
As you are aware Mr. Chairman, I offered testimony at a recent
hearing which focused on the problems the Department and the Fish and
Wildlife Service currently faces in implementing the ESA's requirements
to designate critical habitat. If I may, would like to offer some brief
general comments on this issue, followed by a discussion of critical
habitat issues as the relate to military lands.
Designation of critical habitat has been a source of controversy
and challenge for many years. For well over a decade, encompassing four
separate Administrations, the Fish and Wildlife Service has been
embroiled in a relentless cycle of litigation over its implementation
of Section 4 of the ESA. The underlying premise of those cases has been
a dispute between the Fish and Wildlife Service and numerous private
litigants over the proper allocation of the limited funds appropriated
by Congress to carry out the numerous petition findings, listing rules,
and critical habitat designations mandated under the rigorous deadlines
in Section 4. The Fish and Wildlife Service now faces a Section 4
program in chaos--not due to agency inertia or neglect, but due to
limited resources and a lack of scientific discretion to focus on those
species in greatest need of conservation.
For many years the Fish and Wildlife Service has been unable to
comply with all of the non-discretionary deadlines imposed by Section 4
of the ESA for completing mandatory listing and critical habitat
(listing program) actions within available appropriations. The majority
of private litigants have therefore repeatedly sued the Fish and
Wildlife Service because it has failed to meet these non-discretionary
deadlines. These lawsuits have subjected the Fish and Wildlife Service
to an ever-increasing series of court orders and court-approved
settlement agreements, compliance with which now consumes nearly the
entire listing program budget. This leaves the Fish and Wildlife
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions most urgently
needed to conserve species.
Moreover, the accelerated schedules that often result have left the
Fish and Wildlife Service with almost no ability to confirm the
scientific data in its administrative record before making decisions on
listing and critical habitat proposals, without risking noncompliance
with judicially-imposed deadlines. Finally, it has fostered a second
round of litigation in which those who fear adverse impacts from
critical habitat designations challenge those designations. This cycle
of litigation appears endless, is very expensive, and in the final
analysis provides relatively little additional protection to listed
species.
In short, litigation over critical habitat has hijacked our
priorities. The Fish and Wildlife Service's listing program's limited
resources and staff time are being spent responding to an avalanche of
lawsuits, and court orders focused on critical habitat designations. We
believe that this time could be better spent focusing on those actions
that benefit species through improving the consultation process, the
development and implementation of recovery plans, and working to
develop voluntary partnerships with States and other landowners. As
discussed in more detail below, this includes the military agencies.
Issues Relating to Definitional Exclusions from Critical Habitat
Integrated Natural Resource Management Plans (INRMPs) are planning
documents that allow the military to implement landscape-level
management of its natural resources while coordinating with various
stakeholders. The Department of the Interior initiated a policy in the
previous Administration, which we have continued, to exclude military
facilities from critical habitat if there was an approved INRMP for
that facility which addressed the species in question. However, a
recent court case has cast doubt on our ability to continue this
practice.
The policy is based on the definition of critical habitat which
states, in part:
...the specific areas within the geographical area occupied by
the species...on which are found those physical or biological
features--(I) essential to the conservation of the species and
(II) which may require special management considerations or
protection;
The exclusion policy was based on a decision that military lands
with an approved INRMP, and other types of land with approved
management policies, did not require special management consideration
because they already had adequate management and, thus, by definition
would not be considered critical habitat.
However, the U.S. District Court in Arizona has ruled, in a case
relating to Forest Service lands (Center for Biological Diversity v
Norton), that this interpretation is wrong, and the fact that lands
require special management necessitates their inclusion in, not
exclusion from, critical habitat. The Court went on to say that the
government's interpretation amounted to our inserting the word
``additional'' into the statute (between ``require'' and
``management''), and that only Congress can so revise the definition.
While the implications of this decision go far beyond military
lands, we felt it important to advise the Committee of it and the cloud
it casts over our continued ability to exclude military lands with
approved INRMPs from critical habitat. We believe this adds additional
weight to the Administration's proposal, contained in the Readiness and
Range Preservation Initiative, for a statutory exclusion.
To avoid possible confusion in light of the Court's ruling, we
would suggest striking the words ``provides the ``special management
considerations or protection'' required under the Endangered Species
Act (16 U.S.C. 1532(5)(A)) and'' from the proposed new section 2017(a)
of the Administration's Readiness and Range Preservation Initiative.
While that phrase is consistent with our interpretation of the law, it
could cause future litigation problems due to the Court's ruling that
the necessity for ``special management considerations or protection''
requires that land to be included, not excluded, from critical habitat.
This change would leave the section with an unambiguous statement that
completion of an INRMP for the species in question precludes
designation of critical habitat at that facility.
Other Recent Critical Habitat Actions
The ESA portion of the Administration's proposal addresses critical
habitat designations. The Department has been able to address a number
of DoD concerns over critical habitat designations.
Critical habitat proposed for the purple amole, a plant, in
California included significant portions of Camp Roberts and Fort
Hunter Liggett. Camp Roberts had a completed INRMP which addressed
conservation of this plant, and we excluded it from the critical
habitat designation on this basis.
While Fort Hunter Liggett was developing an INRMP to address the
plant, it did not have the plan completed at the time we had to make
the decision on the critical habitat designation. However, DoD had
provided us with detailed comments on the adverse impacts to military
readiness that would result from the proposed designation, and these
justified removing the Fort from the critical habitat under section
4(b)(2) of the ESA. We determined that the benefits of excluding the
area exceeded the benefits of inclusion, in that the adverse impacts to
national defense exceeded the benefits that would result from
designating the area as critical habitat.
Although not the basis for our decision, the fact that Fort Hunter
Liggett had a statutory obligation to complete its INRMP, and to
include the plant within that plan, provided us with an additional
comfort level for that exclusion.
Sikes Act and Integrated Natural Resource Management Plans
In Fiscal Year 2002, the Fish and Wildlife Service and state fish
and wildlife agencies assisted in development, review, and/or
implementation of INRMPs for 225 military installations in the United
States.
INRMPs serve as an effective vehicle through which DoD and the
Military Services can comprehensively plan for conservation of fish and
wildlife species. This planning has the potential to address important
needs for resident endangered species, including the protection of
habitat.
We are committed to improving and expanding our existing
partnerships with DoD, the Army, the Navy, the Air Force, and the
Marine Corps. We look forward to opportunities to increase the utility
of INRMPs as tools to maximize the potential benefits of DoD lands to
fish and wildlife conservation while ensuring effective training of our
troops.
Marine Mammal Protection Act
The Marine Mammal Protection Act of 1972 established a Federal
responsibility, shared by the Secretaries of the Interior and Commerce,
for the management and conservation of marine mammals. The Department
of the Interior is responsible for sea otters, walrus, polar bears,
dugongs, and manatees, while the Department of Commerce is responsible
for cetaceans and pinnipeds, other than walrus, including seals, whales
and dolphins. In 1994, Congress enacted a number of amendments to the
statute. One of the provisions, with broad applicability throughout the
Act, added the definition of ``harassment'' as an element of the Act's
take provisions.
Over the last several years, the Fish and Wildlife Service has
worked diligently with the National Marine Fisheries Service (NMFS),
the Marine Mammal Commission (MMC), the United States Navy, and Alaska
Natives to develop proposals that enhance marine mammal conservation,
and provide greater certainty to the regulated public regarding certain
areas of the existing law. During this process, revisions to the
definition of harassment were considered to address a number of
concerns, including those expressed by the Navy. The text of this
proposed amendment to the definition of harassment is contained in
Administration's Range Readiness and Preservation initiative in a way
that only applies to DoD military readiness activities.
We note that this same language applying to all entities, in
addition to other important proposals related to the MMPA, are
contained in the Administration's comprehensive legislative proposal to
reauthorize and amend the Marine Mammal Protection Act. This MMPA
reauthorization proposal was transmitted to Congress at the end of
February. The Department strongly supports enacting this comprehensive
legislative proposal, which will address the concerns of the Navy
regarding harassment.
The Administration's Range Readiness and Preservation initiative
contains two other provisions related to the MMPA--an incidental take
provision related to military readiness activities, and a national
defense exemption. Because the Department of Commerce has the most
interaction with DoD regarding these particular MMPA issues, we will
defer to their comments on these provisions.
Conclusion
In closing, Mr. Chairman, I believe both the Department of the
Interior and DoD have acted cooperatively to implement natural resource
conservation laws passed by Congress. We are aware of the challenges
that have arisen during this endeavor. The Department is prepared to
explore and craft creative solutions to balance our conservation
mandates with military readiness. We look forward to continue work with
the Department of Defense on this vitally important matter.
This concludes my testimony. I appreciate the opportunity to appear
today before the Committee, and I would be pleased to answer any
questions you have.
______
The Chairman. Thank you.
Dr. Hogarth.
STATEMENT OF WILLIAM T. HOGARTH, ASSISTANT ADMINISTRATOR FOR
FISHERIES, NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC
AND ATMOSPHERIC ADMINISTRATION
Dr. Hogarth. Thank you, Mr. Chairman, and members of the
Committee. I am Bill Hogarth, the Assistant Administrator for
Fisheries at the National Oceanic and Atmospheric
Administration. I appreciate the opportunity to testify before
you today regarding H.R. 1835, which proposes amendments to the
Endangered Species Act and to the Marine Mammal Protection Act.
H.R. 1835 is still under review by the Administration.
However, I am prepared to give preliminary views today. As
always, we are happy to work with the Committee to resolve any
concerns.
Over the past several years, NOAA worked closely with the
U.S. Fish and Wildlife Service, the Department of Defense, the
Marine Mammal Commission and others to develop an
administration proposal to reauthorize the MMPA. This
administration MMPA bill was transmitted to Congress in
February of this year.
Revising the MMPA's definition of harassment has been a
major topic in reauthorization discussions. NOAA has
experienced a number of difficulties with interpretation,
implementation, and enforcement of the current MMPA harassment
definition. The current definition impedes NOAA's ability to
adequately enforce the MMPA's take provisions. As it is
currently written, only those acts involving ``pursuit,
torment, or annoyance'' can be addressed. Additionally, the
agency must provide that the act has the potential to either
injure or disturb a marine mammal. Thus, it contains a two-
tiered standard that the agency must meet before it can
properly enforce the Act. H.R. 1835 helps eliminate these
problems.
The current definition is also overly broad and fails to
create a clear threshold for what activities do or do not
constitute harassment. NOAA supports the manner in which H.R.
1835 clarifies the definition of harassment to focus the agency
and the regulated community on the types of harassment that
results in meaningful, biological disturbance to marine
mammals.
The current definition also does not provide an adequate
mechanism to address activities intentionally directed at an
individual or groups of marine mammals that could have
biologically significant impacts.
NOAA supports the third tier of the harassment definition
in H.R. 1835, which makes it explicit that activities that are
likely to disturb marine mammals that are directed at
individual or groups of marine mammals are considered
harassment.
Overall, NOAA strongly supports the proposed amendments to
the harassment definition contained in H.R. 1835, which
effectively are identical to the proposed harassment definition
in the Administration's MMPA bill. H.R. 1835 will apply a clear
standard of harassment to the entire regulatory community and
will result in more meaningful protections for marine mammals
and focus on activities that will result or could result in
significant impacts on marine mammals.
In addition to the harassment language change, H.R. 1835
would also amend several parts of the current legislative
requirements that authorize incidental take legislative
language in section 101(a)(5) of the MMPA. Incidental takes are
those that are unintentional and may occur during otherwise
lawful activities.
Under the MMPA, NOAA fisheries will authorize the takes of
small numbers of marine mammals if the takings will have no
more than a negligible impact on those marine mammal species or
stocks, and not have an unmitigable adverse impact on
subsistence levels of these species.
H.R. 1835 would delete the ``small numbers'' standard in
section 105(a)(5) of the MMPA and would no longer require that
activities under this section be limited to a ``specified
geographic region.'' These proposed amendments do not change
the applicant's requirement of having to show that their
activities are having a negligible impact on the marine mammal
species and populations. Additionally, applicants seeking small
take authorizations for their activities will still have to
abide by all requirements of the Endangered Species Act, the
National Environmental Policy Act, and the Administrative
Procedure Act, where they apply.
These small take applications are currently evaluated based
on the biological significance of the effect their actions
would have on marine mammals. This will not change under the
amendments proposed in H.R. 1835, and NOAA does not believe
that the protection of marine mammals will be decreased under
this bill.
In conclusion, I hope to have the opportunity to work with
the Committee to resolve outstanding issues in this bill, and
to work to improve areas in need of attention in both the MMPA
and the ESA. I look forward to working with the members of the
Committee, your staff, and other interested members of the
public to meet the challenges that we all face in conserving
and protecting marine mammals and endangered and threatened
species.
This concludes my testimony, Mr. Chairman. Thank you again
for the opportunity to testify before your Committee today. I
look forward to answering any questions you may have.
[The prepared statement of Dr. Hogarth follows:]
Statement of Dr. William T. Hogarth, Assistant Administrator for
Fisheries, National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, U.S. Department of Commerce
Mr. Chairman and Members of the Subcommittee, thank you for
inviting me to testify today on H.R. 1835. I am Dr. William T. Hogarth,
Assistant Administrator for Fisheries at the National Oceanic and
Atmospheric Administration (NOAA). I appreciate the opportunity to
testify today regarding the bill, which proposes amendments to the
Endangered Species Act (ESA) and the Marine Mammal Protection Act
(MMPA). NOAA Fisheries shares jurisdiction over implementation of both
of these statutes with the U.S. Fish and Wildlife Service (USFWS). NOAA
Fisheries administers the MMPA for approximately 150 stocks of
cetaceans, seals, and sea lions, while USFWS has responsibility for
walruses, manatees, polar bears, dugongs, and sea otters.
H.R. 1835 was recently introduced and is still under review by the
Administration. It includes some provisions that are similar to the
Administration's Readiness and Range Preservation Initiative. NOAA
Fisheries has not yet completed a thorough review of the bill but we
are prepared to give preliminary views today. As always, we are happy
to work with the Committee to resolve any concerns.
MARINE MAMMAL PROTECTION ACT
Definition of Harassment
Over the past several years, NOAA worked closely with the USFWS,
Department of Defense, Marine Mammal Commission, and others to develop
an Administration proposal to reauthorize the MMPA. This Administration
MMPA reauthorization bill was transmitted to Congress in February 2003.
Revising the MMPA's current definition of harassment has been a
major topic in reauthorization discussions. NOAA strongly supports the
proposed amendments to the harassment definition contained in H.R.
1835. These amendments are effectively identical to the proposed
harassment definition in the Administration's current proposed MMPA
bill, as well as the MMPA reauthorization proposed by the Clinton
Administration. We appreciate the work the Committee has already done
to reauthorize the MMPA and look forward to working with you to achieve
timely passage of a bill.
The definition of harassment, a critical component of the ``take''
prohibition, which is also defined in the Act, has broad applicability
throughout the MMPA. The current definition in the MMPA separates
harassment into two levels. Level A harassment is defined as, ``any act
of pursuit, torment, or annoyance which has the potential to injure a
marine mammal or marine mammal stock in the wild.'' Level B harassment
is defined as, ``any act of pursuit, torment, or annoyance which has
the potential to disturb a marine mammal or marine mammal stock in the
wild by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering.''
NOAA has experienced difficulties with interpretation,
implementation, and enforcement of the current MMPA harassment
definition. First, the definition is limited to acts involving
``pursuit, torment, or annoyance.'' Second, the definition is overly
broad and does not provide a clear enough threshold for what activities
do or do not constitute harassment. Third, the definition does not
provide an adequate mechanism to address activities intentionally
directed at individual or groups of marine mammals that could have
biologically significant impacts. H.R. 1835 and the Administration's
MMPA reauthorization bill both propose very similar revisions to the
current definition that would address each of these concerns.
Inappropriate Two-Tiered Standard: The current definition of
harassment impedes NOAA's ability to adequately enforce the MMPA's take
provisions. As the definition is currently written, only those acts
involving ``pursuit, torment, or annoyance,'' terms that are undefined
in the MMPA, can be addressed. Second, the agency must prove that the
act has the potential either to injure or disturb a marine mammal.
Thus, the current definition contains a difficult two-tiered standard
that the agency must meet before it can prosecute anyone who takes a
marine mammal by harassment. As a result, NOAA agrees with the need to
eliminate the phrase ``pursuit, torment, or annoyance'' from the
harassment definition.
Overly Broad: The current definition of harassment is both broad
and ambiguous and, therefore, it fails to create a clear threshold for
acts that do and do not constitute harassment. As a result, it is
difficult for the agency to prioritize its resources to deal with the
types of harassment that have the most negative effects on marine
mammals. We are also concerned that the existing definition could
result in unnecessary administrative burdens on the regulated
community. One could argue, for instance, that any activity has the
potential to disturb a marine mammal by causing disruption of
behavioral patterns, from humans walking along a pier near a group of
sea lions causing them to stop feeding and raise their heads, to
driving a ship that causes a wake that dolphins choose to swim in. As
interpreted by some courts, the current definition does not distinguish
biologically significant, harmful events from activities that result in
de minimis impacts on marine mammals.
The lack of a clear threshold for harassment in the definition
blurs the distinction between those activities that cause insignificant
impacts and those that cause truly harmful impacts to marine mammals.
This has negative consequences on marine mammals, NOAA, and the
regulated community. First, activities that result in meaningful
biological disturbance to marine mammals do not receive the degree of
attention that they warrant. Second, NOAA Fisheries must devote its
already limited resources to addressing activities and issues that
result in biologically insignificant impacts on marine mammals. Third,
the lack of clarity in the definition imposes unnecessary regulatory
burdens on the regulated community, who are forced to apply for permits
for often harmless activities to prevent potential legal consequences.
NOAA supports the manner in which H.R. 1835 clarifies the definition of
harassment to focus the agency and the regulated community on types of
harassment that result in meaningful biological disturbance to marine
mammals, rather than those acts that are not likely to have
biologically significant impacts on marine mammals.
Lack of Emphasis on Directed Impacts: NOAA supports the third tier
of the harassment definition in H.R. 1835. This provision makes it
explicit that activities that are likely to disturb marine mammals that
are directed at individual or groups of marine mammals, such as closely
approaching, touching, or swimming with dolphins in the wild, are
considered harassment. Members of the public and commercial operators
who intentionally interact with wild marine mammals either by boat, in
the water, or on land disturb the natural behavior of the animals. They
also do a great disservice to these animals over time by habituating
them to humans and vessels. In addition, humans who attempt to closely
approach, chase, swim with, or touch wild marine mammals place
themselves at risk since wild animals are unpredictable and can inflict
serious injury if threatened or afraid.
Overall, NOAA feels the proposed definition of harassment contained
in H.R. 1835 will apply a clearer standard of harassment to the entire
regulatory community and result in more meaningful protections for
marine mammals. Additionally, the proposed definition conceptually
mirrors recommendations by the National Research Council (NRC) for
regulations that are based on the potential for a biologically
significant impact on marine mammals. In 2000, NRC pointed out flaws in
the current definition of harassment, contending that since science is
improving in terms of its ability to distinguish between activities
that have significant negative effects and those that have
insignificant effects on marine mammals, the harassment definition
should be amended to reflect this. The virtually identical harassment
definitions contained in the Administration's MMPA bill and H.R. 1835
will both achieve this goal of focusing on activities that will result
or could result in significant biological impacts on marine mammals.
Exemption of Actions Necessary for National Defense
H.R. 1835 would allow the Secretary of Defense, after consulting
with the Secretaries of Commerce and the Interior, to exempt any action
or category of actions undertaken by the Department of Defense (DOD)
from compliance with any provision of the MMPA if it is determined to
be necessary for national defense. These exemptions would be granted
for up to two years, with additional two-year exemptions possible after
further consultation between the Secretaries. While such a provision
could result in reduced protections for marine mammals during times of
heightened national security, such a change to the MMPA would be in
line with exemptions to protections for endangered and threatened
species under the ESA for national security purposes.
Incidental Taking of Marine Mammals in Military Readiness Activity
H.R. 1835 would amend several parts of the current legislative
requirements that authorize incidental take (section 101(a)(5) of the
MMPA). Incidental takes are those that are unintentional and may occur
during otherwise lawful activities.
The MMPA established a moratorium on the taking of marine mammals
in U.S. waters by any person, and by those subject to U.S. jurisdiction
on the high seas. In 1981, Congress amended the MMPA to allow ``small
take'' authorizations for otherwise lawful activities. Under the
present scheme, NOAA Fisheries will authorize the takes of small
numbers of marine mammals if the takings will have no more than a
negligible impact on those marine mammal species or stocks, and not
have an unmitigable adverse impact on subsistence harvests of these
species. Through regulation, NOAA Fisheries has defined ``negligible
impact'' as ``an impact resulting from the specified activity that
cannot be reasonably expected to, and is not reasonably likely to,
adversely affect the species or stock through effects on annual rates
of recruitment or survival.''
In 1986, Congress amended both the MMPA, under the small take
program, and the Endangered Species Act to authorize takings of
depleted (and endangered or threatened) marine mammals, provided that
the taking (lethal, injurious, or harassment) had a negligible impact
on small numbers of marine mammals.
H.R. 1835 would delete the ``small numbers'' standard in Section
101(a)(5) of the MMPA and would no longer require that activities
authorized under this section be limited to a ``specified geographic
region.'' These proposed amendments do not change the applicant's
requirement of having to show that their activities are having a
negligible impact on the marine mammal species and populations.
Additionally, they will have to demonstrate that their activities will
not have an unmitigable adverse impact on the availability of such
species or stocks for subsistence uses pursuant to the MMPA. These
analyses are the key elements to maintaining the health of marine
mammal species and are the premise for small take authorizations under
the MMPA. Applicants seeking small take authorizations for their
activities will still have to abide by all requirements of the
Endangered Species Act, the National Environmental Policy Act, and the
Administrative Procedure Act, where they apply.
Thus, to make the requisite negligible impact determination and to
comply with other environmental laws, NOAA Fisheries would still have
to know what activities would be taking place, as well as when and
where they would occur under the language proposed by H.R. 1835. These
small take applications are currently evaluated based on the biological
significance of the effect that their actions would have on marine
mammals. This will not change under the amendments proposed in H.R.
1835, and NOAA does not believe that protection of marine mammals will
be decreased under this bill.
CONCLUSION
I hope to have the opportunity to work with the Committee to
resolve outstanding issues in this bill and to work to improve areas in
need of attention in both the MMPA and ESA. I look forward to working
with Members of the Committee, your staffs, and other interested
members of the public to meet the challenges that we all face in
conserving and protecting marine mammals and endangered and threatened
species.
This concludes my testimony. Thank you again for the opportunity to
testify before your Subcommittee today. I would be happy to answer any
questions you may have about my testimony or related issues.
______
The Chairman. Thank you.
Mr. Manson, you heard extensive testimony earlier on some
of the problems that the military is currently having. The idea
under this legislation is to codify a lot of the administrative
things that you and your predecessor attempted to do to allow
the military to work within the Endangered Species Act. But a
question has come up during the previous testimony.
Is it your understanding that, under this legislation,
would the military in any way be exempt from the Endangered
Species Act? Would they be able to kill endangered species and
destroy habitat under this bill?
Mr. Manson. There is nothing in this legislation that would
exempt the military from the Endangered Species Act.
The Chairman. So it is your understanding, from your years
of experience, both at the State and Federal level, that one of
the purposes of the military would continue to be to manage
their lands in a way that protects endangered species?
Mr. Manson. That would be my understanding.
The Chairman. Can you also help to clarify what exactly is
going on right now--and we had extensive testimony dealing with
Camp Pendleton, and I know you're familiar with Camp
Pendleton--about the restrictions that are being placed on
their ability to train now and the efforts that they're making
to protect the species on that particular base?
Mr. Manson. Well, I think that General Bowdon gave a far
superior description of that than I could. There were a lot of
numbers tossed around. I heard 1 percent in one case and some
other numbers about the amount of critical habitat.
I think that it's important to note, as I think General
Bowdon did, that he was talking about the 57 percent as
potential critical habitat. There are a number of endangered
species and overlapping potential critical habitat designations
at Camp Pendleton, so there is more than one potential
designation out there. In fact, there are at least two that are
pending right now, in addition to the ones that have been
previously made.
The Chairman. Let me ask you on a little bit different
topic. A lot of questions keep coming up about invoking the God
Squad and having them come in, as well as the military just
asking for a national security exemption.
If a God squad request was made and they came in and
exempted an activity that the military is carrying out, for a
specific endangered species, does that not give them an
exemption from the Endangered Species Act in that case?
Mr. Manson. Well, for a particular species, and with
respect to a particular activity, a particular project, it
would.
I should note that, in the view of many, the Endangered
Species Committee, also known as the ``God Squad'', is a very
cumbersome procedure. It takes quite a bit of time and has only
been invoked perhaps three times in the last 30 years because
of the cumbersome nature of that procedure.
The Chairman. Well, to follow along with some of the line
of questioning of my colleagues, in the case of Camp Pendleton,
18 separate endangered species, hundreds if not thousands of
different activities, they would have to either request a
national security exemption for each of those activities, or
invoke the ``God Squad'' to come in on each and every one of
those cases, instead of just going through what you termed a
holistic approach of adopting an INRMP that manages endangered
species on the entire property.
It would seem to me that, if you really do care about
protecting endangered species, that that would be a better
approach than going along some path of just asking for
exemptions from the Endangered Species Act.
Mr. Manson. Well, it certainly is my view that the INRMP
process is a superior process, for a couple of reasons. One, it
addresses multiple species instead of just individual species;
two, it requires active management of the species and the
habitat; three, it's a process that involves not only the Fish
and Wildlife Service but the relevant State wildlife agencies.
So, to that extent, you get a lot of input and a lot of
expertise about the management of the species and the habitat.
The bottom line about the INRMP process is that it does
something for the conservation of the species. It's not an
exemption. It keeps the military actively involved in the
management of species. It keeps the Fish and Wildlife Service
and the State actively involved in the management of species on
a basis that is well-recognized in the conservation community.
The Chairman. I appreciate your testimony. Unfortunately,
my time has expired.
Mrs. Christensen.
Mrs. Christensen. Thank you, Mr. Chairman. I appreciate
both of you for your patience and the waiting throughout the
previous panel and our questions.
I would like to ask a question that was asked of the
previous panel, because I don't think it's ever been answered,
and that is the Administration's position on H.r. 1835. Judge
Manson, are you in a position to speak on behalf of the
Administration? Are you representing the Administration on this
bill?
Mr. Manson. Well, I have testified in support of the INRMP
process. I'm not aware that the Administration has a position
on the overall bill.
Mrs. Christensen. OK. The bill's provisions would be
extended to other Federal agencies. This question would go to
both you and Dr. Hogarth. Are both of you supportive of that?
Mr. Manson. The INRMP process?
Mrs. Christensen. No, the changes, that 2(a) would apply to
all Federal agencies. Are you in support of that?
Mr. Manson. As it's written, it appears that that would
apply to all Federal agencies, yes.
Mrs. Christensen. Is the Department of Interior in support
of that?
Mr. Manson. The Administration, as far as I know, doesn't
have a position on that provision of the bill.
Mrs. Christensen. We are having a bit of difficulty.
Tomorrow, I believe, is the day we're going to be voting on
this bill and we're apparently going to be doing so without a
clear position from the Administration.
Dr. Hogarth, do you have any clarification on that?
Dr. Hogarth. For the Marine Mammal Protection Act, as I
testified, we are very supportive. We think it is very close to
what the--you know, close to it. But the Administration itself
has not come out point-blank, but I think if you look at what
we have submitted as an administration bill, and the nature of
H.R. 1835, you'll see they are very similar. Effectively, they
seem to be the same.
As far as the Endangered Species Act, there is no
administration position, and we also have concerns we have
addressed that we would think need to be discussed with the
Committee.
Mrs. Christensen. Dr. Hogarth, on page 4 of your testimony
you talked about H.R. 1835 deleting small numbers and that it
would have--I think you're saying--I guess my question is, are
you saying there that the changes in H.R. 1835 will not
undermine the Endangered Species Act?
Dr. Hogarth. That's correct. We feel like we have to look
at negligible impact--I mean the MMPA, not the Endangered
Species Act. In the MMPA, we have to look at--
Mrs. Christensen. For marine mammals.
Dr. Hogarth. Right. We have to look at the negligible
impact, and small numbers would be something you would look at.
It depends. On California sea lions, a small number would be a
large number. If you look at the Hawaii monk seals or right
whales, small numbers would be extremely small. So the
evaluation we have to do is the negligible impact to the
population.
Mrs. Christensen. I may have a follow up to that later on.
Mr. Manson, I have one other question. The military, in
their responses, seemed to--what I gleaned from that was that
the processes that were in place worked, except for the
litigation that followed in many cases, and that's what their
concern was about. In reading your testimony, I tried to get
through it and really didn't read it through completely. It
seemed that you were saying that the litigation arose largely
over the lack of resources that the Fish and Wildlife Service
had and their inability to complete their studies and their
reports on a timely basis.
If that's the case, is that the cause of the litigation,
rather than some unclarity in the law that this bill purports
to try to clear up?
Mr. Manson. That is certainly a major issue with the
designation of critical habitat. I think you also heard from
the military witnesses that there are challenges, there are so-
called merits challenges to our critical habitat designations
as well, where people don't like the nature or scope of our
designations. That is also a significant issue in terms of
litigation.
Mrs. Christensen. I think, by and large, they all testified
that they had a very good working relationship with Fish and
Wildlife and--
Mr. Manson. That's true.
Mrs. Christensen. --and that they worked very
collaboratively.
Just a follow up to Dr. Hogarth. You also said, to the
extent that the Navy and other action agencies can plan
sufficiently far in advance of the activities and provide us
with adequate time to work them at the earliest possible
stages, the implications of the permit process should be minor.
You said this at last year's House Armed Services Committee
hearing on environmental issues.
Again, is it an issue of the timeliness of their requests
in the permitting process, rather than problems in how the law
is worded that is creating the problem? That's what that seems
to suggest to me, that it's the time to complete the processes.
Dr. Hogarth. Thank you. I think there are a couple of
things that we have. There is a resource issue within the
agency. We have about two people to do all this work. But I
think there are some problems that have arisen with lawsuits,
such as small numbers and things like that, which we were
trying to--that we've seen since then, which H.R. 1835
addresses. So I think there's a resource issue within the
agency, but there is also some clarification that you made to
the MMPA which I think will help alleviate some of the other
problems.
Mrs. Christensen. We haven't made it yet.
Thank you, Mr. Chairman.
The Chairman. The gentlelady's time has expired.
Mr. Gilchrest.
Mr. Gilchrest. Thank you, Mr. Chairman.
Judge Manson and Dr. Hogarth, welcome to the hearing room.
You probably don't testify very often on Capital Hill, so this
is a wonderful opportunity to meet all of us.
What we are trying to do here today--and Judge Manson, you
have testified to INRMPs in the past. I think INRMPs are a
positive and more comprehensive approach to understanding the
living resources. To some extent, we want to make sure that the
hearing we have today is appropriate to the problems that DOD
faces and what researchers have difficulties with as well as
far as marine mammals are concerned. We want to make sure that
this bill, as attached to the DOD authorization, does not go
beyond what is necessary. We can do that in other avenues. We
certainly want to restore the vigorous capacity for the
necessary training on military bases around the country, and we
also, in so doing--we've heard the word ``balance'' here on a
number of occasions--we certainly want to balance that with the
ability to maintain and restore the prodigious bounty of God's
creation without further degradation or disruption or the loss
of habitat upon which we, as people, ultimately depend.
So I have three specific questions. I think the first will
go to Dr. Hogarth, dealing with the language--I think we'll
call it title or level--it used to be Level B harassment, and
now I guess it's Level 2 harassment--the language that's in the
legislation now and the language that was, I think, recommended
by the NRC.
Dr. Hogarth, I would like some clarification why or if you
prefer the language that's in the legislation now, why do you
think that's more clear and more definitive as far as the broad
protection to marine mammals is concerned?
We've heard from scientists on the number of definitions
for harassment, and we understand the problems that are out
there, and so the language in the legislation deals with the
term ``significant'', abandoned or significant. The language
that was recommended by NRC--and I'll read it-- ``...has the
potential to disturb a marine mammal or marine mammal stock in
the wild by causing meaningful disruption of biologically
significant activities, including, but not limited to,
migration, breeding, care of the young...'' and so on. That was
the language recommended by NRC.
The language that is in the bill, which I'm going to ask
whether you prefer that and why, takes out ``meaningful
disruption of biologically significant activities'' and just
includes ``abandoned or significant''.
Could you comment on that, Dr. Hogarth?
Dr. Hogarth. I think what we tried to look at was to make
sure we--I'm sorry--that we looked at the NRC definition very
clearly. It does not have a Level A. NRC goes strictly to a
Level B for the potential to disturb.
We looked at it and added actions directed at a marine
mammal, and that's not NRC. And we added actions that affect
the marine mammal but at a significant level, but we didn't use
the biological because we were concerned about the term
biological to avoid problems that were limited only to a strict
definition of biology. You know, that does seem overly broad,
and it may not include the ecological factors or other factors
that may be determined, such as speed boats. Something that
would continue to run up out of the rookery, things like that,
would that be biological or would that be dislocation, would
that be disturbance? So we felt like--
Mr. Gilchrest. You're saying that ``meaningful disruption
of biological activities'' is more vague?
Dr. Hogarth. We felt that the destruction of natural but
not having the meaningful, that we took a term out that we
would end up arguing in court. We said the disruption of
natural, biological patterns, including but not limited to, so
we had some of the same definitions but we just took out the
word ``meaningful'' because, again, you get into court--like
small numbers, what is small numbers, versus what is
meaningful, you know, to the different populations. So we felt
like it would be much easier for us in court than to have the
``meaningful''.
Mr. Gilchrest. My time is up. Maybe we'll have a second
round.
Thank you, Mr. Chairman.
The Chairman. Mr. Udall.
Mr. Tom Udall. Thank you, Mr. Chairman.
First of all, Mr. Manson, it seemed to me you were taking a
position that--Well, let me start here. First of all, why no
position on the bill, Judge Manson?
Mr. Manson. I'm not in charge of developing the entire
administration's position. I can't answer that for you. The
process is larger than me.
Mr. Tom Udall. Don't you think it's important that the
Administration have a position on something this sweeping?
Mr. Manson. Well, certainly the Administration likes to
have positions on important bills, but the process, as I said,
is beyond me, so I don't have an answer to that particular
question.
Mr. Tom Udall. Have you alerted others in the Department
that this is something significant and they know about it, or
is everybody too busy to take a position, I guess?
Mr. Manson. I don't know that that's the issue. I know that
the bill has been with us only a short period of time, so...
Mr. Tom Udall. So isn't it fair to say that when a
significant issue comes up, if you've had something for a week,
you would jump on it and you would take a position if you think
it's important. Your agency is in the business of administering
these laws. You have the expertise. If this is important--you
know, a week is a significant amount of time for somebody to
look at and be able to take a position.
Can you tell me how soon anybody is going to take a
position on this?
Mr. Manson. No, sir, I'm afraid I can't. In fact, the
development of administration positions is even, as I
understand the process, beyond the Department.
Mr. Tom Udall. How about Dr. Hogarth. Why no position on
this?
Dr. Hogarth. This bill affects both the Secretary of
Interior and Secretary of Commerce particularly, and there is
some questions that I think have to be addressed between the
two of us, and then there were questions that I think we have
for clarification in the bill. So a week in government, to me,
is not a very long time for the time I've worked here. I think
it's going to take a little while to do that, and then to go
through the approval process that we have to go through.
We have discussed it. I don't think it's a matter of that--
I don't know that we knew your timeframe was tomorrow. I didn't
know that. I can't answer the question totally as to why, but I
know it's a major bill and it's one that affects two agencies.
They would have to both go through the process of getting the
Administration position.
Mr. Tom Udall. Both of you--Were you both here during the
testimony of the military panel?
Mr. Manson. I was.
Dr. Hogarth. You were in the room the whole time?
Mr. Manson. Yes.
Dr. Hogarth. Yeah.
Mr. Tom Udall. OK. Well, you heard me ask the question
about the language ``insofar as practical and consistent with
their primary purposes'', where I quoted the language that was
being inserted into the Endangered Species Act, making it the
policy of the Congress, that ``insofar as practical and
consistent with their primary purposes''.
Don't you think that's a significant change in the policy
of the Congress on the Endangered Species Act? Or do you
disagree with the position I outlined there?
Mr. Manson. Well, without ascribing a value one way or
another to it, just on their face, the words are significant.
Yes, I would agree with that.
Mr. Tom Udall. Dr. Hogarth?
Dr. Hogarth. Yes, sir, I think they are, because it gets
into whether section 7 and our jeopardy still applies, whether
it applies only to DOD but all Federal agencies. Because of all
this, it's significant and there are some questions we have
there, yes.
Mr. Tom Udall. And that's the part your agency and the
Department of Commerce isn't taking a position on?
Dr. Hogarth. It doesn't mean we won't take a position. We
just haven't had the opportunity yet to get that position
clear, you know, cleared.
Mr. Tom Udall. Let me just say that I think it would really
help this Committee if your agencies, working through OMB and
whatever other processes actually came out and spoke out before
the markup as to what your position is on this bill, especially
these crucial issues like section 2(a) and the consultation and
other questions that have been raised here, I hope you will
take that back to your respective agencies and try to urge them
to move along a little more quickly.
Thank you very much, Mr. Chairman.
Mr. Gibbons. [Presiding.] Thank you very much, Mr. Udall. I
certainly hope Mr. Udall isn't implying that if the
Administration supports this bill, he will, too.
[Laughter.]
Mr. Tom Udall. No, not in any way. I want to know what the
Administration's position is. I'm not going to give a blank
check there, Mr. Gibbons. But I am happy to hear their
position. They've got the expertise.
My real point was, don't you think, in something this
significant, where these agencies have a huge amount of
expertise, that they could weigh in on this kind of thing. I
mean, they've got lawyers over there. This is a provision in
the law that was in 1966. It was clearly litigated, there's
legislative history. I mean, there's an enormous amount that
has gone on here. I would just hope they would shed a little
light with that great expertise you have at the Department of
Commerce and Department of Interior.
Thank you very much, and thank you for the courtesy of
letting me go a little longer here.
Mr. Gibbons. Mr. Walden.
Mr. Walden. Thank you, Mr. Chairman.
I was somewhat tongue-in-cheek intrigued by my colleague's
comment about 7 days being ample time for several agencies and
the Administration to take a position on a bill this
complicated, when last week I think they had 6 days to review
our forest health bill and we heard nothing but how it was
being rushed through with very little time to be able to be
considered by members of this august committee. So I just put
that out there to think about.
Judge Manson, what's the length of time for the military to
receive a decision on applications seeking to use critical
habitat for military exercises? How long does that take, in
your experience?
Mr. Manson. Well, for example, if they want to use critical
habitat for an exercise, then they would have to--
Mr. Walden. From start to finish.
Mr. Manson. They would have to undergo consultation with
the Fish and Wildlife Service under section 7 of the Act. There
are some statutory deadlines that run about 135 days in theory.
In practice, depending upon the circumstances, it could be
longer than that, and depending upon the circumstances, it
could be significantly longer.
Mr. Walden. Do they have to go through a full NEPA process?
Mr. Manson. No. Well, it depends. I'll put it that way. The
section 7 process itself, does not require an additional NEPA
process. It may be that something they are doing will require a
NEPA process, independent of the section 7 process.
Mr. Walden. OK. So they go through the application process.
How many days again does it take, 130 you said?
Mr. Manson. A hundred-and-thirty-five in statutory theory.
Mr. Walden. OK. Now let's get to reality. Statutory theory.
Then people have the right to appeal after that?
Mr. Manson. Well, no. Certainly there is the possibility
that someone could find a way to bring a suit about a
particular activity that has gone on, but there is no direct
appeal by a citizen.
Mr. Walden. But litigation could follow?
Mr. Manson. There's a possibility that litigation could--
Mr. Walden. And does that happen very often?
Mr. Manson. That happens occasionally, yes.
Mr. Walden. What kind of time line then does that entail?
Mr. Manson. There is no way to estimate the average length
of time that litigation over something that the military might
do would take.
Mr. Walden. So a minimum of 135 days, plus the potential
for litigation, which could go on for a very long time.
It has been stated that the proposed changes to the
definition of ``harassment'' will help the agencies better
enforce the MMPA. Can you give us some examples, either one of
you, of how that might work?
Dr. Hogarth. I think, from the standpoint--right now, first
of all, you've got to prove that the act is one of pursuit,
torment and annoyance. The problem we're having with the
attorneys is that they're losing most of these cases, because
you've got to prove the intent first.
Mr. Walden. Losing most of the cases of harassment--
Dr. Hogarth. Right, because the vagueness of having to
prove whether a person had the intent or not, so that's the
first thing. You've got to prove that the act was one of
pursuit, torment and annoyance, and then you have to have the
intent of whoever did it.
Then you have to prove that the act had the potential to
injure or disturb the marine mammal, which is somewhat easier
to do. But first you have to go through whether the act is one
of--you know. So we've been trying to--The MMPA does not
identify or have any definitions or identify the terms
``pursuit, torment or annoyance.''
Mr. Walden. Are you doing research on the noise issue
involving mammals?
Dr. Hogarth. We are working on the noise issue.
Mr. Walden. Are there any findings yet?
Dr. Hogarth. Well, we're in court on one, so I can't say
much about the LFS sonar, yeah. But we continue to work on
noise issues in marine mammals. There is work being funded,
some at the University of Hawaii and other places, dealing with
noise, yes, sir. Low level does not appear to be a problem.
Mr. Walden. In terms of the MMPA, is the intent the first
threshold you have to meet in order to fall under the Act of
actually harassing a mammal? Is it the intent, or is it the
dislocation of their typical--
Dr. Hogarth. That's why we agree with the definition,
because now it says if you actually--you know, you don't have
to prove the intent. If it's disturbing it, if you can actually
show there's a difference in the behavior of the mammal, we
feel like the new definition gets into this. It says disturbs
or is likely to disturb the marine mammal by cause or
disruption of their behavior.
Some of the old definitions, for example, if a dolphin came
up in the wake of a boat, would that be disturbing the dolphin?
That's one of the issues that came up.
Mr. Walden. I guess that's where I was headed with this.
Does this definition strictly apply to the military's
involvement--
Dr. Hogarth. No.
Mr. Walden. --and if not, then why isn't commercial
fishing, commercial transportation in and out of the harbors,
tell me that's not having a tremendous effect on habitat.
Dr. Hogarth. We have take reduction teams looking at marine
mammals for fishing efforts. We have a team set up now to look
at right whales, look at ship traffic. But there are many
things we're doing under marine mammals.
You know, swimming with dolphins is a big issue, for
example. That's a big issue in Florida. A lot of people call
in. But if you go in the water and a dolphin swims by, is that
harassment? That's the type of thing--Now we're saying to
disturb the dolphin, the new definition. You have to show that
it was disturbed and a potential for injury.
Mr. Walden. If I could just clarify briefly one other
question that I had.
You made the statement, I believe, that there are two
people within your agency to do all this work. Is that all the
military work?
Dr. Hogarth. That's correct.
Mr. Walden. And you have--How many people are in your
agency?
Dr. Hogarth. In our agency, overall, there is about 2,600.
But in protected resources, looking at incidental take, and the
military, yes.
Mr. Walden. Do you feel that's an adequate allocation of
resources?
Dr. Hogarth. No, sir. Well, it's what we have in our budget
to deal with. There are two people for marine mammal, you
know--
Mr. Walden. Have you requested others in your budget
process? I'm sorry, I have run out of time. Thank you.
Dr. Hogarth. Yeah, we continue to look at the amount of--
the President's budget, you know, we support. But there are a
lot of issues that you have to put priorities on, no doubt
about it.
Mr. Gibbons. Thank you, Mr. Walden.
Mr. Grijalva.
Mr. Grijalva. Thank you, Mr. Chairman.
Let me follow up with Dr. Hogarth, if I may, on the point
that was being made about the two staff, the full-time
employees on staff to review Navy permitting requests under the
Act. I think the question was, would increased staffing help
expedite the process, and would that address some of the Navy's
concerns that we heard about today?
Dr. Hogarth. First of all, I think, you know, we have two
people doing marine mammal assessments. That's what I was
addressing. You know, it would speed up the timing. We are
working with the military quite a bit, particularly the Navy,
on looking at programmatic EISs and programmatic section 7's
and all, because we think if we can get to this issue, that we
could get them ahead of time and do a programmatic or help the
process.
Additional manpower would definitely help us, and we are in
the process now, working with the Navy, on an MOU to improve
the processing and how we can get it done quicker. Sometimes it
takes--I think the least we've had on some of the issues, it
has been probably six to 9 months. It depends on the issue
that's involved.
Mr. Grijalva. So the steps you indicated have been taken at
this point, the planning--
Dr. Hogarth. That's correct.
Mr. Grijalva. --the MOUs. And from your experience, those
increased resources--let's say increased resources are
available for additional staffing, which you earlier indicated
would be important, that would initiate more advanced planning
and it would foster a more efficient, if not more rapid permit
application review process, would it not?
Dr. Hogarth. It would, yeah. Yeah, it would, yes, sir.
Mr. Grijalva. Could you surmise for me or evaluate for me
from the discussion today how much is a problem of process and
how much is a problem of definition?
Dr. Hogarth. Well, as you heard today, I don't think you
heard--Most of the testimony I heard today was directed toward
the encroachment issue, which is not the issue we addressed,
the management plans dealing with the Department of Interior.
The issue that we have so far with the Navy has been the
court case on small numbers and things like that, that we've
been trying to work through. But I think most of our problems
with the Navy, you know, marine mammals, has been the court
system and the identification of some of the terms and how they
were interpreted.
Mr. Grijalva. But process is still an issue?
Dr. Hogarth. Process is still an issue, to make sure you
get this done timely, yes, sir.
Mr. Grijalva. Two more for both the witnesses, if I may,
either/or.
How many times has the Secretary of Defense used the
provision that's already in there since 1998, for activities
that fall under the scope of your agency, the provision that
deals with the Executive branch and suspending administrative
actions pending consultation between the Secretary of Defense
and the head of the action agency, in this instance you two
individuals?
Mr. Manson. I believe Mr. Cohen testified earlier today
that that had never been used. I concur with his testimony.
Mr. Grijalva. So if it's never been used, I would assume
there has never been a denial, at least specifically with the
Navy, correct?
Dr. Hogarth. That's correct. Remember, the MMPA does not
have the same exemption for national security that is the ESA.
The MMPA does not--
Mr. Grijalva. So specifically for an issue of incidental
harassment, the Navy would come to the Department of Interior
and to your agency. That request has never been made, or has it
ever been denied?
Dr. Hogarth. It's never been made.
Mr. Grijalva. The Public Law does apply to all agencies,
correct, P.L. 105-85?
Dr. Hogarth. I will have to get back to you. I'm not sure
of that.
Mr. Grijalva. Thank you.
Thank you, Mr. Chairman.
Mr. Gibbons. Mr. Cole.
Mr. Cole. Thank you very much, Mr. Chairman, and thank you,
gentlemen. You have been here a long time and thank you for
your patience and your indulgence.
A couple of general questions, frankly, directed to both of
you. And you addressed this, Judge Manson, in your initial
testimony, but I think it's an important point. How would you
rate the Department of Defense in terms of their efforts to
comply with the Endangered Species Act and the various
environmental regulations and obligations that they have?
Mr. Manson. With respect to the Endangered Species Act,
which we deal with, they have been very good. They have been
outstanding stewards of habitat and species.
Dr. Hogarth. I have been working with the Navy primarily,
and I worked with them when I was in the Southeast Region, and
dealt with them on Vieques, which they did everything possible
that we could ask for. And since I've been here as Assistant
Administrator for NOAA, we have had an excellent working
relationship. Like I said, the MOUs, and we have regular
meetings with them. So I think it's a pretty good working
relationship.
Mr. Cole. Do either of you have any concern that, if this
legislation were enacted, that that attitude would change or
that they might be less cooperative or less diligent in
fulfilling their obligations under the law?
Mr. Manson. I have no way to accurately predict that, but I
have no reason to believe that that would change. Their
stewardship has remained at a high level over a number of
years, through a lot of different regulatory schemes. So I
would certainly expect they would continue to do a good job.
Dr. Hogarth. I agree. I think the MMPA changes would only
clarify things and get them to work with us maybe even more
because of some of the ambiguities taken out. The ESA concerns
we have to clarify that, whether they would have to work with
us again or not is I think the issue we would have.
Mr. Cole. Again, to both of you, we have had a concern
raised--and I think it's a legitimate question--that we
regularly say, if the situation is so good, cooperation has
been high, people have been doing their best on both sides of
this divide to do the right thing, why--and again, you touched
on this a little bit in your testimony--but why do you think
these changes would be merited?
Mr. Manson. Well, from my point of view, two reasons. One
is, there is the threat of litigation over some of the things
that have been done on the basis of mere policy between the
Department of the Interior and the Department of Defense.
But the second, more fundamental and more compelling reason
is that we believe these things that we've done on a policy
basis, on an administrative basis, represent good public policy
choices. And if they are good public policy choices for
conservation, then they ought to be codified. They ought to be
given the sanction of this Congress.
Mr. Cole. A couple more questions, if I may, Mr. Chairman.
It will just take a second.
Mr. Udall raised a good point here about whether or not we
have an administration position on such an important piece of
legislation. Hopefully we will have one before the process is
completed. First let me ask this:
To your knowledge, did the authors of the legislation work
with people in the Executive branch and some of the experts
that you have there, obviously with the enormous experience you
do have in dealing with these kind of issues, when they were
drafting their legislation?
Mr. Manson. I can't say that I know that. I came back from
an out of town trip and found this legislation and was told I
was going to testify, so that's what I know about it.
Mr. Cole. OK.
Dr. Hogarth. I do think some of our people may have met
with some of the staff members before it was completely
drafted. I was not there.
Mr. Cole. Do either of you have any reason to believe that
the Administration at this point is going to take a position
against the legislation question?
Mr. Manson. I can't say. I don't know.
Dr. Hogarth. I can't say.
Mr. Cole. I yield back my time. Thank you, Mr. Chairman.
Again, I very much appreciate you staying this late with us.
Thank you.
Mr. Gibbons. Thank you very much, Mr. Cole.
Gentlemen, I also appreciate the great amount of time you
spent with this Committee, trying to help us better understand.
I have been advised by staff, in answer to Mr. Grijalva's
question, that 105-85 only applies to DOD and DOI.
Let me ask just one question of both of you, sort of a
generic question, and then we will allow you to exit. My
question would be, looking at the language that's in this bill,
is that language helpful to your departments with regard to
activities, processes, litigation, et cetera? Would the bill be
helpful to you?
Mr. Manson. The language on INRMPs and critical habitat
designation would certainly be helpful to the Department of the
Interior.
Mr. Gibbons. Dr. Hogarth?
Dr. Hogarth. I think the language on the Marine Mammal
Protection Act would be helpful. We support it. Like I said, I
do have some clarifying questions on the ESA portion. If the
understanding is just critical habitat there it would be one
thing, but with section 7 and other things, there is a concern
and we just don't know.
Mr. Gibbons. Thank you, gentlemen.
In view of the late hour that you've spent here, I'm going
to allow each member to have one follow-on question, because
these gentlemen have been here now since 2 o'clock. While each
of you are able to get up and leave at your will and go do
other things, they've been very patient and very dedicated. So,
in order to expedite them and the next panel, I'm going to
limit it to one question.
Mr. Gilchrest.
Mr. Gilchrest. One question with three parts?
[Laughter.]
I'll do my best there.
We do need to codify some of the INRMPs, and I think that's
the way we need to go. In pursuing the codification of that in
statute, I certainly don't want to reduce the effectiveness of
the consultation that brought us to INRMPs by a variety of
different Federal agencies working together. So I don't want to
begin separating that out with some of the language change.
The question, I guess to both, would be Level 3. If we can
say Level 3 harassment now in the language of 1835, would that
help or hinder scientific research that now to some extent
seems to be hindered at this point? In the legislation, if I
can sneak this in while the Chairman is preoccupied, dealing
with--
Mr. Gibbons. But I'm still listening, Mr. Gilchrest.
Mr. Gilchrest. In the legislation dealing with page 6,
incidental takes, dealing with specific geographical regions
and dealing with specific small numbers, the question is, would
scientists be less effective in trying to apply for research
activities as a result of Level 3 harassment, and in the letter
of authorization or incidental harassment authorization, does
that change at all that part dealing with geographical regions
and dealing with small numbers?
Dr. Hogarth. First off, let's take the second part about
the small numbers and geographical range, we don't think that
affects it at all because, to make the evaluation we have to
make, we still have to know the geographical area you're
working in. Small numbers take, when you look at the negligible
impact, you would have to look at the population you're dealing
with and what the numbers were anyway to do the negligible
impact. So we don't think that affects it one way or the other.
We would have probably put this in our bill if we had the
lawsuit we just had, knowing that--
Mr. Gilchrest. So, Dr. Hogarth, you feel that any act that
is directed--this is the language under the text of the bill--
``any act that is directed toward a specific individual, group,
or stock of marine mammals in the wild and that is likely to
disturb the individual, group or stock...'' especially any act
directed toward a specific individual, that's not going to
hinder scientific research, the application for it?
Dr. Hogarth. Not in my opinion, it won't.
Mr. Gibbons. Thank you, Mr. Gilchrest, for that very
succinct line of questioning. I appreciate that.
Mr. Udall.
Mr. Tom Udall. I will strive for the same, Mr. Chairman. I
will say for the record that I've been here the whole time,
too, except for a couple of minutes to visit with some
constituents.
Dr. Hogarth, I got from your answer about this definition
of harassment and what the military was asking for, that you
basically thought there wasn't much difference, that the
current law, what the military is asking for, what's in this
bill, H.R. 1835, there is not much difference.
First, I just wanted to ask, it seems to me that what the
military was asking for was something very narrow, to deal
specifically with their training and readiness, and what we're
doing here is redefining harassment for all activities. Would
you agree with that? So we're taking a pretty big step, rather
than just limiting it to military, from what the military came
in and said they wanted.
Dr. Hogarth. I think this bill treats everyone the same,
which we do not have a problem with.
Mr. Tom Udall. So you agree that it's a redefinition that
is very broad?
Dr. Hogarth. Right.
Mr. Tom Udall. Then the redefinition, when you redefine
harassment, if you look at the current Act and the bill, H.R.
1835, it is talking about harassment to the point where ``such
behavior patterns are abandoned or significantly altered''.
Now, it seems to me that that language is much different
than what's in the current Endangered Species Act, that this is
a global change. There are no definitions there. We don't
define abandoned. We don't talk about what ``significantly
altered'' means. These are really subject to a great deal of
interpretation, wouldn't you say?
Dr. Hogarth. First of all, the definition that's in H.R.
1835 is the same definition in the Administration's bill, so
it's the same one. What you've got is--
Mr. Tom Udall. I don't believe so.
Dr. Hogarth. Except for Level 3. The Administration's MMPA
bill, it's the same definition.
Mr. Tom Udall. My question goes to, isn't the change from
the current law under the Endangered Species Act--I mean, it
has the ``potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including but not limited to migration, surfacing, nursing,
breeding, feeding, or sheltering...''
This language here, it is any act that ``disturbs or is
likely to disturb a marine mammal or marine mammal stock in the
wild by causing disruption of natural behavioral patterns,
including but not limited to migration, surfacing, nursing,
breeding, feeding, or sheltering to the point where such
behavioral patterns are abandoned or significantly altered.'' I
mean, that is very significant language, wouldn't you say?
Dr. Hogarth. Yeah, but if the current language says ``has
the potential'', so first you have to determine--you know, this
language is more direct and it's easier to determine, if it's
likely to disturb a marine mammal, marine mammal stock in the
wild, by causing natural behavioral patterns, including but not
limited to. So if--
Mr. Tom Udall. Current law is much broader and more
protective; you would agree with me?
Dr. Hogarth. Right, it's much broader.
Mr. Tom Udall. The current law is much broader and more
protective.
Dr. Hogarth. It may be--you make it say it's broader and
much more protective, but if you can't make the court cases on
it, it is not. So far we have not been able to make court cases
on the definitions we have. That's why we were trying to make
them more specific and to take out some of what we considered
potential, things like potential, and to add in significant and
things like that, to try to make it easier for the attorneys
and for the courts.
Mr. Tom Udall. Have the courts said to us, have the courts
said to the government or to the Congress ``we don't like this
definition and you should change it''?
Dr. Hogarth. Well, we have lost, I think, the last three
cases because of the--we have been unsuccessful due to not
being able to really prove the point of what pursuit, torment
and what the issues were.
Mr. Tom Udall. I'm not interested in winning or losing
cases. I'm interested if the court said they think this
definition is not a good definition and the Congress should
revisit it.
Dr. Hogarth. But we are the ones trying to make--We are the
ones taking action in court. We take a person to court based on
the fact that we thought they were swimming with the dolphins
or they had gone by with a jet ski or something too close to
them and caused them or to alter.
These cases have been thrown out of court because we cannot
prove the intent of the people of what they were doing.
Mr. Tom Udall. Based on the definition alone?
Dr. Hogarth. Based most on--what the attorneys are telling
us is it's based on the definitions we have, the procedures.
Mr. Tom Udall. Thank you. I see my time is out and I don't
want to indulge Chairman Gibbons on his overindulge here. Can I
submit additional questions to these witnesses for the record--
Mr. Gibbons. Certainly.
Mr. Tom Udall. --rather than having to ask you again to
requestion. Is that all right, Mr. Chairman?
Mr. Gibbons. Mr. Udall, you and any other member of this
Committee are certainly welcome to submit written questions for
the witnesses that could be answered and submitted for the
record.
Mr. Tom Udall. Thank you, Mr. Chairman, and thank you for
allowing me to get in more than just one question. Thank you.
Mr. Gibbons. Mr. Cole.
Mr. Cole. thank you, Mr. Chairman.
I would like to yield the balance of my time, and however
many questions I have, to my good friend, Mr. Gilchrest.
Mr. Gibbons. Well, it started out to be one. Mr. Gilchrest
went to 2 minutes and forty-five seconds, and Mr. Udall went to
5 minutes. So, in the good gracious kindness to these gentlemen
sitting out here, I would hope that we can limit the number of
questions we have.
Mr. Gilchrest.
Mr. Gilchrest. I actually think, Dr. Hogarth, that the
Level 3 definition of harassment in the language of the bill
will be more protective, if I could say that to Mr. Udall, the
Level 3 definition in the text, will be more protective than
present law, because I think it gets at people that ride those
alien species around, invasive species around, if I could refer
to jet skis as invasive species. So I think that part, Dr.
Hogarth, of the legislation goes to the heart of some of the
problems in the more built-up areas. So I'm happy with that.
The last question I have deals with the issue of incidental
takes based on the text of the language in the bill, which does
change existing law, and how that would change or not change
what NMPs or Interior would go through as far as letters of
authorization or incidental harassment authorizations in those
incidental takes.
Does anything change, based on this legislation, to what
you do now as far as that process is concerned?
Dr. Hogarth. No. No, not to the mitigation measures and
being permits and all, it's still the same. I think I may have
given you, in answer to you quickly awhile ago, from a
scientific standpoint, we use a different permit for scientific
anyway. So that's why I say I don't expect any differences
there.
Mr. Gilchrest. So there is no change in general harassment
authorization--
Dr. Hogarth. No.
Mr. Gilchrest. --based on the new legislation?
Dr. Hogarth. Correct.
Mr. Gilchrest. And Level 3 harassment would not affect
scientific research because it's a different permitting
process?
Dr. Hogarth. Yes, that's correct.
Mr. Gilchrest. How's that, Mr. Chairman?
Mr. Gibbons. It was more succinct than your last effort,
Mr. Gilchrest.
[Laughter.]
Mr. Grijalva.
Mr. Grijalva. Thank you, Mr. Chairman. I have no questions
for the witnesses, but just an insertion into the record
regarding Public Law 105-85. If I could make that a part of the
record.
This section deals with administrative actions adversely
affecting military training or other readiness activities. I
think it's 10 USCS, in particular section 2014. My request is
to have that in its entirety so we can have a literal context
as to the reference I made to that law.
Mr. Gibbons. Without objection.
[The document follows:]
10 U.S.C. 2014
***CURRENT THROUGH P.L. 108-3, APPROVED 1/13/03 ***
TITLE 10. ARMED FORCES
SUBTITLE A. GENERAL MILITARY LAW
PART III. TRAINING AND EDUCATION
CHAPTER 101. TRAINING GENERALLY
Sec. 2014. Administrative actions adversely affecting military
training or other readiness activities
(a) Congressional notification. Whenever an official of an
Executive agency takes or proposes to take an administrative action
that, as determined by the Secretary of Defense in consultation with
the Chairman of the Joint Chiefs of Staff, 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, the Secretary shall
submit a written notification of the action and each significant
adverse effect to the head of the Executive agency taking or proposing
to take the administrative action. At the same time, the Secretary
shall transmit a copy of the notification to the President, the
Committee on Armed Services of the Senate, and the Committee on Armed
Services of the House of Representatives.
(b) Notification to be prompt.
(1) Subject to paragraph (2), the Secretary shall submit a
written notification of an administrative action or proposed
administrative action required by subsection (a) as soon as
possible after the Secretary becomes aware of the action or
proposed action.
(2) The Secretary shall prescribe policies and procedures to
ensure that the Secretary receives information on an
administrative action or proposed administrative action
described in subsection (a) promptly after Department of
Defense personnel receive notice of such an action or proposed
action.
(c) Consultation between Secretary and head of Executive agency.
Upon notification with respect to an administrative action or proposed
administrative action under subsection (a), the head of the Executive
agency concerned shall--
(1) respond promptly to the Secretary; and
(2) consistent with the urgency of the training or readiness
activity involved and the provisions of law under which the
administrative action or proposed administrative action is
being taken, seek to reach an agreement with the Secretary on
immediate actions to attain the objective of the administrative
action or proposed administrative action in a manner which
eliminates or mitigates the adverse effects of the
administrative action or proposed administrative action upon
the training or readiness activity.
(d) Moratorium.
(1) Subject to paragraph (2), upon notification with respect
to an administrative action or proposed administrative action
under subsection (a), the administrative action or proposed
administrative action shall cease to be effective with respect
to the Department of Defense until the earlier of--
L(A) the end of the five-day period beginning on the date
of the notification; or
L(B) the date of an agreement between the head of the
Executive agency concerned and the Secretary as a result of
the consultations under subsection (c)
(2) Paragraph (1) shall not apply with respect to an
administrative action or proposed administrative action if the
head of the Executive agency concerned determines that the
delay in enforcement of the administrative action or proposed
administrative action will pose an actual threat of an imminent
and substantial endangerment to public health or the
environment.
(e) Effect of lack of agreement.
(1) If the head-of an Executive agency and the Secretary do
not enter into an agreement under subsection (c)(2), the
Secretary shall submit a written notification to the President
who shall take final action on the matter.
(2) Not later than 30 days after the date on which the
President takes final action on a matter under paragraph (1),
the President shall submit to the committees referred to in
subsection (a) a notification of the action.
(f) Limitation on delegation of authority. The head of an Executive
agency may not delegate any responsibility under this section.
(g) Definition. In this section, the term ``Executive agency'' has
the meaning given such term in section 105 of title 5, except that the
term does not include the General Accounting Office.
HISTORY: (Added Nov. 18, 1997, P.L. 105-85, Div A, Title III,
Subtitle B, Sec. 325(a), 111 Stat. 1678.) (As amended Oct. 5, 1999,
P.L. 106-65, Div A, Title X, Subtitle G, Sec. 1067(1), 113 Stat. 774.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
Amendments:
1999. Act Oct. 5, 1999, in subsection (a), substituted ``Committee
on Armed Services'' for ``Committee on National Security'' preceding
``of the House''.
______
The Chairman. Gentlemen, your patience has been
overwhelming. We thank you for that. We would like to excuse
Panel 2 and call up Panel 3.
Panel 3 will consist of Dr. Paul Eugene Nachtigall--I hope
I pronounced your name right--Director, Marine Mammal Research
Program, Hawaii Institute of Marine Biology, University of
Hawaii; Dr. Darlene R. Ketten, Senior Scientist, Biology
Department, Woods Hole Oceanographic Institution; Mr. John C.
Kunich, Associate Professor of Law, Roger Williams University
School of Law; and Ms. Karen Steuer, Senior Policy Advisor,
National Environmental Trust.
If I have mispronounced any of your names, I apologize. We
will call the third panel up now.
Before you get seated comfortably there, we have a policy
in this Committee, as you have already seen, to swear in our
witnesses. So, when you are ready, we will begin that process.
[Witnesses sworn.]
Let me record show that each of the witnesses before us
have responded in the affirmative.
To begin this panel, we will begin with Dr. Nachtigall,
Director, Marine Mammal Research Program, Hawaii Institute of
Marine Biology. Doctor, the floor is yours.
Again, to each of you, I apologize for the lateness of the
hour and I am grateful for the patience you have demonstrated
in waiting out the rest of the panels for your opportunity to
testify.
Dr. Nachtigall.
STATEMENT OF PAUL EUGENE NACHTIGALL, DIRECTOR, MARINE MAMMAL
RESEARCH PROGRAM, HAWAII INSTITUTE OF MARINE BIOLOGY,
UNIVERSITY OF HAWAII
Dr. Nachtigall. Thank you very much.
Thank you for the invitation to appear before your
Committee. I feel honored to be asked and appreciate your
request to provide information. I will provide opinions
concerning marine mammals with your understanding that I am
primarily a scientist and not an advocate, a critic, or well-
versed in legal matters. My comments are my own as a scientist
and do not necessarily represent my institution or any
professional society that I serve.
I primarily conduct research on the hearing and effects of
sound on dolphins and whales. I am very concerned about both
the ability to continue to conduct research and the effects of
sound on populations of marine mammals. It is my opinion that
one cannot know about the effects of sound on animals without
conducting well-planned and executed basic research.
There appears to be a current trend among some marine
mammal advocates to be very conservative when it comes to
science. Some apparently advocate that no research involving
sound should be done. I think it's unreasonable to do nothing.
Basic research is essential to understand the animals and to
assist in the preservation of their populations.
There have been two recent occurrences relating to research
activities that have been enjoined by the courts. One of these
research activities was specifically aimed at examining the
effects of anthropogenic sound on the behavior of wild marine
mammals. I believe that it is most unfortunate that this sort
of research has been stopped. How will we know what the effects
of sound are on marine mammals if, in fact, scientists are not
allowed to study it?
In the other occurrence, a National Science Foundation-
supported ship was enjoined from continuing seismic research
off Mexico following the discovery of at least one beaked whale
that stranded nearby the ship.
Scientists do have an obligation to be concerned about the
effects of their scientific investigation on the environment. I
believe that this case identifies a critical need for basic
research on the effects of sound on whales. Beaked whales also
stranded in the Bahamian incident and again in the Canary
Islands within the last couple of years, both apparently
involved naval exercises and sonar, but unfortunately we still
know very little about beaked whales and what they hear.
One difficulty that I see is that it is becoming
increasingly expensive and difficult to hold marine mammals for
research. There are increasingly fewer opportunities to conduct
hearing studies on marine mammals due to the expense of holding
animals and the difficulty in acquiring new animals and new
species of animals. It would be most helpful if the structure
of the laws, and the implementation of the regulations
governing the protection of marine mammals, created a climate
of acceptance and support for bona fide scientists that care
about marine mammals and have the training and skills to
complete basic research and create the knowledge base necessary
to solve practical applied problems.
H.R. 1835 would amend the definition of harassment of
marine mammals under the Marine Mammal Protection Act. I will
limit my comments to the effects of sound on marine mammals.
First of all, we have audiograms, indicating how well
animals hear across frequencies, on only 10 or 11 of the 85
species of dolphins and whales. I am working on a panel
organized by the National Marine Fisheries Service to establish
tolerable sound levels for whales and dolphins based on the
data we have to date. I am pleased with the idea of basing the
levels on real scientific data, but concerned that we may not
have sufficient data to cover many critical marine mammal
species.
I am excited about the fact that we have developed new
scientific tools to be able to learn which levels of sound may
injure or harass marine mammals, but I do not believe that we
currently have a broad enough data base to comprehensively know
about sound levels and frequencies that might harass or injure
a great variety of marine mammals.
The definitions of harassment are general, but seem tied to
the current concern about sound in the oceans. If the harassing
``act'' were the production of some sort of sound, it would
seem to be very difficult to determine what sort of ``act''
would be likely to disturb if, in fact, you did not know the
basic parameters of the animal's ability to hear that sound.
We have basic information on the hearing of some species of
marine mammals, and from that data the most reasonable thing to
do is to extrapolate to the rest. While that is currently the
most reasonable thing to do, I would certainly be more
comfortable in defining harassment from sound if our data set
encompassed a good many more species in order to increase the
precision of our extrapolation.
I therefore advocate that we accelerate the level of
scientific inquiry to include new ways to test marine mammal
hearing and to expand the number of species examined.
Thank you very much for this opportunity.
[The prepared statement of Dr. Nachtigall follows:]
Statement of Paul E. Nachtigall, Director, Marine Mammal Research
Program, Hawaii Institute of Marine Biology, University of Hawaii
Thank you for the invitation to appear before your Committee. I
feel honored to be asked and appreciate your request to provide
information. I will provide opinions concerning marine mammals with
your understanding that I am primarily a scientist and not an advocate,
a critic or well versed in legal matters. My comments are my own as a
scientist and do not necessarily represent my institution or any
professional society that I serve.
I primarily conduct research on the hearing and effects of sound on
dolphins and whales. I am very concerned about both the ability to
continue to conduct research, and the effects of sound on populations
of marine mammals. It is my opinion that one cannot know about the
effects of sound on animals without conducting well-planned and
executed basic research. There appears to be a current trend among some
marine mammal advocates to be very conservative when it comes to
science. Some apparently advocate that no research involving sound be
done. I think it is unreasonable to do nothing. Basic research is
essential to understand the animals and to assist in the preservation
of their populations.
There have been two recent occurrences relating to research
activities that have been enjoined by the courts. One of those research
activities was specifically aimed at examining the effects of
anthropogenic sound on the behavior of wild marine mammals. I believe
that it is most unfortunate that this sort of research has been
stopped. How will we know what the effects of sound are on marine
mammals if in fact scientists are not allowed to study it? In the other
occurrence, a National Science Foundation supported ship was enjoined
from continuing seismic research off Mexico following the discovery of
at least one beaked whale that stranded nearby the ship. Scientists do
have an obligation to be concerned about the effects of their
scientific investigation on the environment. I believe that this case
identifies a critical need for basic research on the effects of sound
on whales. Beaked whales also stranded in the Bahamian incident and
again in the Canary Islands within the last couple of years. Both
apparently involved naval exercises and sonar, but unfortunately we
still know very little about beaked whales and what they hear.
One difficulty that I see is that it is becoming increasingly
expensive and difficult to hold marine mammals for research. There are
increasingly fewer opportunities to conduct hearing studies on marine
mammals due to the expense of holding animals and the difficulty in
acquiring new animals and new species of animals. It would be most
helpful if the structure of the laws, and the implementation of the
regulations governing the protection of marine mammals, created a
climate of acceptance and support for bona fide scientists that care
about marine mammals and have the training and skills to complete basic
research and create the knowledge base necessary to solve practical
applied problems.
H.R. 1835 would amend the definition of harassment of marine
mammals under the Marine Mammal Protection Act. I will limit my
comments to the effects of sound on marine mammals. First of all we
have audiograms, indicating how well animals hear across frequencies,
on only 10 or 11 of the 85 species of dolphins and whales. I am working
on a panel organized by the National Marine Fisheries Service to
establish tolerable sound levels for whales and dolphins based on the
data we have to date. I am pleased with the idea of basing the levels
on real scientific data, but concerned that we may not have sufficient
data to cover many critical marine mammal species. I am excited about
the fact that we have developed new scientific tools to be able to
learn which levels of sound may injure or harass marine mammals, but I
do not believe that we currently have a broad enough data base to
comprehensively know about sound levels and frequencies that might
harass or injure a great variety marine mammals.
The definitions of harassment are general but seem tied to the
current concern about sound in the oceans. If the harassing ``act''
were the production of some sort of sound, it would seem to be very
difficult to determine what sort of ``act'' would be ``likely to
disturb'', if in fact you did not know the basic parameters of the
animal's ability to hear that sound. We have basic information on the
hearing of some species of marine mammals and from that data the most
reasonable thing to do is to extrapolate to the rest. While that is
currently the most reasonable thing to do, I would certainly be more
comfortable in defining harassment from sound if our data set
encompassed a good many more species in order to increase the precision
of our extrapolation.
______
Mr. Gilchrest. [Presiding.] Thank you, Dr. Nachtigall. I
think we met in Hawaii at some point.
Dr. Nachtigall. We sure did.
Mr. Gilchrest. Back in 1942, just after--
[Laughter.]
Dr. Nachtigall. Four years before I was born, yeah.
Mr. Gilchrest. We both have been preserved well. But it's
good to see you again, sir, and thank you for coming all this
way to testify.
Dr. Nachtigall. Thank you very much.
Mr. Gilchrest. It seems like, when the smartest people
testify, most of us leave the room.
Dr. Ketten, welcome from Cape Cod.
STATEMENT OF DARLENE R. KETTEN, SENIOR SCIENTIST, BIOLOGY
DEPARTMENT, WOODS HOLE OCEANOGRAPHIC INSTITUTION, AND ASSISTANT
PROFESSOR, DEPARTMENT OF OTOLOGY AND LARYNGOLOGY, HARVARD
MEDICAL SCHOOL
Dr. Ketten. Thank you, sir. It's a privilege to be here. I
appreciate the opportunity to testify before this hearing.
My name is Darlene Ketten. I have an appointment as a
senior scientist, as you've heard, at Woods Hole Oceanographic
Institution, and I hold a joint appointment also at Harvard
Medical School.
Aside from obviously having a letterhead that is way too
long, I need to state, as Dr. Nachtigall did, that I am not
here to represent officially the opinions of my institution
but, rather, as an individual scientist. I will say, however,
that the comments I am making are a consensus of opinions of my
colleagues at both institutions with whom I have discussed
this, as well as a great deal of e-mail traffic that has been
going back and forth amongst oceanographic institutions and
some organizations that represent oceanographic consortia.
My position is based primarily, in addition to those
conversations, on nearly 20 years of experience in research in
marine mammal sensory systems and on auditory trauma and
disease. Obviously, I've had a fair amount of individual
experience with research permitting under MMPA and ESA.
My opinions are also informed most recently by my
experience as a panel member for the 2003 NRC Report on Ocean
Noise as well as being on the advisory board for NOAA Fisheries
for determining noise exposure standards, effectively trying to
set up OSHA regulations for the ocean. We're not nearly there
yet.
I was privileged to testify before the House Armed Services
Committee and the Senate Armed Services Committee on the
exemption question. Therefore, I have had fairly extensive
opportunities to look at the components that have gone into
this bill and to think about the implications of the amendments
that are being proposed.
The first question that was posed to me in my letter of
invitation was, ``Are the issues that are addressed in H.R.
1835 of concern also for broader level endeavors, including the
research community and the industry?'' The answer is simple.
Absolutely, for all of the issues that you have raised and
considered. The Committee is to be applauded for the foresight
to begin thinking about whether these have broader, important
applications. Every endeavor by humans in the oceans, regulated
or not regulated at the moment, has these concerns in common.
First of all, I want to say that I think conservation
regulation is imperative. It is not something we can take
lightly, nor that we should sweep away, not something that we
should, the term has been used, ``gut''. No human activity in
the oceans is without sound, and we do know, based on the last
NRC report, noise from human efforts is going up three decibels
per decade. That's a doubling per decade.
Because marine mammals, arguably, have as their most
important sense hearing, additional noise can have horrendous
impacts. Or it can have no impacts. The MMPA was implemented
originally to conserve marine mammals and, therefore, to
address the question of such concerns as what will underwater
noise do to marine mammals. Ideally, it was intended to judge
and to regulate, to balance rationally, and, with appropriate
information, responsibly human activities in the oceans and
their potential impact.
Unfortunately, as Dr. Nachtigall has pointed out very
clearly, we don't have enough knowledge to put numbers in front
of the regulators and say this is safe or this is not safe.
Consequently, we now find ourselves applying a precautionary
principle that's to be lauded, but it is also changing our
focus from the original intention of the MMPA of population
level consequences to individual cases.
I would say that not only are we in a polarized and
litigious climate at the moment, but in some cases, ironically,
as in the most recent Pyrrhic victory in a court case in which
the decision was to halt an experiment that was intended to
test a sonar to detect and protect whales from ship strikes, we
are beginning to enter a period of stagnation.
Permit processes are part of that. They are complex,
costly, and they are fraught with delay and uncertainty. This
is not news. You're all aware that there are three NRC reports
in the last decade that have dealt with marine mammals and
sound, and in every one of them there was a complete consensus
that said the permitting process must be revised. They have all
recommended the same revisions.
Within the last few months, there have been parallel
position papers by every major oceanographic institution, being
presented to this Committee and others, and organizations like
CORE are similarly presenting position papers along the same
lines.
To summarize that portion, I and many other scientists, as
well as these position papers, are in agreement with the
proposed amendment. They are to be applauded--but, there are a
couple of short exceptions. I see I'm getting short of time.
The first and most important thing is that the inclusion of
the word ``significance'' is important. It's a very good step
forward, but ``significance'' is a fungible--
Mr. Gilchrest. Dr. Ketten, please don't rush. We'll listen.
Dr. Ketten. OK. Thank you, sir. That's very generous.
Significance is a fungible term. It is not rigorous. There
is, however, a term of art in science, ``biological
significance'', and that means a population level effect. I
would urge you to consider rewording the definition of
harassment, in consistency with the 2000 and 2003 NRC reports,
to simply add in that important modifier, ``biologically
significant.'' That restores the intent of the original MMPA
and it provides relief for many of the problems that the NRC
reports pointed out in the definition of harassment.
Therefore, subparagraphs (2) and (3), both for injury and
for behavioral changes, with the addition of ``biologically
significant,'' come into line with the NRC recommendations.
However--and here I must disagree with Dr. Hogarth--
subparagraph (iii), any act directed at a specific individual,
clearly the intention is not to decimate much less exterminate
research, but it has that potential. This is an example of the
law of unintended consequences. There is no hearing research,
no bioacoustics research or behavioral work on marine mammals
that does not involve testing, monitoring, or manipulating
individual animals. That clause has the potential to be used
against marine mammal research permits very effectively. I urge
you to reconsider, or at least to very carefully consider how
that may be applied in the future.
The last comment I want to make is on the idea of the
removal of small takes. This is a very important element with
which I, at least, and many of the organizations, are in full
agreement. Small takes has been used, interpreted, I should
say, as meaning a very small number of individuals without the
perspective of the percentage of population, and further,
without the concept of individuals and their importance in life
stages or their actions.
If small takes is not removed, then we have the possibility
of it superseding the far more important issue of negligible
impact. Therefore, I'm in complete agreement with the concept
of small takes being removed and focusing on negligible impact
as the truly appropriate variable.
In summary, for responsible stewardship, we really need to
be able to go forward with an informed and balanced view.
Hearings like this are allowing all of the significant,
important parties that have a stake in this to have their views
heard and, for that, I am extremely grateful.
If this amendment group is passed and applied more broadly,
it actually has a very important potential to make the
permitting process more effective and beneficial ultimately to
marine mammals, particularly by broadening our facility for
research.
Thank you for listening to me.
[The prepared statement of Dr. Ketten follows:]
Statement of Darlene R. Ketten, Ph.D., Senior Scientist, Assistant
Professor, Biology Department, Department of Otology and Laryngology,
Woods Hole Oceanographic Institution, Harvard Medical School
Credentials
This testimony is being submitted to the Committee to represent my
views as an individual scientist. It does not represent those of either
institution with which I am affiliated. I have arrived at my position
as stated below based primarily upon my experience as a researcher with
over 15 years experience in the combined fields of mammalian hearing,
marine mammal sensory system modeling, ear disease, and head and neck
trauma diagnostics. I received a B.A. from Washington University
(Biology and French, 1971), an M.S. from M.I.T. (Biological
Oceanography, 1979), and a Ph.D. from Johns Hopkins University (jointly
awarded by neuroanatomy, behavioral ecology, and experimental
radiology, 1984). I currently hold joint appointments as a senior
scientist in Biology at Woods Hole Oceanographic Institution and as an
assistant professor in Otolaryngology at Harvard Medical.
In addition to my basic research training, I have completed medical
specialty accreditation courses in Otopathology, Neuroradiology, and
Forensic Pathology, and I am a member of the Society of Marine
Mammalogy, the Association for Research in Otolaryngology, the
Radiological Society of North America, Sigma Xi, and the Acoustical
Society of America. I am a Fellow of the Acoustical Society, an active
member of the ASA Bioacoustics Technical and Membership Committees, and
have served on Federal advisory boards and panels on hearing,
bioacoustics, acoustic trauma, marine mammal acoustics, and ocean noise
for the National Institutes of Health, National Institutes of Deafness
and Communication Disorders, NIH Consensus Development Conferences, the
National Academy of Sciences, the Marine Mammal Commission, Minerals
Management Service, NATO, Office of Naval Research, and NOAA/NMFS. My
current work focuses on understanding marine mammal hearing mechanisms
and modeling the hearing of endangered species. My comments at this
time are particularly related to my direct experience with permitting
for the conduct of marine mammal research as well as discussions during
my tenure as a member of the recent National Research Council panel on
Ocean Noise and as a member of NOAA Fisheries advisory board on noise
exposure.
Introductory Statement
The proposed amendments to the Endangered Species Act and the
Marine Mammal Protection Act outlined in H.R. 1835 were prompted by
exemptions requested for the purposes of improving and facilitating
military readiness. I have had the privilege to testify before both the
House and Senate Armed Services Committees with regard to that request.
Therefore I have had the opportunity to consider the issues involved in
both the exemption and the amendments being proposed and reviewed by
this Committee. In my testimony before the House and Senate Armed
Services Committees I stated that the exemptions were both timely and
welcome as they had the potential to provide a spring board to both
bring about public awareness of permitting issues and to promulgate
changes that would benefit all communities whose work and research are
regulated and impacted by to these same regulations. It is not
surprising therefore that I applaud this Committee for its interest and
foresight in considering whether the proposed changes are important and
appropriate for a general level of application. These are indeed
important issues for many scientific and industrial efforts, and it
would be not only efficient but extremely beneficial for those efforts
to consider extending the amendments to a more general case. In the
following testimony, I will first outline broader level concerns
related to sound in the oceans and the current regulatory effects and
then discuss concerns with the current wording of H.R. 1835 under
Section 3 for definition of harassment and Section 5 for incidental
takes, both of which have particular implications for the oceanographic
and marine mammal scientific research communities.
Current Acoustic and Legislative Issues
There is no denying the importance of anthropogenic sound impacts
in our oceans and the appropriateness of regulating the deployment and
use of sound sources. Concomitant with man's increasing use of the
oceans is an increase in the ocean's acoustic budget. As indicated in
the current NRC report on Ocean Noise (2003), noise from human related
activity is increasing on average throughout the oceans at 3 dB per
decade; i.e., potentially doubling every ten years. Given our ever
increasing activity in all seas and at all depths, this figure is not
surprising. Anthropogenic noise is an important component of virtually
every human endeavor in the oceans, whether it be shipping, transport,
exploration, research, military activities, construction, or
recreation. For some activities, such as military exercises and oil
exploration, impulsive and explosive devices are fundamental tools that
are relatively short-term but locally intense; for others, such as
shipping, the source levels may on average be lower, but the sounds are
constant and cumulatively dominate the noise fields in high traffic
areas of the oceans.
Because there is no human activity in the oceans that does not add
noise and because our activities span the globe and produce sounds over
the entire audible range of most animals, it is reasonable to assume
that any man-made noise in the oceans may have a significant and
adverse impact on marine animals. Because marine mammals are especially
dependent upon hearing and in many cases are endangered, the concern
over noise impacts on these animals is particularly acute. These
concerns are both logical and appropriate, but it is also important to
note that at this time, there is no data that gives us a firm answer on
what will be the extent of impact from any one sound source. We simply
do not have sufficient data to put accurate boundaries on our concerns.
This lack of discrete knowledge on impacts of underwater sound,
coupled with the relatively open wording of the original MMPA and with
recent dramatic stranding events, has led to a heated, highly
polarized, litigious climate. In the last five years, there have
repeated suits brought against both the military and research
institutions, in part based on contentions that the permitting process
was flawed and had allowed experiments or exercises to proceed without
meeting the MMPA requirements. A recent example is the suit brought to
halt LFA use based on the fact that beaked whale mass strandings were
shown to correlate with naval exercises involving mid-range sonars.
Whales that stranded in three such cases, the Bahamas, Madeira, and
Canary Islands, have been found to have an unusual suite of traumas,
the mechanisms for which are still under investigation. However, this
is a case of inappropriate and overly broad extrapolation from one
event to another. There are substantial differences between LFA and
mid-range tactical sonars, and, to date, there is no evidence of
physical harm from LFA. Nevertheless, this suit, which adduced as part
of its concerns the Bahamian findings, was successful. Further, much of
the suit's discussion centered on the potential for numbers of takes
and the extent of posited impacts, both of which are issues directly
related to the existing ESA and MMPA language.
Other cases have been brought within the last year, based on
similar arguments, that halted physical oceanographic and behaviourial
research as well. These cases are addressed in additional testimony
being submitted, and the details need not be repeated here. However, it
is important to underscore that while the cases were motivated by very
sincere concerns for the use of explicit sound sources, their impacts
are potentially extraordinarily broad. Indeed, they have the potential
to initiate a requirement for in-depth environmental impact statements
for every marine mammal research project that is proposed. If that
position obtains, it will at the very least substantially reduce and
can quite literally shut down future research, for impact assessments
of that magnitude are not sustainable by the general research
community. Clearly, the issue of restrictions on sound sources is not
simply a military concern. Issues, liabilities, and costs related to
ESA and MMPA permitting are a common concern for every endeavor,
whether currently regulated or not, that involves the use of sound in
our seas.
As noted above, virtually every human activity in the oceans
involves sound either intentionally or as a by-product. For responsible
use of the seas, it is imperative to consider to the best of our
ability the probable impact of each sound we add and to determine
whether that impact is worth its inherent risk. At some level, some
individuals may be impacted by any sound beyond the natural, average
ambient. We must consider for any effort introducing sound use in the
oceans whether and to what extent the projection and repetition of the
signals employed will adversely impact significantly or negligibly any
species within the ``acoustic reach'' of the source.
There are therefore two areas of concern that are irretrievably
intertwined for all marine work. First, there is the need for
responsible yet effective deployment of sound sources. To do that, we
must balance potential impact against potential information. Second,
there is the necessity to validate and regulate that balance through
the permitting process. The major intent of the MMPA was to provide a
process that would fairly and responsibly address those two concerns.
Unfortunately, the knowledge base needed for informed regulation has
not kept pace with the rapid growth of either the devices that are
available or the increasing concerns about sound use. As the sources
and uses increase, the permit process becomes progressively more
encumbered. The regulatory agencies are overburdened and permitting
procedures are complex, costly, and fraught with uncertainty.
The impact of the existing regulations and their implementation
have been a common theme in three major National Research Council
reports in the last decade:
National Research Council (NRC). 1994. Low-Frequency
Sound and Marine Mammals: Current Knowledge and Research Needs.
National Academy Press, Washington, D.C.
National Research Council (NRC). 2000. Marine Mammals and
Low-Frequency Sound: Progress Since 1994. National Academy Press,
Washington, D.C.
National Research Council (NRC). 2003. Ocean Noise and
Marine Mammals. National Academy Press, Washington, D.C.
There is complete consensus in the findings by these panels that
the regulations must be revised to avoid the demise of valuable
research programs, including those that would, ironically, be
beneficial to marine mammal conservation. Further, major marine
research institutions, independently and in concert, as well as broader
based oceanographic organizations such as CORE (Consortium for
Oceanographic Research and Education), have produced position papers
advocating the same revisions as recommended by these panels
The proposed amendments within H.R. 1835 therefore have the
potential to offer major and needed improvements in the permitting
process if they address research as well as military needs. However,
that also means that the bill before us must be carefully examined to
avoid exacerbating current hazards or adding new ones that are specific
to research. Two concerns are paramount: the definition of harassment
and the issue of small takes.
Recommendations for revision of H.R. 1835
Section 3: Amendment to the definition of harassment
The definition of harassment is arguably the primary component
requiring revision. The 1994 amendment to the MMPA included a
definition of harassment as:
``...any act of pursuit, torment, or annoyance which:
Level A--has the potential to injure a marine mammal or
marine mammal stock in the wild; or
Level B--has the potential to disturb a marine mammal or
marine mammal stock in the wild by causing disruption of
behavioral patterns, including, but not limited to, migration,
breathing, nursing, breeding, feeding, or sheltering.''
This definition is sufficiently broad that it has been interpreted
to mean any detectable change constitutes harassment. The first NRC
report (1994) comments that as ``researchers develop more sophisticated
methods for measuring the behavior and physiology of marine
mammals''.., it is likely that detectable reactions, however minor and
brief, will be documented at lower and lower received levels of human-
made sound''. NRC (2000) concludes that it ``does not make sense to
regulate minor changes in behavior having no adverse impact; rather,
regulations must focus on significant disruption of behaviors critical
to survival and reproduction''. The current NRC report (2003) clearly
states that the previous recommendations are still relevant although
unfulfilled and require attention. All three NRC committees are
therefore in agreement that the definition of harassment should be
modified to focus on the biologically significant injury and disruption
of behaviors critical to survival and reproduction, i.e., on population
level and therefore biologically significant impacts rather than
individually detectable changes.
Of course sound operates at the individual level, but the
repeatedly stated, fundamental concern is for the well-being of
populations. All data to date have been gathered on individual or local
populations. As the NRC report on Ocean Noise and Marine Mammals (2003)
emphasized, our major concern should be for population level impacts.
This is consistent with the intent but not all implementations of the
MMPA.
The original MMPA noted a concern for impact on marine mammal
populations. Yet, much of the debate and contention that we see today
over the issues surrounding sound in the oceans derives from and
focuses on relatively few impacted individuals. High profile events,
like the dramatic strandings in the Bahamas and Canaries, are being
construed as virtually global, both in terms of species effects and
sound source types. Precaution is appropriate; however, currently,
extraordinarily precautionary positions are holding sway in which very
broad and scientifically unfounded extrapolations are being made. A
Pyrrhic victory was recently won in a second case in which an
experiment to test the audibility of sonars intended to detect and
thereby protect whales from ship strikes was halted.
Realistically, because of the diversity of hearing characteristics
among marine animals, it is virtually impossible to eliminate all
acoustic impacts from any endeavor for all individuals, therefore the
key issues that must be assessed are: 1) what combination of
frequencies and sound pressure levels are proposed to fit each
anthropogenic task; 2) what species are present in the area the device
will ensonify at levels exceeding ambient; 3) what is the probable
severity of any potential impacts to the exposed animals from the
combined frequency-intensity-temporal characteristics of the source.
Above all, the important point is to know whether these factors produce
any biologically significant impact to a species. In the most recent
NRC report, a major recommendation was to structure research on marine
mammals to allow predictions of population-level consequences.
Individual effects are inputs to our data base, but the true metric to
apply is biological significance.
H.R. 1835 proposes a new definition of harassment that includes the
concepts ``...(i) significant potential to injure a marine mammal or
marine mammal stock in the wild;'' ``...(ii) any act that disturbs or
is likely to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of natural behavioral patterns, ...to a point
where such behavioral patterns are abandoned or significantly
altered'', and ``...(iii) any act that is directed toward a specific
individual, group, or stock of marine mammals in the wild...''. There
are three chief concerns in this definition:
1. LThe appropriateness of the term ``significant''.
2. LThe appropriateness of the concept of abandonment and
significant alteration of behaviours.
3. LThe appropriateness of the inclusion of acts directed towards
individuals.
The new definition represents an important move by including the
concept of significance but a further modification is critical to
comply with the concerns noted above.
``Biological significance'' is a term of art which implies a
species or population level concern deriving from impacts that are
capable of altering the viability of the population. ``Significance''
per se is not a sufficiently rigorous term to provide a litmus test for
harassment; the phrase loses its technical relevance and potency if the
biological modifier is removed. Therefore it is important, if the
intent and concerns expressed in the NRC reports are to be addressed
and, equally important, to avoid repeating the hazard of a non-explicit
criterion, that the phrase ``biological significance'' be employed in
this amendment in lieu of simply ``significant''.
Similarly, abandonment or alteration of behaviourial patterns is a
phrase without explicit scientific meaning that could be interpreted to
mean individual effects. Just as with injury, biologically significant
alterations are the appropriate focus for setting behaviourial
harassment criteria.
The addition of sub-paragraph (iii), under Section 3 poses a
significant hazard for marine mammal research. For a number of
practical reasons, research efforts on marine mammal hearing, acoustics
and behaviour depend upon the ability to observe, test, and manipulate
individual animals. Therefore, although the intention of this paragraph
may not have been explicitly directed at marine mammal research, it
has, as written, the potential to substantially negatively impact this
field. Sub-paragraph (ii) of Section 3 implies individual animal
protection within the phrase, ``likely to disturb a marine mammal or
marine mammal stock'', but has the additional criterion of
significance. Therefore, sub-paragraph (iii) is redundant and
potentially damaging, and I strongly recommended its deletion.
Section 5: Incidental Takings
The concept of incidental takes is important and should be
preserved. However, the inclusion of small numbers in existing MMPA
Section 1371 (a)(5)D)(I) represents a serious hazard to all permit
processes. Small numbers has in some reviews and court cases been
interpreted literally and not as a percentage of population, which is
the more scientifically valid perspective. The proposed removal of
small numbers in H.R. 1835 provides relief from this problem and
obviates a potential hazard of there being two tests for determining
takes by harassment; i.e., small numbers as well as negligible impact.
Consequently, I strongly support the stated amendments to this section.
Summary
This Committee's interest and foresight in considering whether the
changes to ESA and MMPA requested to enhance military readiness also
have significance for research and industry are greatly appreciated.
The proposed amendments have substantial potential to improve
permitting processes for all marine endeavors. Currently, we are losing
sight of the need for balance and for perspective. This is a
potentially hazardous position since, ironically, this type of over-
interpretation is actually preventing research that could provide
precisely the answers that are needed to protect and conserve marine
species. In a sense, precaution, in the extreme, may lead us to
stagnation, and worse, because it is a position founded on assumed
rather than known effects, it may prevent us from determining the true
sources of greatest potential harm.
For responsible stewardship of our oceans, it is imperative that we
understand our impacts and that we proceed with a balanced and informed
view. Risk assessment must be a part of that debate. There is
undeniably some risk to some individuals from any underwater sound, but
individual risk must be balanced by potential gain to the species. The
addition of significant to the proposed revisions is a conceptual step
forward worthy of consideration. I urge that the step be carried
further to one of ``biological significance'' in order to provide a
scientifically valid criterion for determination of harassment. It
implies that our focus be shifted from the impossible goal of avoiding
any possible individual impact to biologically significant, population
level concerns. Such a shift, implemented with caution and judicious
oversight, will not only reduce litigation, but also provide
opportunities for education and understanding by the public of the
appropriate scope for our concerns and of the critical need for
research that will provide data to finally allow us to place clear and
valid limits on sound use in our seas.
______
Mr. Gilchrest. Thank you very much, Dr. Ketten.
Mr. Kunich, welcome.
STATEMENT OF JOHN C. KUNICH, ASSOCIATE PROFESSOR OF LAW, ROGER
WILLIAMS UNIVERSITY SCHOOL OF LAW
Mr. Kunich. Thank you.
Mr. Chairman, members of the Committee, I thank you for
this opportunity to testify. I am here speaking in my
individual capacity and not as an official representative of my
university.
As a professor of law at Roger Williams University School
of Law, I have published several major law review articles
dealing with the Endangered Species Act and the threats to
biodiversity, and I wrote a book, ``Ark of the Broken Covenant:
Protecting the World's Biodiversity Hotspots'', published this
year by Praeger.
I served 20 years on active duty with the United States Air
Force as a judge advocate prior to entering academia in 1999,
and I specialized in these same areas in the Air Force as a
JAG.
During the 1990's, I was the chief environmental law
attorney for Air Force and the United States Space Command and
NORAD, and I served as the chief of the environmental
compliance and planning branch of the Headquarters Air force
Environmental Law and Litigation Division.
During my two decades of military service, which included
advising the warfighters during the first Gulf War, our
intervention in Kosovo, and several major operations other than
war, I never became aware of even one instance in which either
the ESA or the MMPA posed an impediment to the military
mission. The Air Force was able to comply with no harmful
effect on military readiness, training, or, indeed, on the
actual successful conduct of wartime operations. The military
did not need to choose between environmental compliance and
mission accomplishment.
I urge rejection of the proposal to substitute INRMPs for
the critical habitat provisions under the ESA. The proposal
would have the effect of rendering meaningless the most
effective portion of the ESA. It would hollow out the core
substantive protection of our most rigorous environmental
statute and turn it into just one more procedural planning law.
The Supreme Court, in a series of cases, has recognized the
intent of Congress to assign preeminent importance to
preserving life under the ESA. And the reason is clear. There
is no remedy for a species driven into extinction. Each of the
1.75 million species known to us today is one of a kind, the
end product of millions of years of adaptations to specific
environmental conditions. Extinction of any species is an
irreversible, irremediable loss, different in kind from the
losses sought to be prevented by all other environmental laws.
The world is now very likely in the midst of our sixth mass
extinction. The five previous mass extinctions, during which up
to 95 percent of all life quickly went out of existence, all
took place before human beings came on the scene. We have an
airtight alibi on the first five mass extinctions, but we are
primarily responsible for this mass extinction. Through our
destruction of enormous amounts of critical habitat, we have
severely jeopardized at least 40 percent of all known species.
Species that are endemic to only a small geographical area
tend to be narrowly adapted to conditions there, and there is a
predictable mathematical relationship between habitat reduction
and the numbers of species that can be sustainably supported.
My book, ``Ark of the broken Covenant'' focuses on the
approximately 25 biodiversity hotspots, the 1.44 percent of
Earth's landmass that contains all of the remaining habitats of
over 133,000 identified higher plant species--that's 44 percent
of the world's total--and 9,600 nonfish vertebrate species, 35
percent of the world's total. These species, and many others,
are faced with imminent extinction on a scale the world has not
seen since the extinction spasm that wiped out the dinosaurs.
In fact, there may be millions of species we have never even
identified, most of them crowded into these hot spots. Like the
40 percent plus of known species, these millions of unknown
species are largely endemic to the hot spots. They are found
there and no where else on Earth. but their remaining habitat
is shrinking at an alarming rate. They have already lost 88
percent of their primary vegetation and are likely, absent
greatly increased conservation efforts, to lose much more soon.
Is there among these species a cure for AIDS or SARS or
some other threats that will not arise for centuries? We will
never know if we allow the critical habitats to be destroyed
and, along with them, an immense share of all life on Earth.
The prudent decision is to bet on life.
Now is the worst possible time for new and wide-open
exemptions to the critical habitat protections. A mass
extinction is not time for weakening the few effective legal
protections of biodiversity. The United States should be
exercising global leadership in crafting stronger, more
effective legal safeguards for our dwindling biodiversity.
Instead, the proposed exemptions would do exactly the opposite.
Thank you for this opportunity to testify. With your
permission, at this point I would like to submit for the
hearing record my Hastings Law Journal article and my
Georgetown International Environmental Law Review piece, and I
would be happy to answer any questions you may have.
Thank you.
[The prepared statement of Mr. Kunich follows:]
Statement of John Charles Kunich, Associate Professor of Law,
Roger Williams University School of Law, Bristol, Rhode Island
Mr. Chairman, members of the Committee, thank you for this
opportunity to testify. As a Professor of Law at Roger Williams
University School of Law in Rhode Island, I specialize in
Environmental, Natural Resources, and Biodiversity Law. I have
published several major law review articles dealing with the Endangered
Species Act and the threats to biodiversity, and I wrote a book ``Ark
of the Broken Covenant: Protecting the World's Biodiversity Hotspots''
published in 2003 by Praeger Publishers.
Prior to entering academia in 1999, I served 20 years on active
duty with the United States Air Force as a judge advocate, and I
specialized in these same areas for the second half of my Air Force
career. I was well suited to this specialty by virtue of my Bachelor of
Science and Master of Science degrees in Biological Sciences, as well
as my Juris Doctor degree from Harvard Law School and my Master of Laws
degree in environmental law from George Washington University School of
Law.
During the 1990's, I was the chief environmental law attorney for
Air Force Space Command, United States Space Command, and the North
American Aerospace Defense Command, and I served as the Chief of the
Environmental Compliance and Planning Branch of the Headquarters Air
Force Environmental Law and Litigation Division. I had the
responsibilities of balancing the Air Force's mission requirements with
our legal duties under all applicable Federal, state, and international
environmental and natural resources laws.
During my two decades of military legal service, which included the
first Gulf War, our intervention in Kosovo, and several major
operations other than war, I never became aware of even one instance in
which either the Endangered Species Act or the Marine Mammal Protection
Act posed an impediment to the military mission. The Air Force was able
to comply with the consultation requirements under Section 7 of the
Endangered Species Act, as well as the takings provisions under Section
9, with no harmful effect on military readiness, training, or, indeed,
on the actual successful conduct of wartime operations. The Air Force
found a way to comply with all the mandates arising out of designated
critical habitat for listed threatened and endangered species, as well
as those responsibilities directly related to the listed species
themselves. The military did not need to choose between environmental
compliance and mission accomplishment. The two were not mutually
exclusive in any respect.
I urge rejection of the proposal to substitute completion of an
Integrated Natural Resources Management Plan in lieu of the critical
habitat provisions under the Endangered Species Act. The proposal would
have the effect of rendering meaningless the most effective portion of
the Endangered Species Act. It would hollow out the core substantive
protection of our most rigorous environmental statute and turn it into
just one more procedural planning law.
Integrated Natural Resources Management Plans are just that, plans.
They often may be prepared by well-intentioned, dedicated
professionals. They may be crafted in consultation with Fish and
Wildlife Service or National Marine Fisheries Service. At their best,
they may take into account a wide range of relevant issues. But they
are still plans, not commitments. They are subject to the whims and
preferences of the people writing them. There is no guarantee that they
will actually be funded and implemented. And they have much less rigor
and enforceability than substantive statutory mandates such as the
critical habitat provisions of the Endangered Species Act.
The United States already has enough procedural environmental laws
to give us a very good idea of their advantages and limitations. We
have the National Environmental Policy Act, the Federal Land Policy
Management Act, the National Forest Management Act, and the Emergency
Planning and Community Right to Know Act, to name a few. These statutes
serve the useful functions of requiring Federal agencies to jump
through specified procedural hoops, to receive comments from concerned
citizens as part of their planning, and to take environmental
considerations into account in their decision making. But the United
States Supreme Court has consistently held that these procedural
statutes do not mandate correct decisions, or the most environmentally
favorable plans--only that the correct procedures be followed. Plans
made under these acts are, to a very great extent, entrusted to the
discretion of the planners. As the Court has said, only uninformed, not
unwise, decisions are prohibited. The planners are not required to
accept the advice they receive from other agencies or concerned
citizens, only to collect it and report it, perhaps with some comment
for the record of decision. And the plans and decisions made under
these procedural statutes are subjected only to the most deferential
standard of judicial review when challenged in court. As the Chevron
case and its many progeny have held, so long as the Federal agency plan
or decision is not ``arbitrary and capricious, or an abuse of
discretion,'' it will not be overturned by a court.
In stark contrast to these planning statutes, the Endangered
Species Act has been held to mean exactly what its exacting substantive
language says it means. The Supreme Court, in a series of cases
beginning with TVA v. Hill, 437 U.S. 153 (1978), has recognized the
intent of Congress to assign preeminent importance to preserving life
under the Endangered Species Act. Even when it costs hundreds of
millions of dollars, or halts a massive Federal project, the value of
preserving threatened and endangered species is greater. And one reason
why is that there is no remedy for a species driven into extinction. No
amount of money, no mitigation measures, can ever restore a species
once it becomes extinct. Each of the 1.75 million species on Earth
known to us today is one of a kind, the end product of millions of
years of adaptations to specific environmental conditions. Each species
is absolutely unique, and absolutely irreplaceable. Extinction of any
species is an irreversible, irremediable loss, different in kind and
not merely in degree from the kind of losses sought to be prevented by
all other environmental laws, from the Clean Air Act to the Resource
Conservation and Recovery Act.
The Endangered Species Act defines critical habitat in part as
``the specific areas within the geographical area occupied by the
species, at the time it is listed...on which are found those physical
or biological features (I) essential to the conservation of the species
and (II) which may require special management considerations or
protection....'' The proposal seeks to codify Integrated Natural
Resources Management Plans as, by definition, satisfying the ``special
management considerations or protection'' clause of this provision. But
this confuses the threshold definition of critical habitat with the
legal effect of critical habitat designation. The Endangered Species
Act requires substantive steps to be taken with regard to critical
habitat once it is designated, including the avoidance of any harmful
alteration of that habitat. It does not merely require ``special
management considerations or protection,'' to be left to the discretion
of any departmental secretary in his or her management plans. This is a
fundamental flaw in the proposed exemption. It is, in part, the need
for ``special management considerations or protection'' that is a
prerequisite for an area to be designated as critical habitat. This is
very different from the legal effects of such designation once it takes
place.
The world is now on the brink of, and very likely in the midst of,
our sixth mass extinction. The five previous mass extinctions, during
which huge numbers of species--up to 95 percent of all life on Earth--
went out of existence in a short span of time, all took place before
human beings came on the scene. We have an air-tight alibi on the first
five mass extinctions, but we are primarily responsible for the mass
extinction now just beginning. Through our deliberate or inadvertent
alteration or destruction of enormous amounts of critical habitat, we
have severely jeopardized at least 40 percent of all known species now
in existence on the planet.
For each species, there is a point at which the number of
reproductively capable individuals is so low, or the gene pool is so
depleted, or the amount of suitable habitat is so small, that the
species becomes doomed to extinction. This tipping point varies from
species to species. We know so little about so many of the 1.75 million
so-called known species in existence today that it would be more
accurate to say that we know these species by name alone. For many of
them, we have virtually no knowledge of their life cycle, ecological
significance, physiological needs, genetic characteristics, or
behavioral patterns. But we do know that species that are endemic to
only a small geographical area tend to be narrowly adapted to
conditions there, and that there is a predictable mathematical
relationship between habitat reduction and the numbers of species that
can be sustainably supported. Simply put, as the critical habitat
shrinks, the endemic species die out at a proportional rate. A 90
percent reduction of critical habitat will cause the eventual
extinction of roughly 50 percent of the species that live there. They
will not disappear all at once, but at some point they will become
irreversibly ``committed to extinction.'' Scientists refer to such
death-row species as the ``living dead.''
My book, ``Ark of the Broken Covenant,'' focuses on the
approximately 25 biodiversity ``hotspots,'' the 1.44 percent of Earth's
landmass that contains all of the remaining habitats of 133,149
identified higher plant species (44 percent of the world's total) and
9,645 non-fish vertebrate species (35 percent of the world's total).
There is powerful evidence that these species, and many others, are
faced with imminent extinction on a scale the world has not seen since
the extinction spasm that wiped out the dinosaurs. In fact, the best
scientific evidence indicates that there may be millions of species on
Earth that we have never even identified, most of them crowded into
these biodiversity hotspots. Like the 40 percent-plus of known species,
these millions of unknown species are largely endemic to the hotspots.
They are found there, and only there, and nowhere else on Earth. But
their remaining habitat is shrinking at an alarming rate. They have
already lost 88 percent of their primary vegetation and are likely,
absent greatly increased conservation efforts, to lose much more in the
foreseeable future.
If the question is, ``What's in it for us?'' to justify the effort
necessary to stop the sixth mass extinction, the answer is a great
unknown. Just as no one knows with certainty how many species are near
extinction, and how many species remain to be discovered--1 million, 7
million, 15 million--no one can predict which species will hold the key
to solving crises in the near future or beyond. Is there another
penicillin out there waiting to be found? Are there portions of DNA in
some yet-to-be-identified species that could revolutionize medicine or
food production? Is there among these nameless species a cure for AIDS,
or SARS, or some other dreadful threat to human life that will not
arise until centuries from now? We will never know if we allow the
critical habitats of the world to be destroyed, and along with them, an
immense share of all life on Earth.
How do we rationally deal with so much uncertainty in our decision
making? In ``Ark of the Broken Covenant'' I suggest a method similar to
the famous Pascal's Wager, which I call the Hotspots Wager. We need to
take into account the consequences, good and bad, of right or wrong
decisions on all key variables where the actual value is unknown. If we
guess right in deciding what to do about each of the unknowns, what are
the benefits we will reap? And if we guess wrong, what is the price we
would pay for our error? I do not have time here today to work through
the entire decision matrix, but suffice it to say that the prudent
decision is to bet on life. The potential rewards from preserving as
much biodiversity as possible are enormous, and the potential loss we
could face by failing to safeguard key sources of medicine, food, and
ecosystem services is unfathomably devastating.
Now is the worst possible time to be contemplating new and wide-
open exemptions to the critical habitat protections, in the United
States or anywhere else. A mass extinction is no time for weakening the
few effective legal protections now in place in defense of
biodiversity. All or part of 3 of the 25 biodiversity hotspots are
within the United States, and these hotspots would be further imperiled
by the proposed exemptions. The United States should be exercising
global leadership in crafting stronger, more effective legal safeguards
for our dwindling biodiversity. Instead, the proposed exemptions would
do exactly the opposite.
In nation after nation, all over the world, key habitats are either
left completely unprotected, or assigned to nothing more than ``paper
parks,'' areas that are in theory protected on paper but in reality are
without effective, actively enforced safeguards. Species-specific laws
like the Convention on International Trade in Endangered Species
(CITES) and the Endangered Species Act are, at best, of only limited
utility in preventing widespread extinction, because they focus
primarily on one species at a time, and only on species that are
already on or near their deathbed. What the world needs is an
enforceable, priority-based, proactive, comprehensive legal regime
aimed at halting the decimation of the planet's most vital centers of
species endemism--the biodiversity hotspots.
The only part of the Endangered Species Act that constitutes a
major contribution to this goal is the critical habitat section.
Critical habitat is the only means by which individual species-specific
protections can simultaneously shield the places where many more
species also cling to life. When keystone or indicator species are
listed, their critical habitat will largely coincide with the habitat
necessary to sustain numerous other species as well. It is the heart of
the Endangered Species Act, the most beneficial aspect of this much-
criticized statute. It is the last place we should look for
opportunities to weaken the Act.
The Supreme Court has held that the Endangered Species Act Section
9 prohibitions on takings include habitat alteration that harms listed
species. In the case of Babbitt v. Sweet Home Chapter of Communities
for a Great Oregon, 515 U.S. 687 (1995) the Court recognized that
indirect harm to listed species through impacts on their critical
habitat is forbidden. Part of the Court's reasoning was derived from
one of the ``central purposes'' of the Endangered Species Act, as
stated in Section 2 of the Act, specifically, ``to provide a means
whereby the ecosystems upon which endangered species and threatened
species depend may be conserved....'' As the hotspots concept makes
clear, it does no good to enact an Endangered Species Act and then
leave the endangered species legally homeless.
When critical habitat is designated in the first place, the
Secretary of the Interior or the Secretary of Commerce is given
latitude to consider impacts of such designation on military readiness.
As Section 4(b)(2) of the Endangered Species Act now provides, the
Secretary ``shall designate critical habitat, and make revisions
thereto...on the basis of the best scientific data available and after
taking into consideration the economic impact, and any other relevant
impact, of specifying any particular area as critical habitat.'' This
language is sufficiently expansive to allow considerations of military
readiness to exclude certain areas from critical habitat designation at
the outset. And even after critical habitat is designated, the Act
currently satisfies all realistic concerns related to national
security.
The Endangered Species Act already has an ``exemption for national
security reasons'' in Section 7(j) that directs the Endangered Species
Committee to grant such an exemption when and if it truly becomes
necessary, in the opinion of the Secretary of Defense, to provide
relief for the military. Unlike the proposal now under consideration,
this provision is properly reserved for a case by case determination
with involvement from a high-level, largely independent group. The
broader Endangered Species Committee option has rarely been invoked for
any reason whatsoever during the decades since it was added to the Act,
and the Committee has even more rarely actually granted an exemption.
More specifically, I am not aware of any instance in which the
Secretary of Defense has exercised the Section 7(j) option for a
national security exemption. This is evidence that national security
exemptions from the Endangered Species Act have never been needed and
have never been justified, even in the opinion of the Secretary of
Defense. There is certainly no need for a new, sweeping, permanent
exemption for the Department of Defense.
Thank you for the opportunity to testify at today's hearing. With
your permission, at this point I would like to submit, for the hearing
record, my 2001 Hastings Law Journal article entitled ``Preserving the
Womb of the Unknown Species With Hotspots Legislation,'' and my 2001
Georgetown International Environmental Law Review piece entitled,
``Fiddling Around While the Hotspots Burn Out.'' I would be happy to
answer any questions you may have.
______
Mr. Gilchrest. Without objection, that will be submitted
for the record. Thank you very much.
Miss Steuer, thank you for coming.
STATEMENT OF KAREN STEUER, SENIOR POLICY ADVISOR, NATIONAL
ENVIRONMENTAL TRUST
Ms. Steuer. Thank you, Mr. Gilchrest.
Mr. Chairman and members of the Committee, my name is Karen
Steuer. I am a senior policy advisor for the National
Environmental Trust.
Unlike members of the Administration who couldn't speak to
the bill, or for anybody besides their own departments, I can
tell you that I am testifying today on behalf of organizations
who represent millions of Americans, from Maine to California,
and we do have a position on the bill. I'm afraid we're opposed
to it. But we do appreciate the Committee's assertion of its
jurisdiction over the DOD proposals and the opportunity to
testify today.
Because the Committee's bill would now apply DOD's
proposals to activities undertaken by any citizen or
corporation of the United States, we believe it's critical that
they now be considered and addressed as part of a comprehensive
MMPA reauthorization. The DOD bill is not the place for this
kind of legislation.
When the MMPA was last reauthorized in 1994, I was the
legislative staff responsible on behalf of Congressman Gerry
Studds, who Mr. Gilchrest will remember, and who was at that
time the Chairman of the former Merchant Marine and Fisheries
Committee which had jurisdiction over both the MMPA and the
ESA.
I have to plead guilty on the harassment definition,
because it was during the 1994 reauthorization that the current
definition of ``harassment'' was added to the Act. I want to
point out that it was added at the request of the scientific
community. The language was worked out with many members of the
scientific community, in a process that involved all
stakeholders, not only scientists but Alaskan Inuit
communities, the oil and gas industry, and fishermen.
The harassment definition is one of the core provisions of
the MMPA. It is the threshold for applying for a permit under
the MMPA in many cases, as we've heard today. We would strongly
urge Congress not to amend this language without a thorough
review of all the possible options and the consequences of
those options.
It is our view that the characterizations presented today
regarding the harassment definition, and some of the other
problems with the MMPA, do not arise from ambiguities in the
statutory language but instead reflect process problems
residing within the wildlife agencies and between those
agencies and DOD in particular. These problems include
inconsistency in reviewing permit applications, conflicts in
the process that dovetails the MMPA with NEPA, and lack of
cooperation among the agencies.
One of the best examples of these ambiguities lies in
efforts to protect North Atlantic right whales, the most
endangered of all the large whales and a species which occurs
almost exclusively in U.S. waters from Maine to Florida. While
NMFS regulates fishermen, whose gear causes approximately half
of the human-induced mortalities of this species, the agency
has to date made no attempts to regulate shipping traffic, even
though ship strikes have been documented to cause just as many
right whale deaths. And while the Navy has conducted bombing
exercises using live ordnance in right whale habitat, with
right whales and other endangered species present, without
preparing an environmental impact statement, a permit
application by the leading institution conducting right whale
research is undergoing a full EIS review regarding the impacts
of their research.
These are not problems that will be corrected by changing
the harassment definition, but by clarifying and standardizing
the process for permit reviews. If anything, the highly
ambiguous language of the proposed definition, and in
particular the terms ``significantly altered and abandoned''
will result in even more confusion and even more legal action,
since their meaning varies from species to species and from
behavior to behavior, and even from season to season. Nothing
will be gained, and marine mammal conservation will undoubtedly
suffer as a result.
We also agree with Dr. Ketten regarding the potential
impacts of the last paragraph of the proposed definition, which
would hold marine mammal scientists to a tougher standard than
that used for review of other potentially far more damaging
activities. In fact, Mr. Gilchrest, that paragraph would not
impact jet ski operators because the language is about
activities that are directed toward a marine mammal stock and
marine mammal population. It would therefore impact marine
mammal scientists far more than jet ski operators.
Finally, we want to bring to the Committee's attention, as
has been mentioned previously, that the proposed harassment
definition is very different from the definition suggested by
the National Research Council. We do agree that the term
``biological'' in terms of ``biologically significant
activities'' should be included in consideration of permit
applications, but I'm afraid we don't agree that just adding
that term to the existing definition as proposed by NMFS will
resolve anything, because it would retain some of the very
ambiguous terms ``significantly altered and abandoned.''
The Committee's bill also expands to all constituencies
DOD's proposal to create a separate authorization process for
military readiness activities, but as noted earlier, eliminates
key conservation elements by deleting existing limitations
regarding small numbers and impacts within a specified
geographic region.
Retention of these limitations, we believe, is a vital
component of the conservation principles embodied in the MMPA.
In particular, geographic regions serve different biological
purposes for different species, and actions that have little or
no consequence on one species within a specified region may
have grave consequences for another, and those consequences may
vary within that region from spring to summer and summer to
fall, depending on which species are present and what
activities are underway.
These limitations were intended, when added to the Act in
1994 to provide us with a means of assessing impacts in the
ocean environment in a realistic way, and in a limited way. We
believe these terms should be retained, but they need to be
defined, and NMFS has not defined them. That's part of the
problem.
In conclusion, DOD should not be exempt from complying with
laws intended to apply equally to all Americans, and the public
should not be asked to shoulder the additional conservation
responsibilities that will certainly result if the original DOD
amendments are enacted. But to use these problems or NMFS
inconsistencies in the review process as an excuse to propose
sweeping changes to the MMPA, outside of a reauthorization
process, is irresponsible and would greatly weaken an important
conservation law, and a successful one, that has been in place
since 1972.
We urge the Committee to strip these provisions from the
DOD authorization bill and consider them in the context of the
general MMPA reauthorization debate. We would like to continue
to work with you and the agencies in continuing the Act's long
and very successful history of marine mammal conservation.
Thank you very much.
[The prepared statement of Ms. Steuer follows:]
Statement of Karen Steuer, Senior Policy Advisor, National
Environmental Trust, on behalf of the National Environmental Trust,
Greenpeace, Humane Society of the United States, International Wildlife
Coalition, Natural Resources Defense Council, Oceana, Sierra Club, The
Ocean Conservancy, and World Wildlife Fund
Mr. Chairman, Congressman Rahall, and Members of the Resources
Committee:
My name is Karen Steuer. I am a Senior Policy Advisor to the
National Environmental Trust, and I am testifying today on behalf of
organizations who represent millions of Americans from Maine to
California. My testimony will focus on those provisions of the National
Security Readiness Act that would amend the Marine Mammal Protection
Act (MMPA). It is our hope that this testimony will also serve to
address the Committee's questions regarding whether the proposed
changes would benefit the scientific community and help to clarify the
effect of permitted activities, while still maintaining protection for
marine mammal populations It is our hope that this testimony will also
serve to address questions regarding whether the proposed changes would
benefit the scientific community, and help to clarify issues
surrounding the current permitting process as they relate to both
permit applicants and affected marine mammal populations.
The groups on whose behalf I am testifying today appreciate the
Committee's assertion of its jurisdiction over the Department of
Defense (DOD) proposals and the opportunity to testify. Although the
changes to the MMPA proposed for the National Defense Authorization Act
for Fiscal Year 2004 were restricted to activities undertaken by the
Department of Defense, the Committee's bill would apply the proposed
amendments to the definition of harassment and the incidental take
authorization process to activities undertaken by any citizen of the
United States. Now that it is apparent that these changes are intended
to apply broadly, we believe that it is even more important that they
be considered and addressed as part of a comprehensive MMPA
reauthorization bill, as opposed to the National Security Readiness Act
of 2003. In that context, we stand ready to work with you, other
members of your Committee, relevant Federal agencies, and
representatives of other affected constituencies, on this and other
issues that have arisen since the Act was last reauthorized in 1994.
not in the DOD authorization legislation.
Reauthorizations of successful and popular environmental laws
should not be undertaken lightly. When the MMPA was last reauthorized
in 1994, I worked for Congressman Gerry Studds, who was at that time
the Chairman of the former Merchant Marine and Fisheries Committee,
with jurisdiction over both the MMPA and the Endangered Species Act. It
was during the 1994 reauthorization that the current definition of
``harassment'' was added to the Act--largely to address concerns raised
by the scientific community. The process leading up to that
reauthorization was bipartisan, extensive, and involved stakeholders
from the ocean resource extraction industries, Alaskan Inuit
communities, commercial fishermen, environmental organizations, and
scientists. The result was a bill introduced by Congressman Studds and
Congressman Young with strong bipartisan support. Some of the more
senior Members of this Committee were members of the Merchant Marine
and Fisheries Committee at that time, and will recall the effort that
went into the current statutory language.
This history is particularly relevant to our discussion today
because it has direct bearing on the appropriateness of the proposed
changes to the definition of harassment, one of the core provisions of
the Act and the one that establishes the threshold for applying for a
permit under the MMPA. Congress should not amend this definition
without a thorough review of all possible options and the consequences
of those options. It is our view that the arguments and
characterizations raised by DOD in relation to harassment have been
misleading. They do not arise from the language of the statute, but
instead reflect process problems residing within the wildlife agencies
and a lack of willingness on DOD's part to work with the agencies to
resolve those problems.
The Harassment Definition
In 1994, representatives of the marine mammal research community
approached the Committee regarding what they felt was unjustified
scrutiny by the National Marine Fisheries Service in relation to
permits for scientific research on marine mammals. The Committee was
sympathetic to their concerns, and following consultations with NMFS,
the Marine Mammal Commission and the scientific community, Congress
created a two-tiered harassment definition, as follows:
``The term `harassment' means any act of pursuit, torment, or
annoyance which--
(Level A) has the potential to injure a marine mammal or
marine mammal stock in the wild; or
(Level B) has the potential to disturb a marine mammal or
marine mammal stock in the wild by causing disruption of
behavioral patterns, including, but not limited to, migration,
breathing, nursing, breeding, feeding, or sheltering.
Now the Congress is confronted by an attempt to change the
definition on the part of DOD and some segments of the scientific
community whose research incidentally takes marine mammals. The
Administration claims that the current definition of harassment is
overly broad and ambiguous, and has proposed the following alternative:
``The term harassment means any act which--
(Level A) injures or has the significant potential to injure
a marine mammal or marine mammal stock in the wild; or
(Level B) disturbs or is likely to disturb a marine mammal or
marine mammal stock in the wild by causing disruption of
natural behavioral patterns, including, but not limited to,
migration, surfacing, nursing, breeding, feeding, or sheltering
to a point where such behavioral patterns are abandoned or
significantly altered; or
is directed toward a specific individual, group, or stock of
marine mammals in the wild that is likely to disturb the
specific individual, group, or stock of marine mammals by
disrupting behavior, including, but not limited to migration,
surfacing, nursing, breeding, feeding, or sheltering.
The critical issue now is the need to evaluate what changes--if
any--are needed to the definition versus what action must be undertaken
to improve implementation of the permit and regulatory process. It is
our view that any problems that do exist are not due to ambiguities in
the statutory language, but to fundamental process problems, including:
inconsistency in reviews of permit applications, conflicts in the
process that dovetails the MMPA with the National Environmental Policy
Act, and a lack of cooperation among Federal agencies. If the problem
lies in process issues that go uncorrected, changing the definition is
likely to result only in more confusion, more delays in granting
permits, and more lawsuits. Nothing will be gained, and marine mammal
conservation will undoubtedly suffer as a result.
Unfortunately, regulation and permit processing under the MMPA
appears to vary from one stakeholder group to another, which may have
led to some of the concerns raised by the scientific community
regarding the harassment definition. This concern was noted in a report
produced by the National Research Council (NRC) in 2000, whose
recommendations have often been used--and misused--in the context of
the current effort to change the definition. In that report (Marine
Mammals and Low-Frequency Sound: Progress Since 1994) the NRC stated
that ``Although Congress intended to provide less stringent means for
marine scientists to obtain permission to unintentionally harass marine
mammals to an insignificant degree, NMFS has applied its regulations
most stringently to science.
One of the best examples of this inconsistent approach to
processing permits lies in efforts to protect North Atlantic right
whales, the most endangered of all the large whales and a species which
occurs almost exclusively in U.S. and nearby Canadian waters. While
NMFS regulates fishermen, whose gear causes approximately 50% of the
human-induced mortalities of this species, the agency has to date made
no attempts to regulate shipping traffic, even though ship strikes have
been documented to cause just as many right whale deaths. At the same
time, the Navy continues to conduct bombing exercises using live
ordnance in known habitat for right, humpback, fin, and minke whales in
the Gulf of Maine without informing NMFS, while a permit application by
the leading institution conducting right whale research is undergoing a
full environmental impact statement.
These are not problems that will be corrected by changing the
harassment definition, but only by clarifying and standardizing the
process for permit reviews. If anything, the highly ambiguous language
of the proposed definition, adding such terms as ``significantly
altered'' and ``abandoned,'' will result in even more confusion and
even more legal action, since their meaning varies from species to
species and from behavior to behavior.
We would also like to point out that the harassment definition
proposed by the Administration would reinforce the practice of holding
scientists to a much higher and tougher standard than that used for
review of other activities with potentially far more serious
consequences for marine mammals. The definition proposed here would
create a two-tiered standard: one that applies to marine mammal
researchers (harassment ``directed toward a specific individual, group
or stock of marine mammals''), and one that applies to other scientists
and activities such as oil and gas exploration, vessel traffic, and DOD
exercises. Paradoxically, the result would be that research which
stands to benefit marine mammals would be held to the tougher standard.
We find it incomprehensible that, in light of the concerns raised to
date by some members of the scientific community, the Administration
would propose this change in the definition. We suspect that those
scientists who have supported this language are not aware of the
consequences for their own permit reviews.
Because the Committee has converted DOD's proposed changes into
broad MMPA amendments, we think it is crucial that the Committee
consider whether those changes were ever actually warranted. Attached
to our testimony is a chart clarifying that since the current
definition was adopted in 1994, DOD has never been denied a permit or
incidental take authorization by NMFS. In Congressional testimony the
Navy has frequently referred to fictitious situations that have no
bearing on the actual language or the agency's interpretation of the
law. The often-used scenario in which a naval vessel is prevented from
leaving the harbor because a sea lion on the neighboring beach will
turn its head to watch the boat simply bears no resemblance to the type
of activity that NMFS actually regulates. Typical of these activities
are missile firings, which cause pinnipeds hauled out on nearby rocks
and beaches to stampede, killing their pups; and ship-shock tests,
which involve detonations of thousands of pounds of high explosives.
NMFS has never required a permit of an activity that merely caused a
sea lion to turn its head. This is a spurious issue.
Amending the Authorization Process
The MMPA currently provides several avenues for exemptions from the
moratorium on taking of marine mammals ``
The broadest, found in section 118 of the law, was
written in 1994 and applies specifically to commercial fishing
operations that incidentally catch marine mammals in fishing gear.
``Small take permits'' are authorized for purposes of
scientific research, public display, or enhancing the survival or
recovery of a species or stock. The Act specifies some of the
conditions under which such permits can be granted; process and
additional conditions have been addressed by regulation.
In 1994, Congress also added exemption provisions for
taking ``small numbers'' of marine mammals and for incidental
harassment authorizations. These provisions were added due to initial
concerns raised by groups such as the oil and gas industry. They were
intended to provide a streamlined mechanism by which proponents such as
the industry, institutions conducting oceanographic or seismic
research, or the Department of Defense could obtain year-long
authorizations for projects in which any takings would be by incidental
harassment only. The responsible agency--usually NMFS--is required to
publish a notice in the Federal Register of any authorization request
within 45 days of its receipt. After a 30-day public comment period,
the agency has 45 days to issue the authorization or deny. By law, the
entire process can take no longer than 120 days.
DOD proposed to amend this last provision by creating separate
incidental take authorization processes for military readiness
activities. Although the DOD language and the Committee's bill
partially tracks the existing provisions, it eliminates key
conservation elements from the process by striking the limitations
regarding ``small numbers'' of marine mammals and impacts within a
``specified geographic region.'' The only conceivable reason for DOD to
want these provisions eliminated would be if the Department intends to
seek global exemptions to disturb, injure, or kill unlimited numbers of
marine mammals, or to extricate itself from current lawsuits by seeking
a legislative remedy. The Committee has now expanded this ill-conceived
amendment to apply to all activities and all proponents, drastically
weakening the MMPA in the process.
Retention of these limitations is a vital component of the
conservation principles embodied in the MMPA. Under the current
language, regions of operation and numbers of animals impacted are
drawn as narrowly as possible to accomplish the proposed activity;
environmental review then takes place on that basis. The status of
marine mammal conservation varies from species to species and from
ocean to ocean, and requires that activities be considered on a case-
by-case basis. Geographic regions serve different biological purposes
for different species, and actions that have little or no impact on one
species within a specified region may have grave consequences for
another. Similarly, given that many marine mammal species are
migratory, action judged to have serious conservation implications
during one season may be of no consequence if undertaken within the
same geographic region during a different time of the year. If the
current limitations on ``specified geographic regions'' and ``small
numbers'' are eliminated, it will prove almost impossible to conduct an
adequate assessment of impacts.
Proposal for Categorical Exemption
Finally, the Committee's bill proposes language allowing the
Department to grant itself a categorical exemption to the MMPA for any
``category of actions'' necessary for national defense. Exemptions
would run for two years, but be endlessly renewable for additional two-
year periods. Additionally, while exemptions in other environmental
statues such as the Clean Air Act give discretion directly to the
President of the United States, the language contained in the
Committee's bill vests authority directly in the Secretary of Defense,
and lacks the Congressional reporting provision found in other
statutes.
Moreover, the exemption proposed for the MMPA is not conditioned on
any initial stage of environmental review. Even activities that are
conducted in peacetime and whose mitigation would not have a
significant adverse effect on readiness could fall outside of the
process and be authorized under the MMPA, receiving no mitigation,
monitoring, or even basic review. The effect of this phrasing is to
remove any meaningful accountability or oversight on the granting and
renewal of exemptions--a serious problem that is only compounded by the
lack of a Congressional reporting provision.
Furthermore, the exemption may apply not only to any single action
``undertaken by the Department of Defense or its components,'' but to
any ``category of actions'' as well. Its scope is therefore much
broader than that of exemptions available under the Endangered Species
Act (16 U.S.C. sec. 1536(j)) and other statutes, which are limited to
individual activities, technologies, or exercises. Through this
language, the provision allows for sweeping application, even to
potentially harmful activities that in themselves would not necessitate
an exemption but are nonetheless contained within a broader category.
In supporting such an exemption, DOD has nowhere addressed the fact
that considerable flexibility is already available under the Armed
Forces Code. Under 10 U.S.C. sec. 2014, DOD may seek special
accommodation and relief from any agency decision that, in its
determination, would have a ``significant adverse effect on the
military readiness of any of the armed forces or a critical component
thereof.'' This provision has never been invoked with regard to the
MMPA, presumably because DOD's requests for authorization under the Act
have never been denied and because any mitigation prescribed by the
wildlife agencies has not been judged to have a significant adverse
effect on readiness.
DOD has yet to demonstrate any real need for relief from the
current process, and to extend the Department's weakening provisions to
all constituencies appears to be nothing more than a general attempt to
weaken an important environmental law in place since 1972. The
Department's record of environmental review under the MMPA is one of
general success, allowing for public participation, scientific
analysis, and the prescription of mitigation and monitoring while
protecting the military's need for readiness. No application submitted
to the wildlife agencies by the Defense Department has been denied and
most have been approved within the expected timeframe which, in the
case of incidental harassment authorizations, is approximately four
months.
Although DOD continues to reiterate its intention to fully comply
with the intent and spirit of the MMPA, a closer examination of recent
events indicates otherwise. As noted earlier, on several occasions, the
Navy has either: conducted potentially dangerous exercises without
informing NMFS, thus denying the agency the opportunity to evaluate
``no-take'' findings in associated Navy environmental assessments;
given minimal notice of impending activities, resulting in inadequate
opportunity for agency review; or consulted with NMFS but refused to
implement even basic measures for mitigation and monitoring of
activities that are potentially lethal or injurious to marine mammals.
Conclusion
DOD should not be exempt from complying with laws intended to apply
equally to all Americans, and the public should not be asked to
shoulder the additional conservation responsibilities that will result
if the original DOD amendments are enacted. But to use DOD's lack of
cooperation or NMFS inconsistencies in the review process as an excuse
for the Committee to propose sweeping changes to the MMPA outside of
the reauthorization process is simply irresponsible.
We urge the Committee to strip these provisions from the DOD
Authorization bill and consider them in the context of the general MMPA
reauthorization debate. Our combined organizations would be happy to
continue to work constructively with the wildlife agencies and other
constituencies on alternative approaches to improving MMPA processes
and to continuing the Act's long and successful history of marine
mammal conservation.
______
[An attachment to Ms. Steuer's statement follows:]
[GRAPHIC] [TIFF OMITTED] T6854.004
Mr. Gilchrest. Thank you very much, Miss
Steuer.
I guess anybody can answer this question, I suppose, but
Dr. Ketten was the one, and then Miss Steuer just raised it
again. Could you tell us, in real world terms, the impact of
the change of the definition of harassment where the word
``significant'' is used and, Dr. Ketten, where you said
``biologically significant''. Dr. Hogarth seemed to try to
relay to us that the term ``significant'' was defined, it was a
clearer definition, and marine mammals could be better
protected and have less few lawsuits. The difference between
just using the word ``significant'' and using the word
``biologically significant''. The NRC term was actually
``meaningful disruption of biologically significant
activities.'' Why would that be better than just the word
``significant''?
Dr. Nachtigall. I believe that's directed to you, Doctor.
Dr. Ketten. Gee, thanks Paul.
In the NRC Panel 2003, we deliberated this statement for a
long period of time, not because there was not consensus
amongst the panel but rather to try to get the wording to be
explicit.
The difficulty that we had with just the term
``significant'' is that one then has to weigh what form of
significance. Gregory Bateson once said that ``a difference is
a difference that makes a difference.'' Now, I don't know if
that irritates you nearly as much as it irritates me, but he
was trying to say that it is the thing that causes you to
notice a difference. However, what the source of that
difference is is what can be debated by just the term
``significance.''
Within research on ecology and behavior, and certainly in
population biology, we talk about biological significance
explicitly, as I said, as a term of art, not to mean an
individual that is impacted but, rather, at what point do the
number of individuals--whether you're dealing with breeders or
mating behavior and individuals involved in that--at what point
does an alteration have a biologically significant impact at
the species or the population level. So it is a conventional
scientific term, and by adding the term ``biological'' to it,
we are adding a criterion that we think is important and was
the original intention of the MMPA.
Mr. Gilchrest. Thank you. Does anyone else want to comment
on that?
Ms. Steuer. If I may, Mr. Chairman, I think the other point
that should be raised here is that where the currently proposed
definition, the Administration's definition and the one that's
used in H.R. 1835, use the term ``significant'', it is to
describe an alteration of the behavioral pattern, not to
describe the behavior itself. I believe what Dr. Ketten was
trying to get at is that where that term is important is when
you're looking at the behavior. As currently proposed, the
Administration would use the term ``significantly altered''.
What does that mean? Does significantly mean a little bit
altered, does it mean a lot altered, does it mean abandoned for
20 minutes, does it mean abandoned for 3 hours, does it mean
permanently abandoned? It's a very ambiguous approach to try to
define an activity.
Mr. Gilchrest. Thank you.
One other quick question. On the Level 3 harassment, Dr.
Ketten, you seemed to indicate that the language would make it
very difficult and make it more difficult now for researchers
to get permits. Can you explain that and maybe suggest a
language change?
I thought the purpose of some of this is to have a better
permitting process to do more, if I can use the word,
significant research, and a broader language of harassment so
we can get at some of the other harassment problems that we
don't get out now, and that was my understanding of Level 3
harassment but you're disagreeing with that.
Dr. Ketten. I understand, sir, and I agree with your
concept of adding the third paragraph. But as Ms. Steuer has
said, and I had said, the difficulty that I see in it is how it
will be interpreted by the public, and I see it as fostering
lawsuits or preventing permits entirely. Consider that
virtually every single experiment done is directed at an
individual animal, whether it's a field experiment or a captive
experiment, but as Ms. Steuer pointed out, jet skis do not
direct their activity, typically, toward a dolphin. They
provide a harassment, but not necessarily a directed one.
I see paragraph (ii) as including these clauses, since it
says ``a marine mammal or marine mammal stock'', that is, an
impact on an individual can be seen to be covered under (ii),
but it doesn't explicitly say an activity directed at. I would
leave that to the regulatory agencies in reviewing an
application to determine if an activity is harmful or not. I
see it as being covered under (ii). Therefore, I frankly have
not at the moment, up to the moment, given any thought to
revising (iii), but rather removing it.
Mr. Gilchrest. I see.
Dr. Ketten. I will consider that and see if I can come up
with better concerns, or better statements for these concerns.
Mr. Gilchrest. Thank you very much.
Mr. Udall.
Mr. Tom Udall. Thank you, Chairman Gilchrest.
To Professor Kunich, in your testimony you say, ``the world
is now on the brink of and very likely in the midst of our
sixth mass extinction''. Could you please elaborate on this and
why is it important to protect habitat on DOD lands and all
Federal lands?
Mr. Kunich. Yes, sir. There is evidence from studies on
islands, primarily the study of islands biogeography, that
shows there's a predictable relationship between habitat
reduction and eventual extinction of species. Roughly speaking,
a 90 percent habitat reduction will cause an eventual
extinction of 50 percent of the species that are found there.
That doesn't mean they go extinct right away. They become
committed to extinction. Scientists have a term, ``the living
dead'', which sounds like it comes from a bad horror film, but
it refers to species that are doomed to extinction because
their numbers have been so depleted, their genetic diversity
has been so reduced, that eventually they are going to die out,
no matter what.
As the habitat for these endemic species is reduced, a
similar thing happens. For species that are ubiquitous, this
doesn't occur, but for species that are narrowly adapted to a
specific small area, as that habitat shrinks, predictable
numbers of species go extinct as well.
Now, why is this a concern for us? It's a concern, even on
DOD lands, because the species that are found there could very
well hold the key to medicinal advances, genetic engineering,
techniques that could be the answer to SARS or some dread
disease in the future, or to health or medicinal or
agricultural concerns, and we can't afford to lose any of these
raw materials.
By the way, the only complaint I really heard from the
military people during the previous four-and-a-half hours is
that they are being subjected to too many lawsuits. But I
respectfully suggest there is nothing in the proposed change
here that will reduce lawsuits. It will transform the
substantive section of the ESA into a procedural one, but it
won't exempt it from judicial review. NEPA, the Federal Land
Policy Management Act, the National Forest Management Act and
all the other planning and procedural statutes are fully
subject to endless litigation. There are many hundreds of cases
on all of them, and they are just as burdensome to defend
against as cases under the ESA as it now exists.
Mr. Tom Udall. The hot spots that you identified and talked
about in your book, are some of those contained within the
Continental United States, and Alaska and Hawaii?
Mr. Kunich. Yes, sir, Congressman Udall, three of them are,
at least in part. There's the Hawaiian Islands hot spot, the
California floristic province, which is a portion of
California--
Mr. Tom Udall. Neil, you've got to listen to this. This is
about Hawaii.
Mr. Kunich. Hawaii is one of the hot spots.
Mr. Tom Udall. You are a rich biological hot spot. I know
you're more interested in those brownies, but listen here.
[Laughter.]
OK. Go ahead.
Mr. Kunich. There's the Hawaiian Islands, which are part of
a larger Polynesia/Micronesia hot spot. There's the California
floristic province, which extends down to Baja, and then
there's the Caribbean hot spot, which includes Puerto Rico and
the southern tip of Florida. Those three are at least partially
in the United States.
Mr. Tom Udall. I wanted to ask you about critical habitat
designations versus INRMPs. What additional protections do
critical habitat designations offer that an Integrated Natural
Resources Management Plan does not?
Mr. Kunich. The primary additional protection they offer is
that they are substantive provisions with real enforcement
teeth under the ESA. If we substitute INRMPs, no matter how
good the intentions are of the people who are writing them,
implementing and drafting these plans, they remain just that.
They're plans and there are hundreds of cases under all the
other planning statutes that show that there's a very
deferential standard of judicial review that's applied to such
decisions. NEPA cases, famously, have held in the Supreme Court
that NEPA does not prohibit unwise decisionmaking but only
uninformed decisionmaking. It doesn't mandate a particularly
good result, just that you go through the right procedural
hoops. And you need more than that to adequately protect
critical habitat.
Mr. Tom Udall. On the issues of species protection and
agency mission, is species conservation consistent with the
``primary purposes'' of agencies like the Forest Service, the
BLM, the Bureau of Reclamation? Wouldn't there be massive
litigation over primary purposes?
Mr. Kunich. There certainly would be, in the Organic Act
that establishes the forests, the national forest system, for
example. The primary purpose of the forest system is
silviculture, logging. It's not conservation. That's in the
Act. Of course, now we've become accustomed to treating
national forests as if they were enclaves for recreation and
preservation, but that's not what's in the Organic Act. There
would be a tremendous amount of litigation over whether
something is either the primary purpose or is consistent with
it, and that in no way will be something that will minimize
litigation. Instead, it will invite much more.
Mr. Tom Udall. I also would like to thank the entire panel
for your patience, and I thank the Chairman, both Chairmen that
are here.
Mr. Gilchrest. Thank you, Mr. Udall.
Mr. Pombo.
The Chairman. Thank you.
Mr. Kunich, just to start with you, I guess this is a
follow up on that last question. You got me to thinking. Do you
think that the Endangered Species Act should be the primary
function of these agencies, whether it's the Forest Service or
DOD or the Department of Interior? Do you believe that, in
carrying out the implementation of the Act, should that be the
primary function of those agencies?
Mr. Kunich. No, sir. But a string of Supreme Court cases,
beginning with Tennessee Valley Authority versus Hill, have
held that no matter how onerous the burden might be on an
action agency of complying with the Endangered Species Act, the
Act means what it says, and if it means stopping the Teleco Dam
project on the eve of throwing the switch, so be it. The Court
has famously said, if Congress didn't intend that, they're free
to amend it. But as it's written, that is exactly what it
requires. There is nothing in the mission statement or the
Organic Act of any of these agencies that makes endangered
species preservation their primary purpose.
The Chairman. No, there's nothing in their generic acts
that does, but court decisions, as you have pointed out, have
made it the primary function of these agencies, that in
carrying out their job, whatever that may be, they have to
abide by the Act, regardless of what happens.
Mr. Kunich. They have to abide by the Act, but they have to
abide by RCRA, CERCLA, NEPA and all the other Acts, too. That
doesn't mean those Acts become their primary purpose. It's just
that they have to comply with them.
The Chairman. Yeah, they do. I think you accurately pointed
out that, because of a number of court cases, meeting the
Endangered Species Act becomes their primary function.
Mr. Kunich. It's an important part of their mission. They
do have to invest a lot of resources into complying with it,
that's true.
The Chairman. Specifically, in dealing with DOD, do you see
that as a problem in carrying out their primary mission, if in
carrying out the Endangered Species Act and meeting the
requirements of the Endangered Species Act, if that limits
their ability to carry out their primary function? Do you see
that as a problem?
Mr. Kunich. I don't think that has ever happened, sir. As
the General testified earlier, he testified that their training
was at about 68 percent effectiveness, but they never went for
a 7(j) exemption, they never in any way even tried to go down
that road, even though that's been in the ESA for many years.
They don't even have a procedure for asking for it. Apparently
it didn't get to the point where it was really a serious
problem.
If that's the case--
The Chairman. If I could back you up a little bit, I think
it has become a serious problem. But personally, I've got a
problem with them asking for a 7(j) exemption, because if you
do care about protecting species, that is the worst possible
scenario that you could lay out, is them getting an exemption.
Mr. Kunich. The Endangered Species Committee provisions
under the ESA don't give you a blank check to violate the Act.
If you get an exemption from the ``God Squad'', there still
have to be mitigation measures, measures to minimize the harm.
It's just that it allows an exemption from a particular penalty
provision. But there still are protections in place even with a
``God Squad'' exemption.
The Chairman. Not to the extent that there are, under every
other provision that we've talked about--
Mr. Kunich. That's true.
The Chairman. --including the INRMPs.
Mr. Kunich. That's true.
The Chairman. Miss Steuer, before I run out of time, you
talked about in your testimony there being other alternatives,
other language that we could go forward with on the harassment
definition.
Have you given the Committee or any of the agencies with
jurisdiction what some of that alternative language is? Because
I haven't seen it. I'm just wondering if you have.
Ms. Steuer. I'm sorry, Mr. Chairman, that's actually not
what I said. What I said was what we need to do is look at
eliminating the ambiguities in the permit process and in
reviews, and in the regulatory issues we need to define terms
that are causing some of the problems that have come up today,
terms like ``small numbers'', terms like ``specified geographic
region''. We need to better dovetail NEPA processes, with MMPA
processes, with ESA processes, that clearly are not working
well.
We should be looking at options for programmatic reviews of
activities, which would greatly eliminate some of the review
burdens both on the part of DOD or other constituencies and
NMFS. Most of that is not being done. What I was suggesting is
that we need to look at alternatives that would, in my view,
resolve the problems far more than just changing the
definition.
I am firmly convinced, having gone through this in 1994,
that if we change the definition to anything that's been
proposed--the Administration's definition, some of the other
options on the table, the NRC definition--if we do any of that,
without correcting the process problems, we will be back here
again in a few years having this very same conversation.
Obviously, we would all prefer not to do that.
The Chairman. I happen to agree with you on that point. As
you know, that has been one of the battles that we've gone
through over the years on this Committee, is changing that
process. But I have faith in my Subcommittee Chairman, that
he's going to take care of that.
[Laughter.]
Mr. Gilchrest. We're going to work on it, Mr. Chairman, as
we go through the process of reauthorizing the Marine Mammal
Protection Act, to solve all those definition and process
problems.
I yield now to the gentleman from Hawaii.
Mr. Abercrombie. Thank you, Mr. Chairman.
Mr. Chairman, I believe we're going to have to get to
probably a vote situation fairly quickly, so this may not be
able to go on too long. But I wanted to say for the record that
I don't have a conflict of interest, as such, I don't believe,
but I certainly want to acknowledge the fact that Dr.
Nachtigall, I believe, is one that I am very pleased to have in
front of the Committee because I believe he has an enormous
amount of not only information but perspective to give in the
context of scientific inquiry. It is in that vein, Paul, that I
would like to ask you for the record--and we've talked about it
beforehand, not specifically what you were going to say but
talked about this issue on more than one occasion.
Do you recall my conversation with you, that I was
concerned that sound science was going to get whipsawed or
caught between ideology, if you will, and the motivation of
certain interests, regardless of how well motivated they are,
that the science actually involved would get lost in the
process. My hope was that we could discover some way perhaps in
between taking a sledgehammer, I think as Mr. Kildee put it
earlier in the day, to existing legislation and perhaps finding
a way to--I think I used the word stiletto. That was probably a
bit unfortunate. But some way to zero in on what could
profitably be done in a scientific way that wouldn't undermine
the essential features of either the Marine Mammal Protection
Act or the Endangered Species Act.
Could you comment on that a little further than your
testimony does?
Dr. Nachtigall. Yes, I believe I could, if I understand you
correctly.
I believe there is much more that can be done as far as
science and understanding the issues that we're dealing with. I
do get concerned about the whipsaw that you're talking about,
the fact that on one side you have people who don't want to do
anything, that essentially science wouldn't be allowed, and
we're working on the intricacies of how that might happen. On
the other side, we do have to make sure that we do protect the
species, particularly the marine mammal species that we have,
and unfortunately, we know very little about those species
we're trying to protect.
Mr. Abercrombie. Do you think it would be possible--You've
heard some of my questions earlier in the day, and my
observations. Do you think it would be possible if the
Department of Defense worked up--and I'm trying to get a hold
of this memo, by the way, that I referred to, because I could
not find it, the memo regarding how we could access the
question of exemption or regulation before you reach the level
of exemption, which I think might apply to marine mammal
research here, especially where the hearing is concerned.
Do you think it would be helpful if we tried to find and
put into place a methodology for that kind of implementation of
scientific research that would be short of either seeking
exemptions or short of trying to change the law completely?
Dr. Nachtigall. Yes. I--
Mr. Abercrombie. You don't really have a process available
to you right now to be able to appeal to either side, right?
Dr. Nachtigall. That's true, I don't really have that
process available. But I have been able to work very
successfully with a number of people in regard to assuring that
good science does get done. I think that's probably the essence
of what I'm talking about here.
Mr. Abercrombie. If we don't have such a process, if we're
not able to implement what the Department of Defense now admits
that it does not have, even though it has the possibility of
doing it as already exists in the law, isn't the only thing
that's going to be left then, especially if I understand Dr.
Kunich's testimony correctly, we're just going to end up in
court all the time.
Mr. Kunich. Absolutely.
Mr. Abercrombie. And that there is, in effect, a void right
now of a process available to try to resolve these issues, not
because we didn't anticipate it but because the DOD, to this
point, actually hasn't implemented it.
I'm talking about something short of the ``God Squad''
thing. It is quite clear that, in the memo that I read a
portion of to you, that they haven't even begun a guidance yet.
If we at least put that into effect, wouldn't you have more of
a fighting chance then to be able to come forward and avoid
having a court dictate to you, because you would be able to say
to the court, ``Look, we've got protocols in place here that
are quite adequate under the ESA and can meet any reasonable
standard of addressing the question of whether we're going to
harm, injure, et cetera any of the marine mammals.''
Dr. Nachtigall. Anything that will be able to lead to the
process that continues--be able to continue the work--I cited
that one instance where there was an experiment that was
actually stopped because of the fact that somebody was enjoined
by the courts to stop the very research that really needs to be
done. Anything that can be done to facilitate that research
being done would, in fact, be beneficial.
Mr. Abercrombie. Let me close, Mr. Chairman, because I know
the vote will come up, by saying that anybody who has seen Dr.
Nachtigall's lab, you will realize what has been done. He will
testify to that, that even my wife, who did not want to go out
there because she was afraid she couldn't stand seeing the
dolphins captive, if you will, right?
Dr. Nachtigall. Yes.
Mr. Abercrombie. Had her mind completely changed by
actually going out there and seeing what was actually taking
place, and understanding the value of scientific research that
you're undertaking.
Dr. Nachtigall. Yes. That was a very good opportunity for
us.
Mr. Abercrombie. And I think that's probably indicative,
Mr. Chairman, of what we can do if we can find a way--And I,
too, want to echo the Chairman's remarks, that I have great
confidence in you and your understanding of this and being able
to come up with something. If you are able to come up with
something, I would like to share in the credit with you--
[Laughter.]
--and if you are unable to do it, I reserve the right to
blame you entirely.
Mr. Gilchrest. We will pull that rabbit out of the hat.
I want to thank all of the witnesses for coming and
traveling so far today. We will continue to work on this issue
throughout the coming weeks, and certainly when we reauthorize
MMPA, go further in depth on many of these issues. Thank you
all for your input.
We would like for each of you, over the next week or so, to
give you a call at wherever you may be for some of the follow-
up questions that we didn't get to today. Thank you all very
much.
The hearing is adjourned.
[Whereupon, at 6:40 p.m., the Committee adjourned.]
[Responses to questions submitted for the record by Major
General Bowdon follow:]
Response to questions submitted for the record by Major General William
G. Bowdon, III, Commanding General, Marine Corps Base Camp Pendleton,
California, U.S. Marine Corps
QUESTION 1: Mr. Pombo: You have heard in the past few weeks and you
will probably hear today that the military is looking for exemptions
from the ESA and MMPA so that you can get out of your environmental
responsibilities under these acts. How do you respond?
Major General Bowdon: Marine Corps installations are essentially
``a tale of two cities'' in that some of the things we do mirror those
actions taken by cities, counties, and private companies. For example,
we operate utility systems, we repair equipment, and we provide your
Marines and Sailors housing and health care. We intend to maintain high
standards of compliance for these activities, and we do not seek any
changes in the application of laws that govern them. Some of things we
do, though, are uniquely military. For example, we train your Marines
for combat over much of our lands. We simply are looking for
clarification from Congress on how environmental laws are to be applied
for military unique activities.
We hold all our land in the public trust and our record of
stewardship of the natural resources entrusted to us by the American
people is exemplary. The status of endangered species populations on
our installations attests to this. The proposed legislation seeks to
balance our environmental responsibilities with our national defense
mission. We strongly believe that military training and the protection
of endangered species can be mutually achieved--provided flexibility is
provided for achieving a balanced approach. We need the help of
Congress to provide that balance.
QUESTION 2: Rep. Pombo: When INRMPS are developed, who sets the
recovery goals for the species in question?
Major General Bowdon: Recovery goals for species listed under the
Endangered Species Act (ESA) are established by a process specified by
that Act and U.S. Fish and Wildlife Service (FWS) regulations. This
process is separate from the development of Integrated Natural Resource
Management Plan (INRMP's). For example, during development and
coordination of Marine Corps Base (MCB) Camp Pendleton's INRMP with the
FWS, species recovery goals were not raised by the FWS and specific
population targets were not established as INRMP objectives. Instead,
Camp Pendleton's INRMP established ecosystem management practices to
enhance habitat value.
QUESTION 3: Rep. Pombo: How does NEPA fit into the process of
INRMPs?
Major General Bowdon: All Integrated Natural Resource Management
Plan (INRMP's) undergo National Environmental Policy Act (NEPA)
analysis and documentation before they become final. In the case of
Camp Pendleton's INRMP, an Environmental Assessment was conducted.
QUESTION 4: Rep. Pombo: Why has DOD not exercised Section 7(j) of
the ``God Squad'' under Environmental Species Act (ESA)?
Major General Bowdon: We do not believe invoking the use of an
exemption for day-to-day activities is prudent. Exemptions are a bit
like an emergency toolkit. Everyone should have an emergency toolkit in
their car in case of breakdown on the side of the road. However, if you
need to use the toolkit everyday to get to work, it is time to replace
the car. Thus far, we have not needed to exercise the use of Section
7(j). However, as the U.S. Fish and Wildlife Service is forced to
designate critical habitat on military installations via the courts, it
is clear that we may need to invoke this section of law. Unfortunately,
critical habitat designation on military lands appears to be possible
across the nation. Invoking Section 7(j) for every instance would argue
that its time to ``:replace the car.''
QUESTION 5: Rep. Pombo: What is the life span of your INRMP? Is
this typical for most INRMPS?
Major General Bowdon: The Sikes Act requires Integrated Natural
Resource Management Plan (INRMPs) be reviewed and updated every five
years unless conditions or military mission requires a more frequent
update. We intend to update the MCB Camp Pendleton INRMP every 5 years.
QUESTION 6: Rep. Pombo: Is current or possible development in the
immediate vicinity of your installation a factor in some of the
training difficulties you have experienced or may experience in the
future?
Major General Bowdon: Development and urbanization is the
underlying factor of most training difficulties. The destruction and
fragmentation of habitat is listed as the number one reason for most
species requiring protection under the Environmental Species Act (ESA).
As open space off Base is converted to homes and businesses, the
remaining habitat on Base becomes more important to the continued
survival of listed species. In the case of Camp Pendleton, the base now
supports regionally significant populations for the tidewater goby,
Pacific pocket mouse, and least Bell's vireo (100%, 85%, and 45%,
respectively, of the remaining populations). This importance results in
increased regulation and limitation of training activities on military
lands.
QUESTION 7: Rep. Pombo: Are you aware of the new authority Congress
provided the Department last year to enter into arrangement with local
governments and conservation groups to create ``buffers'' of protected
land around military bases? Do you think that use of the authority at
Pendleton could help avoid future additional encroachment or perhaps
even reduce the current level of restrictions you face?
Major General Bowdon: Use of this authority will help slow the rate
of additional encroachment especially those created by development
adjacent to the Base (noise complaints, edge effects on species and
habitat management programs, stormwater run-off and erosion). However,
this ``buffer defense'' is not an encroachment cure, as avoidance of
future additional encroachment or reduction to the current level of
restrictions will require a more regional solution that prevents the
loss of habitat for species with declining populations and recovers
already listed species. Funding in sufficient amounts to acquire,
restore, and manage habitat throughout a listed species range will be
required.
QUESTION 8: Rep. Pombo: Have you or your staff done any work with
local governments and conservation groups to explore the potential use
of this new authority?
Major General Bowdon: Camp Pendleton has been working with San
Diego County, Orange County, Riverside County, San Diego State
University, Trust for Public Land, The Nature Conservancy, Sierra Club,
Wildlife Habitats League, and a host of other conservation groups since
July 2002 to establish a coordinated cooperative process for the
identification and acquisition of critical properties that support the
conservation of species of regional importance. This process is
integrating data from several ongoing Habitat Conservation Programs to
prioritize areas that are essential for conservation and for which
cooperative partners will be able to achieve the greatest value for
their investment. While Camp Pendleton has not yet been a participant
in any of these acquisitions, two of the participating organizations
that were brought together by this effort have teamed to acquire a key
property to help preserve an essential corridor for large mammals that
supports regional biodiversity goals and helps MCB Camp Pendleton by
avoiding development proximate to critical ranges and maneuver areas.
We anticipate Camp Pendleton will participate with one or more partners
for acquisition of lands adjacent/proximate to the base later this
year.
QUESTION 9: Rep. Pombo: If the Congress were to pass the Readiness
and Range Preservation proposals, do you think the ``buffering
authority'' would still be a valuable tool for addressing encroachment?
Major General Bowdon: The ultimate solution to restrictions on
military readiness from endangered species is to ensure sufficient
viable populations and habitat exist to allow delisting and long term
sustainability of species. Use of the ``buffering authority'' is key
towards ensuring suitable habitat for sensitive biological resources is
available without adversely affecting military training requirements.
While some environmental advocacy organizations disagree with the
Readiness and Range Preservation proposals, all agree that the
buffering authority granted by Congress is a valuable tool to prevent
future degradation of military training capabilities. Many of these
environmental advocacy groups are partnering with us to acquire
undeveloped lands adjacent/proximate to Marine Corps bases and
stations.
______
[Responses to questions submitted for the record by Colonel
DiGiovanni follow:]
Response to questions submitted for the record by Colonel Frank C.
DiGiovanni, Chief, Ranges, Airfields and Airspace, Operation and
Requirements Division, Air Combat Command, U.S. Department of the Air
Force
ENDANGERED SPECIES ACT & MARINE MAMMAL PROTECTION ACT
Question 1: Congressman Pombo--You have heard in the past few
weeks, and you will probably hear today, that the military is looking
for exemptions from the ESA and MMPA so that you can get out of your
environmental responsibilities under these acts. How do you respond?
Answer: Col DiGiovanni--We are not seeking exemptions for the ESA
or the MMPA. The Readiness Range Preservation Initiative (RRPI) seeks
to clarify elements of certain specific environmental statutes.
For the ESA, what is proposed through the RRPI is to codify an
existing policy of the U.S. Fish and Wildlife Service (USFWS). That
policy accepts Integrated Natural Resource Management Plans (INRMP)
that provide ``special management considerations or protection'' for
listed species as being sufficient to preclude designation of critical
habitat. RRPI would formalize this policy, and would also continue to
protect listed species since all provisions in the ESA remain
unchanged.
We already consult extensively with the USFWS. We consult when a
species is listed, then again when developing our INRMPs, and yet again
when we have proposed actions that may affect the listed species or its
habitat. If the USFWS reviews our INRMP and concludes it does not
adequately protect the habitat of a listed species, they can either ask
us to amend the plan or they may designate our land as critical
habitat.
By working together with the USFWS, we can achieve a balance
between military readiness and stewardship of the land entrusted to our
care.
For the MMPA, we are not seeking exemptions but a definitional
clarification of the term ``harassment'' for purposes of military
readiness.
Question 2: Congressman Pombo--When Integrated Natural Resource
Management Plans (INRMPs) are developed, who sets the recovery goals
for the species in question?
Answer: Col DiGiovanni--The goals and objectives for recovery of
endangered species are developed by the U.S. Fish and Wildlife Service
(USFWS). The content of the INRMPs is developed by the Air Force in
cooperation with the USFWS and the State Fish and Game Agency, along
with public participation through the National Environmental Policy Act
(NEPA).
The USFWS frequently recognizes the expertise of Air Force wildlife
biologists, inviting them to be members of the endangered species
recovery team. For example, biologists at Luke AFB in Arizona are
members of the recovery team for the Sonoran Pronghorn, and they
participated in the development of the recovery plan.
Development of the INRMP for the Barry M. Goldwater Range in
Arizona was a multi-agency effort. Participants included the Air Force,
Marine Corps, Bureau of Land Management, USFWS representatives from the
Cabeza Prieta National Wildlife Refuge, the USFWS Ecological Services
office in Phoenix, the Arizona Game and Fish Department, and the Organ
Pipe Cactus National Monument (National Park Service).
Question 3: Congressman Pombo--How does the National Environmental
Policy Act (NEPA) fit into the process of the Integrated Natural
Resource Management Plans (INRMPs)?
Answer: Col DiGiovanni--In almost every instance, an INRMP will
direct at least one ``major federal action'' subject to NEPA. The Air
Force attempts to provide a level of consistency in the way it applies
its National Environmental Policy Act's (NEPA) responsibilities in the
INRMP preparation process. Yet, each INRMP is unique and Air Force
program managers retain flexibility to meet their specific planning and
management challenges as needed.
Since development of INRMPs is usually considered a Federal action,
compliance with NEPA is required. Air Force program managers complete
assessments to determine whether the action(s) proposed in development
of their INRMP may significantly affect the quality of the environment
in accordance with NEPA guidelines. Throughout this process, formal
NEPA documentation will be developed to inform decision-makers of the
potential environmental effects of the proposed actions.
Question 4: Congressman Pombo--Why has DoD not exercised Section 7
(j) of the ``God Squad'' under the Endangered Species Act (ESA)?
Answer: Col DiGiovanni--The exemption process is only available
after a lengthy process and when there is a total impasse between the
ESA and the federal agency actions. Once granted, the action is
exempted from the prohibitions of the ESA. The Air Force has never
needed such a broad exemption to accomplish our training objectives. An
Integrated Natural Resource Management Plan (INRMP) gives us
flexibility to balance military training with conservation of natural
resources, including threatened and endangered species. Section 7(j)
provides relief under a worst-case scenario when national security is
at stake.
It is far better to work with our partners at the U.S. Fish and
Wildlife Service (USFWS) and the State Fish and Game Agencies to
balance our responsible use and care of these training landscapes. The
ESA provision in the Readiness and Range Preservation Initiative simply
codifies the existing USFWS policy of allowing acceptance of our INRMPs
as ``special management considerations'' in lieu of designating
critical habitat. By complying with these considerations, the same
protection is afforded the species and the AF's needs are also met.
Question 5: Congressman Pombo--We have heard a lot about ``train
the way you fight.'' Why is this important?
Answer: Col DiGiovanni--An analysis by the Defense Science Board
Task Force (Training Superiority and Training Surprise, Jan 2001)
revealed the highest losses among fighter pilots occur within the first
ten combat missions. If we replicate these first ten missions in a
realistic training scenario, our aircrews stand a much better chance of
coming home from combat both victorious and alive.
We also need to develop and practice new techniques to ensure
combat effective-ness. For example, we developed new tactics where
ground parties directed attacks on time-sensitive targets, specifically
Scud launchers. This technique was put to the test recently in Iraq
when Saddam Hussein was reportedly in a Baghdad restaurant. Within only
minutes of first notification, there were bombs on target. We can
accomplish these missions in the real world because we practice these
techniques in training.
In combat situations, aircrews may have only moments to make a life
or death decision. The outcome of the decision is directly related to
the pilot's training. Work-around or modified training, due to
encroachment concerns, can instill pilots with inappropriate flying,
threat evasion, or munitions delivery behaviors. These inappropriate
behaviors may lead to ineffective performance in combat and loss of
pilot and aircraft.
Question 6: Congressman Pombo--``Tell us from your aviator
experience why you need the flexibility to react quickly to new mission
requirements.''
Answer: Col DiGiovanni--In recent years, each operation or conflict
has been significantly different from those that preceded it. Rather
than plan to fight the last war, we train across a broad spectrum of
scenarios, with a focus on developing new tactics.
Immediately after the September 11 attacks, we began planning for
operations in Afghanistan, but it soon became apparent that there were
few conventional targets. The Mujahideen fought the Soviets from caves,
so we quickly developed new tactics, built simulated caves and
terrorist training camps at our Nevada and Utah Test and Training
Ranges, and then sent in the aircrews to practice. Within four weeks of
9/11, those aircrews were engaging Al-Qaida terrorists and Taliban
forces.
Flexibility was the key for preparing for this mission, and you
know the results. Our Integrated Natural Resource Management Plans also
give us flexibility while providing necessary protections to listed
species. If the land were designated critical habitat, we would have
spent weeks in consultation, and there is little doubt that we would
not have completed the training in such a short time.
War is a dynamic process; battle plans, methods of engagement, and
targets are situational specific. Although our training covers a
multitude of scenarios, unforeseen new mission requirements often
emerge during campaigns that are novel and unique. Without the ability
to rapidly respond to new emerging threats or targets in a timely
manner (days or weeks), the warfighter is at a disadvantage and at
greater risk
______
[Responses to questions submitted for the record by
Brigadier General Fil follow:]
Response to Questions submitted for the record by Brigadier General
Joseph F. Fil, Jr., Commanding General, National Training Center and
Fort Irwin, California, U.S. Department of the Army
GENERAL QUESTION
RESPONSE TO EXEMPTION CONCERN
Question 1: You have heard in the past few weeks and you will
probably hear today that the military is looking for exemptions from
the Endangered Species Act (ESA) and Marine Mammal Protection Act
(MMPA) so that you can get out of your environmental responsibilities
under these acts. How do you respond?
Answer: The proposed legislation is not an exemption from the
Endangered Species Act. Most of the Act will still apply as written.
The legislation only provides an alternative to the designation of
critical habitat on military lands. The legislation will only clarify
and confirm existing regulatory policies concerning future designations
of critical habitat that recognize the unique nature of our activities.
It would confirm the prior Administration's decision that an Integrated
Natural Resources Management Plan (INRMP) may, in appropriate
circumstances, obviate the need to designate critical habitat on
military installations. These plans for conserving natural resources on
military property, required by the Sikes Act, are developed in
cooperation with state wildlife agencies, the U.S. Fish and Wildlife
Service (FWS), and the public. In most cases they offer comparable or
better protection for the species because they consider the base's
environment holistically, rather than using a species-by-species
analysis.
Environmental groups are challenging the Administration's decision
that INRMPs may adequately provide for appropriate endangered species
habitat management. They cite Ninth Circuit Court case law suggesting
that other habitat management programs provided an insufficient basis
for the FWS to avoid designating Critical Habitat. These groups claim
that no INRMP, no matter how protective, can ever substitute for
critical habitat designation. This legislation would confirm and
insulate the FWS policy from such challenges.
I would also note that this legislation does not automatically
eliminate future critical habitat designations, precisely because under
the Sikes Act, the statute giving rise to INRMPs, the FWS is given
approval authority over those elements of the INRMP under its
jurisdiction. This authority guarantees the FWS the authority to make a
case-by-case determination concerning the adequacy of our INRMP as a
substitute for critical habitat designation within Department of
Defense lands. If the FWS does not approve our INRMP, the legislation
will not protect the base from critical habitat designation
SETTING RECOVERY GOALS
Question 2: When Integrated Natural Resources Management Plans
(INRMPs) are developed, who sets the recovery goals for the species in
question?
Answer: The proposed legislation would not change the existing
process for developing Recovery Plans and setting recovery goals. The
regulator (in our case the U.S. Fish and Wildlife Service (FWS)) sets
``recovery goals'' through the development of a Recovery Plan, which is
also required by the Endangered Species Act (ESA). When INRMPs are
developed, FWS maintains authority over the species through the ESA
Section 7 consultation process. The Department of Defense, including
the component Armed Services, has a duty under Section 7 of the ESA to
provide for the conservation and recovery of listed species. We meet
this duty by consulting with the U.S. Fish and Wildlife Service to
determine what effect our actions will have on listed species and what
affirmative steps we can take to provide for their conservation.
Specific conservation measures (related to established recovery goals)
will be incorporated into INRMPs for implementation.
NATIONAL ENVIRONMENTAL POLICY ACT ROLE
Question 3: How does National Environmental Policy Act (NEPA) fit
into the process of Integrated Natural Resources Management Plans
(INRMPs)?
Answer: The NEPA requires systematic examination of possible and
probable environmental consequences of implementing a proposed action
along with reasonable alternatives to the proposed action to ensure
decision-making reflects our environmental values.
The Army policy is that the creation and implementation of an INRMP
requires the appropriate level of NEPA analysis. The NEPA analysis and
documentation must be completed prior to approval and implementation of
the INRMP. The Army uses the NEPA process to achieve public comments
prior to a final decision. This allows public stakeholder comments
concerning the INRMP, in addition to any specific public comments
generated in the early stages of the INRMP process.
DEPARTMENT OF DEFENSE ENDANGERED SPECIES ACT EXEMPTION
Question 4: Why has Department of Defense (DOD) not exercised
Section 7(j) of the ``God Squad'' under Endangered Species Act (ESA)?
Answer: Although resource intensive and not without impacts on
training realism, the National Training Center (NTC) has so far been
able to balance its mission requirements with the conservation of the
desert tortoise and Lane Mountain milk-vetch. We have not yet reached
an irreconcilable conflict between national security and conservation
warranting the use of Section 7(j). As clearly intended by Congress, an
exemption under Section 7(j) must be reserved for those rare situations
when all other options are exhausted and national security warrants it.
Rather than take the drastic step of seeking an exemption, the NTC, as
well as other DOD installations, continues to seek ways to maintain an
effective balance between mission and conservation. The Range and
Readiness Preservation Initiative ESA provision will assist us in
maintaining the flexibility that we need to preserve this delicate
balance.
LANE MOUNTAIN MILK-VETCH
Question 5: You testify that the U.S. Fish and Wildlife Service
(FWS) originally estimated that there were 1,200 Lane Mountain milk-
vetch plants. Subsequent surveys indicated that there were between
30,000 and 70,000. What was the recovery goal? Do we have any idea how
large the numbers have ever been at their highest point? At what point
do we consider this plant not really endangered?
Answer: The FWS has not yet published a Recovery Plan for the Lane
Mountain milk-vetch (LMMV), therefore there is no recovery goal. A
draft Recovery Plan was published prior to the 2001 field survey
conducted by Fort Irwin. In that plan, the recovery goal was to
conserve and protect all known occurrences of the species. This goal
was based on an estimated total population of 1,200 plants in three
locations.
We do not have sufficient scientific information to give a reliable
idea of how large the numbers have ever been at their highest point.
There is no evidence that this plant has become endangered due to a
decline in numbers or that there were ever any more of them than there
are now. This plant grows in a remote area that is composed of
predominantly federal lands and is largely uninhabited. The few
activities that occur in the area appear to have had little impact on
the plant or its habitat. There is some ground disturbance due to old
mining claims and recreational off-road activity, but in general the
area remains untouched. It has been theorized that this plant may be a
relic species, i.e. it is a leftover from a wetter time and is
naturally diminishing in range and numbers due to climatic change in
the desert. Astragalus in general, including LMMV, is known for having
small geographic ranges and low numbers.
The numbers of this desert plant, like other desert plants of the
same type, can vary widely from year to year. The number of plants seen
in any given year appears to be solely dependent on rainfall and
weather patterns. It is thought that the plants basically die back each
summer and then grow again with the onset of enough rainfall. It is
also believed that individuals may live ten years or more. The 2001
Fort Irwin-sponsored survey was conducted in a year of average rainfall
that was preceded by two years of extreme drought; however, the pattern
of rainfall made the season a particularly robust one with plenty of
growth and seed production. If there were several years in a row of
good rainfall the numbers may increase to hundreds of thousands of
plants--and then in a drought year, as in 2002, the visible plants may
be only a few hundred.
The LMMV is considered endangered as long as the FWS lists it as
such. In cases where a species recovers, becomes extinct, or the
original listing decision is determined erroneous (e.g. new populations
have since been discovered), the FWS has a delisting process. This
formal process requires the FWS to review five listing factors as they
pertain to the species, except where the species has become extinct:
(1) whether there is a present or threatened destruction, modification
or curtailment of the species habitat or range; (2) whether the species
is subject to over utilization for commercial, recreational,
scientific, or educational purposes; (3) whether disease or predation
are factors; (4) whether there are inadequate existing regulatory
mechanisms in place; and, (5) whether there are other natural or
manmade factors affecting the species continued existence. Delisting
may be initiated by the FWS or it may be petitioned by other entities.
CHANGES IF ENDANGERED SPECIES ACT PROPOSAL IS PASSED
Question 6: If these changes to the Endangered Species Act are
passed, what are the on the ground changes to the Army's actions or
management?
Answer: The National Training Center could gain immediate
flexibility in conserving Lane Mountain milk-vetch (LMMV). Critical
habitat designation can impose rigid limitations on military uses of
bases, denying commanders the flexibility to manage their lands for the
benefit of both readiness and endangered species. In the case of LMMV,
my staff can make informed, site-specific decisions on the right
habitat to protect without unnecessarily impacting our mission.
Critical habitat designation removes that flexibility by designating
areas in a broad-brush fashion, requiring protection of a fixed area
instead of actual habitat that biologists at the National Training
Center are capable of determining more accurately in the process of
conserving the species.
These changes would also affect us if additional critical habitat
were proposed for designation on the installation. If that occurs in
the future, we could use our Integrated Natural Resources Management
Plan to prevent an additional designation of critical habitat while
still providing a conservation benefit to the listed species.
REDUNDANCIES OR DUPLICATIONS THAT MAY BE REDUCED/ELIMINATED
Question 7: If these changes to the Endangered Species Act (ESA)
are passed, what redundancies or duplications will be reduced/
eliminated?
Answer: At Fort Irwin we could avoid multiple consultations for
actions in areas that might have been designated as critical habitat,
but are, instead, managed under the Integrated Natural Resources
Management Plan. The legislation change DOD is seeking would reduce the
regulatory burden under ESA Section 7, allowing both Army and
administrators (US Fish and Wildlife Service and National Oceanic &
Atmospheric Administration - Fisheries) to focus limited resources on
conservation activities. Conservation of endangered species under both
Sikes Act and ESA critical habitat constraints is largely redundant. In
most cases, re-initiation of consultation due to the designation of
critical habitat is unnecessarily duplicative.
QUESTIONS SUBMITTED BY THE HON. NICK J. RAHALL, II
PERFORMANCE IN IRAQ
Question 1: The military has received accolades for its purpose in
Iraq. Just last week Secretary Rumsfeld praised U.S. troops as ``the
best trained, best equipped and finest troops in the world.'' How was
the ESA a hindrance to the military?
Answer: I echo Secretary Rumsfeld's conclusions. The U.S. Military
is indeed the finest in the world. That is not in question. Our
uncompromising objective is decisive victory every time our troops
engage an enemy in combat. We will accept nothing less.
The ESA constrains military training when management requirements
associated with the protection of species and their habitat restrict
access to doctrinally required amounts of training land, restrict the
tires training lands are available to units, or restrict the numbers
and types of training activities and equipment that can take place or
be used on certain training lands. These constraints reduce the realism
of training events, limit training to less than doctrinal distances,
and often require units to deploy to other less constrained training
facilities. Given the flexibility to work with State and federal
regulatory agencies to develop and implement a quality Integrated
Natural Resource Management Plans (INRMPs), most commanders can balance
the competing requirements to protect species with the need for
doctrinally sound military training. When rigid requirements such as
those associated with the designation of Critical Habitat are
implemented in lieu of quality management tools like the INRMP,
flexibility is lost, resources (both conservation and training) are
wasted, and training realism is reduced.
SITES AVAILABLE FOR THE MILITARY
Question 2: It seems that there are many sites available for
weapons testing or military training activities not just one
installation. In contrast, endemic species rely on unique locations and
cannot be transported just anywhere. Is it possible for the U.S.
military to make arrangements with other countries if we do not have
the perfect location to conduct a specific military exercise or test a
weapon?
Answer: The question implies that Army training events are easily
relocated or that all that is necessary to conduct training is an open
piece of ground. This is not the case. Modernized Army ranges provide
instrumentation such as targetry, observation and control capabilities,
and communications systems. They are designed to meet very specific
doctrinal requirements. Access to contiguous plots of open maneuver
land in the sizes necessary to approximate realistic combat is
extremely rare. Nearly every major Army training installation has a
shortage of usable maneuver land. Firing ranges are often scheduled to
maximum capacity. Army units take advantage of deployed training
opportunities when they are available, are fiscally responsible, and
make sense from the perspective of operational tempo and personnel
tempo. However, overseas training opportunities are limited by the
expense of training deployments, the availability and adequacy of
training and support facilities in other countries. Relying on other
countries to provide the facilities necessary to defend the United
States is certainly not along-term solution.
In the case of my installation, the National Training Center, Fort
Irwin, CA, there is no other facility in the world that provides this
type of military training experience. At the NTC, we employ four key
elements, not available at other training facilities, to train brigade
combat teams. We have a full-time, dedicated Opposing Force Regiment
(OPFOR); professional full-time trainers to observe and provide
feedback to the training units; a sophisticated instrumentation system
to track the battles, and a realistic battlefield that replicates the
stress and conditions of actual combat. We are constantly examining our
training, equipment, and training area, to ensure they support
potential future joint and combined combat environments and they
provide the realistic geographic battle space to train Brigade Combat
Teams.
CURRENT FWS POLICY
Question 3: Both Major Bowdon and Brigadier General Fil's testimony
indicated that a recent Federal court ruling p1aces the discretion
given to the Interior Secretary in Section (4)(b)(2) in jeopardy. But I
do not believe this is the correct reading of the decision in Center
for Biological Diversity v. Gale Norton. The court said that the ESA
requires the Secretary to designate critical habitat essential to the
conservation of species and may also require special management
considerations or protection. Assistant Secretary Manson also alluded
to this in his testimony when he recommended a change in the bill in
light of the court decision. Given that the court did not question
Interior's discretion not to designate critical habitat under Section
4(b)(2), please explain how your current practice to exclude a military
installation from critical habitat designation if an adequate INRMP is
in place is threatened?
Answer: The court's opinion in Center for Biological Diversity v.
Gale Norton calls into serious question the U.S. Fish and Wildlife
Service's policy of not designating critical habitat on land covered by
an adequate management plan affording the ``special management
consideration or protection'' that critical habitat is intended to
provide. This is the policy that the U.S. Fish and Wildlife Service has
relied on to allow Integrated Natural Resources Management Plans
(INRMP) to stand in place of designation of critical habitat on
military installations. This policy is beneficial in ensuring that
Department of Defense (DOD) installations will have the flexibility to
effectively balance their mission and conservation responsibilities
through INRMPs, without the rigid constraints currently imposed by
critical habitat designation. This, however, does not mean that INRMPs
are now entirely irrelevant to the U.S. Fish and Wildlife Service when
they weigh the costs and benefits of critical habitat designation under
Section 4(b)(2). The court granted deference to the Department of
Interior's interpretation of ``relevant impact'' under Section 4(b)(2),
recognizing that the U.S. Fish and Wildlife Service has broad
discretion to determine what factors it will consider in deciding
whether or not to exclude lands from designation. We believe that the
existence of an effective INRMP should still be considered by the U.S.
Fish and Wildlife Service in determining whether designation of
critical habitat would add any additional conservation benefit to the
species. While the court's decision may not preclude the U.S. Fish and
Wildlife Service from considering an INRMP as a factor in making
critical habitat designations under Section 4(b)(2), there is inherent
uncertainty and litigation risk in this process that would be
eliminated under DOD's Readiness and Range Preservation Initiative
provision.
EXISTING AND FUTURE CRITICAL HABITAT DESIGNATION PROBLEMS
Question 4a: In your written testimony, you mention the critical
habitat that is designated on 22,000 acres of the military base. I was
under the impression that with the authorization of the NTC expansion,
the 22,000 acres of critical habitat would be mitigated and could be
used for training purposes. Indeed, Public Law 106-554 specifica1ly
authorizes to be appropriated $75 million for ``the implementation of
conservation measures necessary for the final expansion plan for the
National Training Center to comply with the Endangered Species Act.''
Why, when Congress has enacted legislation specific to the National
Training Center at Fort Irwin mandating the conservation of the desert
tortoise AND authorizing $75 M to do it, is this still a problem?
Answer: While Public Law 106-554 authorizes $75M for new
opportunities for conservation of desert tortoise, it does not
specifically change the critical habitat designation for the Fort Irwin
lands that are proposed to be opened for training use. The problem for
the National Training Center and Fort Irwin is that 22,000 acres of
former training land on Fort Irwin, and over 70,000 acres of the new
expansion lands, are currently designated as desert tortoise critical
habitat. Under the Endangered Species Act, the designation of critical
habitat requires federal agencies that may affect endangered species or
adversely modify such lands to consult with the U.S. Fish and Wildlife
Service to consider the impacts of its activities on endangered
species. In addition, the federal agency must determine whether its
proposed action would ``adversely modify'' any designated critical
habitat. The authorization for funding will allow Fort Irwin the
potential ability to mitigate and compensate for impacts to endangered
species and critical habitat present in the project area. We believe
the desert tortoise conservation measures that are incorporated into
the expansion plan will provide adequate mitigation and compensation to
avoid jeopardy, but the Endangered Species Act consultation process
must be followed to a final conclusion before the use of the land is
approved.
EXISTING AND FUTURE CRITICAL HABITAT DESIGNATION PROBLEMS
Question 4b: In your written testimony you state that ``the
potential designation of critical habitat may...make this area totally
unusable for Brigade Combat Team training by the NTC.'' I am fairly
certain tat training restrictions on critical habitat are made by the
FWS in consultation with the DOD after critical habitat is designated.
Based on this sequence of events, your testimony would appear to be
pure speculation. In fact, historically the FWS has tried not to place
restrictions on critical habitat where it adversely impacts training.
Is this statement simply your prediction about events that will
transpire in consultation?
Answer: My statement is an assessment of what could and has
happened based on the experiences of past consultations. The National
Training Center and Fort Irwin has engaged in two formal consultations
with U.S. Fish and Wildlife Service concerning our military training
requirements. Each consultation resulted in some additional training
restrictions. It is true that the U.S. Fish and Wildlife Service may
exclude designation of critical habitat when it determines that
benefits to the species would be outweighed by the adverse consequences
to military readiness under Section 4(b)(2) of the Endangered Species
Act. However, once the U.S. Fish and Wildlife Service designates
critical habitat for a species, it must continually consider actions
that may adversely impact the habitat.
Our current biological opinion requires that there can be no ground
disturbing activities on the 22,000 acres of former training land in
desert tortoise critical habitat. This means no off-road tactical
vehicle use and no digging. We are limited to dismounted patrols in
these 22,000 acres which makes the area mostly unusable for the type of
training we are required to accomplish. Additionally, 70,000 acres of
the new expansion lands are designated desert tortoise critical
habitat; it is possible that the same restrictions could be put in
place for this area.
Critical habitat for Lane Mountain Milk-vetch has not been
designated, but the critical habitat designation is court ordered to be
final by September 15, 2004. The designation could include the whole
western expansion area using a broad-brush approach. We are concerned
that severe restrictions, similar to those for actions in desert
tortoise critical habitat, will result from future Lane Mountain Milk-
vetch consultations even if we are successful in mitigating for our
impacts to desert tortoise in the same area. Passing the Readiness and
Range Preservation Initiative could provide some needed flexibility to
our situation, but would not affect our responsibility to conserve
species and to consult with the Service.
______
[Responses to questions submitted for the record by Rear
Admiral Hathaway follow:]
Response to a question submitted for the record by RADM Jeffrey J.
Hathaway, Department of Homeland Security, United States Coast Guard
MARINE MAMMAL PROTECTION ACT /ENDANGERED SPECIES ACT
QUESTION: I know the Coast Guard may have restructured your
training or operations due to the Marine Mammal Protection Act (MMPA)
or Endangered Species Act (ESA). Has any operation of the Coast Guard
been prevented or prohibited from taking any action taken by the NOAA
or the DOI? Has a seal on a buoy ever prevented the Coast Guard from
doing maintenance for aids to navigation?
ANSWER: No, the Coast Guard has not been prevented or prohibited
from taking any action by the National Oceanic and Atmospheric
Administration (NOAA) or the Department of Interior (DOI) due to the
Marine Mammal Protection Act (MMPA) or Endangered Species Act (ESA).
Although no operations or training have been prevented or prohibited,
including aids to navigation, the Coast Guard has issued guidelines to
field units to schedule or delay activities to minimize or eliminate
the negative impact to the protected species. For instance, Aids to
Navigation (ATON) units schedule routine service of lighted aids for
periods when specific species of birds are not nesting. The Coast Guard
works closely with NOAA and DOI (Fish and Wildlife Service) to ensure
Coast Guard operations can be conducted while complying with the MMPA
and ESA.
______
[Responses to questions submitted for the record by Dr.
Hogarth follow:]
Response to questions submitted for the record by Dr. William T.
Hogarth, Assistant Administrator for Fisheries, National Marine
Fisheries Service, National Oceanic and Atmospheric Administration,
U.S. Department of Commerce
Questions Submitted by Chairman Richard Pombo
Question 1: Is your agency conducting any research on the effects
of various sounds on marine mammals? How much research is being funded
by the Navy and/or NMFS? If not for this type of research, how much
would we know about the acoustic ranges of various marine mammals?
Answer: The National Marine Fisheries Service (NOAA Fisheries)
supports a scientific program related to acoustics and the effects of
noise on marine animals (mammals and turtles) at a level of $200,000
per year (for each of the last three fiscal years). Because this
program is a new one and receives only modest support, most of the
funds have been used to convene scientific workshops to compile and
interpret the existing scientific information and to recommend specific
areas and priorities for future research. Specifically, these funds
have been used to support workshops (Acoustic Resonance, Auditory
Brainstem Response, Temporary Threshold Shift), an NRC panel on ocean
noise, the development of acoustic criteria (noise standards) for the
agency, research on whale calls, and the creation of a computer program
for calculating safety zones around sound sources (for issuance of
Marine Mammal Protection Act (MMPA) authorizations).
The Office of Naval Research (ONR) funds most of the research being
done on marine noise. NOAA conducts some research alone and some in
cooperation with ONR. The NOAA Fisheries budget for noise research is
$200K per year. The ONR budget for noise research is $7 million per
year. NOAA's Office of Oceanic and Atmospheric Research spends
approximately $1 million per year on passive acoustic monitoring of the
oceans, including whale calls. All NOAA Fisheries regions use passive
acoustic detection to locate whales during marine mammal surveys. This
monitoring effort differs from noise research, and is not described in
detail here.
Before the current ONR research effort began 7 years ago, hearing
ranges were known for only 5 or 6 of the 130 species of marine mammals,
and nothing was known about the effects of noise on marine mammal ears.
ONR has provided much needed information since then. Increased research
has helped us gain a better understanding of the hearing ranges of
between 12 and 15 marine mammal species. Other than the Navy and NOAA
Fisheries efforts, the National Science Foundation and the oil and gas
and seismic industries may soon contribute to the understanding of
acoustics and marine mammals through donations to the National Ocean
Partnership Program. Minerals Management Service (MMS) has contributed
through monitoring programs as a part of authorizations (through
regulations or Incidental Harassment Authorizations) to take marine
mammals incidental to their activities. MMS has also produced a needed
model of underwater explosions related to rig removals. All these
efforts provide data on behavioral responses of marine mammals and
turtles to anthropogenic sound. No federal agency has yet conducted
research on the effects of noise and explosions on fish, although some
research has been conducted.
Question 2: We have heard from a number of scientists, groups and
individuals that the proposed changes to the definition of
``harassment'' are problematic due to the inclusion of ``significant''
in paragraph (i) and the use of ``natural behavioral patterns'' in
paragraph (ii). Why did the agency propose this language instead of the
language recommended in the National Research Council's report?
Answer: The Administration used the NRC recommendations as a
starting point for revising the current harassment definition to
clarify that the definition should focus on those activities that are
likely to result in significant negative impacts on marine mammals. The
Administration's bill achieves this goal. Certain additional agency
concerns affected some of the specific language choices in the
Administration's proposed amendments to the definition.
Specifically, the definition of harassment proposed by the
Administration would:
1) Make the definition more enforceable by eliminating the need to
prove first that activities involve ``pursuit, torment, or annoyance,''
terms that are currently undefined in the MMPA, before they can qualify
as Level A or B harassment;
2) Make more explicit that certain activities directed at marine
mammals may constitute harassment; and
3) Focus the harassment standard on those activities that are
likely to result in significant negative impacts on marine mammals,
rather than those that potentially result in de minimus effects, which
could unnecessarily tax the agency's resources and overburden the
regulated community. The Administration's definition of harassment
differs from the NRC definition on this point in two ways:
The Administration's definition includes Level A
harassment (not addressed by the NRC) and differs from the current MMPA
primarily by adding the word ``significant'' before the term
``potential.''
The NRC recommended the term ``meaningful disruption of
biologically significant activities.'' While the Administration
definition differs, it captures the same concept of focusing on those
activities that exceed a de minimus threshold. The NRC term may be too
constraining if the term ``biologically'' is interpreted too narrowly.
In either case, regulations or guidance could provide a clearer
definition of terms.
Question 3: The new paragraph (iii) in the proposed change to the
definition of ``harassment'' has also been an issue of concern. This
paragraph appears redundant to paragraph (ii) in the definition, but
contains ``any act that is directed toward a specific marine
mammal...'', but does not contain the ``by causing disruption of
natural behavioral patterns'' qualifier. Why did the agency propose
including this language in the definition?
Answer: The Administration believed it was necessary to make more
explicit in the definition of harassment that activities directed at
marine mammals in the wild may constitute harassment because they are
potentially injurious to the animals. This language is intended to
clarify that activities such as closely approaching, swimming with, or
touching marine mammals may, in certain circumstances, constitute
harassment. Thus, the second tier of the Level B harassment definition
would help NOAA Fisheries and/or the USFWS better regulate, and where
appropriate prosecute, activities that may not lead to abandonment or
significant alteration of the marine mammal's natural behavioral
pattern at the time, but are likely to cause disruption of natural
behavioral patterns that are associated with cumulative, long-term harm
to marine mammals.
Question 4: Scientists are concerned this will cause more
restrictions on their research. Is this true?
Answer: This language will not impose increased restrictions on the
scientific research community. The scientific research community
already obtains scientific research permits or general authorizations
for Level B harassment under MMPA section 104 for scientific research
activities directed toward an individual, group, or stock of marine
mammals in the wild, and section 104 would not be affected by this
second tier of the definition. Under the new definition of harassment,
research activities involving Level B harassment would still be covered
under the General Authorization (GA) for scientific research, which
provides a simplified process for authorizing research involving Level
B harassment. This requires submission of ``Letters of Intent'' (LOIs)
to notify NOAA Fisheries of intended activities. NOAA Fisheries reviews
the LOIs within 30 days and issues ``Letters of Confirmation.'' This
process has worked well to date. Additionally, this process helps NOAA
Fisheries track the types of research being conducted on marine mammals
and the potential cumulative impacts they may have.
The GA does not apply to research activities involving Level A
harassment or endangered or threatened species listed under the ESA. It
also does not apply when harassment is incidental (not directed). As
with current MMPA language, scientists who want to conduct Level A
harassment activities, or work with ESA-listed marine mammals, need to
apply for a scientific research permit. More scientific research is
likely to fall under Level B harassment, and be subject to the
streamlined procedures of the General Authorization, under the
administration's proposed definition since the proposed Level A
definition would focus on those activities that injure or have the
``significant'' potential to injure a marine mammal in the wild.
Question 5: How will the agency implement this language?
Answer: NOAA Fisheries intends to implement the new language in
several ways. First, the agency will likely conduct a rulemaking to
clarify the definition of harassment, and specifically, the intent
behind this new language. Second, the agency will continue its long-
term outreach efforts to educate the public and commercial operators
about safe and responsible marine mammal viewing practices by
continuing to produce outreach materials (e.g., brochures, posters,
signs, public service announcements, etc.), holding community
workshops, and continuing its partnership with the Watchable Wildlife
program. Third, the agency intends to develop regulations in follow-up
to the Advance Notice of Proposed Rulemaking published in January 2002
(67 FR 4379) that would further clarify specific activities that can
cause harassment of marine mammals. Fourth, NOAA Fisheries Office of
Protected Resources will continue to work with the NOAA Office of
General Counsel and the NOAA Fisheries Office for Law Enforcement to
develop strategies for addressing violations.
With regard to the scientific research community, the General
Authorization for Scientific Research has been in place since 1994 and
NOAA Fisheries has already developed a streamlined and expedited
program to issue ``Letters of Confirmation'' for bona fide scientific
research projects within 30 days of receipt of a ``Letter of Intent''
submitted by a qualified researcher. This authorization process has
been successful and would not change.
Question 6: Could you explain the intent of the changes proposed to
the MMPA definition of harassment in section 3, paragraph (iii)--``any
act that is directed toward a specific individual''?
Answer: As discussed in our response to Question 3, clause (iii) of
the proposed harassment definition will help NOAA Fisheries and/or
USFWS to enforce the taking prohibition of the Act against those that
directly harass marine mammals. It will make it more explicit that
activities directed at marine mammals in the wild may constitute
harassment because they are associated with negative long-term
cumulative effects on the animals. This language is intended to clarify
that activities such as closely approaching, swimming with, touching,
or feeding marine mammals in the wild that are likely to disrupt the
behavior of the animals are considered harassment. Thus, the second
tier of the Level B harassment definition would help NOAA Fisheries
and/or USFWS better regulate and enforce actions that may not lead to
abandonment or significant alteration of the marine mammal's behavioral
patterns at the time, but that are likely to cause disruption of such
behaviors that are associated with cumulative, long-term harm to marine
mammals (e.g., reduced fecundity, low calf weaning rate, increased
energy expenditure).
Question 7: Could the goal of paragraph iii be accomplished under
the language of paragraphs (i) and/or (ii)?
Answer: No. Paragraphs (i) (Level A harassment) and (ii) (Level B
harassment) can apply to both direct and indirect harassment. However,
paragraph (iii) is intended to address problems that the agencies have
encountered in applying the Level B harassment definition to actions
directed toward marine mammals, while paragraph (ii) is intended to
address problems that the agencies have encountered in applying the
Level B harassment definition to actions that cause incidental
harassment. The language in paragraph (iii) recognizes that activities
directed at marine mammals are more likely to disturb the animals;
therefore, there is a different threshold for these directed
activities. It also recognizes that those who engage in activities
directed at marine mammals that are likely to disturb them should be
treated differently from those who affect marine mammals incidentally.
The new language would help NOAA Fisheries and USFWS better regulate,
and where appropriate prosecute, activities specifically directed
toward marine mammals which, if unchecked, can have negative long-term
effects on marine mammals.
Question 8: Is there a reason why paragraph (iii) does not contain
the ``significance'' threshold of paragraphs (i) and (ii)?
Answer: The main intent behind this language is to make it easier
to regulate, and where appropriate prosecute, unlawful activities aimed
at marine mammals in the wild. This part of the Administration's
proposed definition does not contain a ``significance'' threshold
because activities directed at marine mammals in the wild by members of
the general public that disturb the animals should not be allowed and
because these activities often are more likely to cause adverse effects
that may not be immediately recognized through significant changes in
behavior.
Question 9: Will the removal of ``specified geographic region''
change how the agency determines if an activity has a ``negligible
impact'' on marine mammal species?
Answer: While most activities take place within a relatively small
area, some activities might apply for authorizations in the future,
such as commercial or military transoceanic shipping or air transport,
that would travel across more than a single biogeographic region. For
example, a noisy, large container ship traveling the Great Circle Route
from Los Angeles to Tokyo would transit 4-5 of the biogeographic
regions, established under the LFA sonar rule, during that transit.
Sections 101(a)(5)(A) and 101(a)(5)(D) of the MMPA contain the
requirement that the activity take place within a ``specified
geographic region.'' Negligible impact determinations are made under
both sections on a species or stock basis and, for section
101(a)(5)(A), the determination must be made that the ``total of such
taking'' by the activity will be negligible. If the negligible impact
determination is based on a marine mammal species or stock basis, it
does not matter if the activity is confined within a single specified
geographic region, over several regions, or ocean-basin wide. Based on
our current knowledge of marine mammals, it is difficult to draw
specific geographic regions such that they encompass the entire suite
of marine mammal stocks that might be affected by wide-ranging
activities. Therefore, there would not be any modification in how NOAA
Fisheries makes the necessary determinations, including negligible
impact, under the small take program if the phrase ``within a specified
geographic region'' is modified or removed.
Question 10: Could you explain how you envision take authorizations
being implemented if the language within a ``specified geographic
region'' is deleted from 101(a)(5) of the MMPA?
Answer: There would not be a significant change. The current
regulations implementing the incidental take program under Section
101(a)(5)(A) instituted a process that requires those whose activities
may result in a taking of one or more marine mammals to obtain a Letter
of Authorization (LOA) under regulations implemented to govern that
specific activity. The activity regulations do not authorize the
taking; the LOA authorizes the taking. Because NOAA Fisheries must
determine that the total taking by the activity is having a negligible
impact on affected marine mammals stocks, the determinations necessary
to support LOAs would not change and would continue to cover the area
in which marine mammal stocks are affected.
Question 11: If an incidental take authorization for an activity is
done on a worldwide basis, how would variations in the types and
numbers of species and the types of potential harassment among
different regions of the world be dealt with in one take authorization?
For example, if there is only a few numbers of species under
consideration in New England, but huge numbers of the same species in
California, how would that be reflected in the mitigation measures for
a single take authorization? Will NOAA have the resources to review the
scientific literature, research and data on a global basis? Will this
slow down the take authorization process?
Answer: NOAA Fisheries does not intend to issue blanket world-wide
authorizations since all applicants will need to notify NOAA Fisheries
of the location of their operations. If such locations are classified
for military or commercial (e.g., oil and gas deposit locations)
reasons, NOAA Fisheries has staff who are authorized to view that
material and make the necessary determinations.
Regarding mitigation measures, NOAA Fisheries is required to
ensure, through regulations, that the authorized taking is at the
lowest level practicable. In making its determinations that the taking
will have no more than a negligible impact on affected stocks and will
not have an unmitigable adverse impact on subsistence uses, NOAA
Fisheries considers all mitigation measures that can be practically
implemented during rulemaking. If the mitigation measures are
universal, they will be contained in the regulations and apply to all
LOAs issued under that set of regulations. If the mitigation measures
would vary by location, either because the affected stocks (especially
in regard to endangered marine mammals) and impacts on them vary,
because the characteristics of the action areas vary, or because an
area needs additional protection during certain seasons, the
regulations may contain a general framework for mitigation that allows
for more tailored mitigation measures at the LOA level. In either case,
NOAA Fisheries would not issue blanket world-wide authorizations, only
regulations under section 101(a)(5)(A) that would form the framework
for authorizations under LOAs.
In implementing the incidental take program, the applicant must
provide to NOAA Fisheries and the U.S. Fish and Wildlife Service the
best available information that the applicant's activity will have no
more than a negligible impact on affected marine mammal species and
stocks. That information is then reviewed by NOAA scientists to
determine whether it supports the preliminary finding of negligible
impact. NOAA's marine mammal scientists are among the most qualified to
determine the accuracy of this information. If the information is
insufficient to support even a preliminary finding, the applicant may
be required to conduct scientific research on the impact. This is what
the U.S. Navy was required to do before NOAA Fisheries would accept an
incidental take application for SURTASS LFA sonar. However, when
issuing incidental take authorizations for waters distant from the
United States, delays may result because the marine mammal information
on status and trends may not be available. Therefore, potential
applicants should begin discussions with NOAA Fisheries early in the
planning process for the activity to ensure that the necessary
information is identified and can be obtained.
Question 12: Will incidental take authorizations be effective on a
worldwide basis given the language in section 102(1) of the MMPA that
it is illegal to take a marine mammal on the high seas?
Answer: Incidental take authorizations may be issued for activities
of United States citizens on the high seas based on the language of
MMPA sections 102(a)(1) and 101(a)(5). However, NOAA Fisheries does not
intend to issue blanket world-wide authorizations, because all
applicants will need to notify NOAA Fisheries of the location of their
operations in order for NOAA Fisheries to carry out its
responsibilities (see response to previous questions) and because the
required determinations must be made on a stock-by-stock basis.
Question 13: Although it is not addressed by this bill, as you may
be aware, the National Oceanic and Atmospheric Administration is
considering expanding the Channel Islands National Marine Sanctuary to
now include waters that are part of the Point Mugu Naval Air Station's
sea test range. Do you believe that allowing marine sanctuaries to
expand into waters used for military readiness activities is
counterproductive to Point Mugu's mission and to our nation's military
preparedness? If so, why? If not, why not?
Answer: National Marine Sanctuaries and Department of Defense (DOD)
have coexisted since 1980, when the Channel Islands National Marine
Sanctuary (CINMS) was designated in an area that significantly overlaps
the Point Mugu Naval Air Station's Sea Test Range. Since that time,
CINMS has never obstructed or intruded upon military activities within
the Sea Test Range.
CINMS maintains a good working relationship with the Navy and Air
Force and both have representatives on the Sanctuary Advisory Council,
which advises NOAA on management of the Sanctuary.
Every relevant National Marine Sanctuary, including CINMS, provides
an exemption for DOD activities. This exemption grandfathers in
existing (as of the date of sanctuary designation) DOD activities and
allows for the exemption of new DOD activities after consultation with
NOAA. To date, such consultations have usually resulted in the
requested exemption being granted to DOD. NOAA has not denied any
request to extend exemptions to new activities. In the only case that
we are aware of, it was not necessary to grant an exemption because
after consultations, DOD agreed to other alternatives which met their
needs.
NOAA is deferring selection of a preferred boundary alternative for
the CINMS until additional biogeographic assessments are completed and
a supplemental environmental impact statement is prepared sometime next
year.
NOAA, having a positive working relationship with the DOD
(including the Point Mugu Naval Air Station) to date, intends to
continue these efforts if there is any future decision to expand CINMS
boundaries farther into waters used for military readiness activities.
NOAA believes that using existing DOD exemption mechanisms and
fostering this working relationship will prevent any concerns or
actions that might be counterproductive to the Point Magu's mission or
to our Nation's military preparedness.
Question 14: Would giving the Department of Defense the authority,
in certain circumstances, to keep off-limits active military waters
from future marine sanctuary boundary expansions or new sanctuary
designations alleviate hindrances to military readiness activities?
Answer: In passing the National Marine Sanctuaries Act (NMSA),
Congress recognized the importance of special places in the marine
environment that are of significance to the Nation. This protection can
be achieved without compromising our Nation's military readiness.
The NMSA requires that, as part of every sanctuary designation (and
potential boundary expansion, which would trigger the same process),
the Secretary of Commerce consult with the Secretary of Defense on the
sanctuary proposal. Historically, this has been the time that the
details of how a sanctuary will interact with any military activities
in the area has been determined, including specifics of regulations and
boundary. To date, this has resulted in the inclusion of military
operating areas in several sites (Channel Islands, Olympic Coast,
Florida Keys, and Hawaiian Islands Humpback Whale National Marine
Sanctuaries). It is clear from these examples that sanctuaries and
military activities can co-exist without any hindrance to military
readiness.
NOAA believes that this case-by-case consultation is the most
effective way to determine how sanctuary and military activities can
coexist, as sanctuary resources vary from site to site and military
operating areas vary in their use.
Questions Submitted by Congressman Nick Rahall
Permit Process
Question 1: There are complaints that the permit process can be
expensive and slow, and is not always applied equally to academic
research, industry and the military. At last year's House Armed
Services Committee hearing on environmental issues, you testified that
``to the extent the Navy and other action agencies can plan
sufficiently far in advance of activities and provide us with adequate
time to work them at the earliest possible stages, the implications of
the permit process should be minor.''
How many dedicated full time employees are on staff to
review Navy permitting requests under the Marine Mammal Protection Act?
Would increased staffing help expedite this process thus
addressing some of the Navy's concerns?
What steps have been taken in the past twelve months to
increase your resources and initiate more advanced planning to foster a
more efficient permit application and review process?
Answer: NOAA Fisheries has two positions and one contract person to
review and process all small take applications from all applicants
including the Navy, Air Force, Interior, FAA, the oil industry, and
others.
Based on current and projected requests from the Navy, NOAA
Fisheries anticipates that one position would be necessary to process
all Navy small take applications within the time period required by the
MMPA. However, there are significantly more Navy requests for
consultation on the full range of Navy actions under section 7 of the
ESA than there are small take applications. Therefore, to avoid delays
in completing Navy MMPA small take authorizations, one additional
position would also be needed to address Navy ESA consultation
activities.
We have reached our authorized staffing levels with the recent
hiring of a new employee to work on MMPA ``small take'' authorizations.
In addition, we have reprogrammed funding to contract for a person to
prioritize work on DOD small take applications. We are also
reprogramming funds to bring on additional marine acoustic scientific
expertise. Finally, we are discussing with the Navy options for
acquiring additional resources.
The Navy and NOAA Fisheries have established several means to work
on Navy projects months or years prior to their initiation so that MMPA
and ESA authorizations are completed as soon as possible upon
completion of other necessary environmental documents. These
discussions often are initiated at our regional offices. For example,
we will begin meetings in July 2003 for a Navy activity scheduled for
2006 that will need a small take authorization. On this and other Navy
activities, NOAA Fisheries expects to be a cooperating agency in
preparation of NEPA documents.
The FY 2003 President's request included $1.5 million to provide
for thorough, complete, and timely environmental and economic analyses
for NOAA's recovery programs. These funds would also support
assessments of environmental and socioeconomic impacts of implementing
protected species conservation programs. This request was not funded in
the FY 2003 appropriation; however, it is also included in the FY 2004
request.
Existing Exemption
Question 2: In 1998, Congress amended the U.S. Armed Forces Code to
give the military an opportunity to raise readiness issues to the
political level of the Executive Branch and suspend administrative
actions pending consultation between the Secretary of Defense and the
head of the action agency involved.
How many times has the Secretary of Defense used this provision for
activities that fall under the scope of your agency?
Answer: It is our understanding that the DOD has not used this
provision to address activities that have fallen under the scope of
NOAA programs.
Definition of Terms
Question 3: Section 3 of H.R. 1835 proposes changing the definition
of harassment to purportedly clarify it. Can you please elaborate on
how NOAA would interpret, define, and enforce the terms ``significant
potential to injure'' and ``significantly altered?''
Answer: Amendments to the harassment definition changed in H.R.
1835 from the hearing on May 6, 2003, to when the bill was reported out
of the House Resources Committee. The below response notes which
version of the amendments we refer to.
NOAA Fisheries worked closely with the Department of the Interior,
Department of Defense, and Marine Mammal Commission to develop a
package of amendments to improve implementation and enforcement of the
MMPA. Clarifying the definition of harassment was part of these efforts
in order to better regulate, and where appropriate prosecute,
activities that unlawfully harass marine mammals. Our intention was to
clarify statutory language while maintaining flexibility in case new
scientific information were to become available that would shed light
on the most important negative impacts of harassment on marine mammals.
Further refinement of terms such as ``significant potential to injure''
and ``significantly altered,'' contained in both the version of H.R.
1835 that was reported out of the House Resources Committee as well as
the administration's MMPA reauthorization bill, would occur through
rulemaking, which would provide for public input.
The proposed harassment language in the version of H.R. 1835 that
was considered by the House Resources Committee at the hearing on May
6, 2003, and contained in the Administration's MMPA reauthorization
bill would improve the Act by a) removing confusion and enforcement
difficulties associated with the phrase ``pursuit, torment, and
annoyance,'' which provides terms that are not defined in the MMPA and
create a second element that the agencies must prove in cases alleging
harassment; b) providing greater notice and predictability to the
regulated community; c) sparing the public the regulatory burdens
associated with obtaining authorizations for relatively benign
activities; d) clarifying that acts directed at marine mammals such as
chasing, closely approaching, or feeding wild marine mammals that
disturb or are likely to disturb the animals would constitute
harassment; and e) providing marine mammals with protection from
activities that are likely to be harmful and from the cumulative
effects of activities that take marine mammals both directly and
incidentally.
With regard to the term ``significant potential to injure'' in the
proposed Level A definition in both versions of H.R. 1835 and the
Administration's bill, the existing phrase ``potential to injure''
could be interpreted to mean that any activity, no matter how remote
the possibility, is subject to the Level A standard because one could
interpret that almost every activity, no matter how benign or seemingly
inconsequential, has the potential to fall within the Level A standard.
This does not make sense. The agencies therefore tried to find terms
that would focus attention on those activities that exceed a
theoretical possibility of injury, without moving the standard so far
toward actual injury that the language would be meaningless. The
agencies felt that ``significant potential'' was a more appropriate
threshold that would enable staff to focus on those activities that
pose important biological and ecological impacts to marine mammals. Any
greater specificity in the statutory language is not necessary and
would limit agency discretion and flexibility. As stated above, NOAA
intends to further define these terms through regulations.
The term ``significantly altered,'' contained in both H.R. 1835's
and the Administration bill's amendments to Level B harassment, was
developed by the agencies in an attempt to focus on those activities
which are likely to cause biologically significant disruptions in
behavior important to survival and reproduction. In our deliberations
the agencies interpreted ``abandoned'' and ``significant alteration''
of behavioral patterns to mean a temporary or permanent departure from
a natural behavior pattern when such departure is biologically or
ecologically significant.
Litigation
Question 4: In your responses to questions at the hearing, you
stated that enforcement cases brought by NOAA for harassment under the
MMPA have been ``thrown out of court'' based on the definition of that
term added to the Act in 1994. Can you please elaborate by providing
the names of those cases and briefly summarizing the facts and the
rulings?
Answer: NOAA Fisheries would like to clarify any testimony provided
at the hearing that expressed or implied that certain cases were
``thrown out of court'' based upon the definition of harassment added
in 1994. NOAA Fisheries is unaware of any instance in which a court has
dismissed an enforcement action because the existing definition of
``harassment'' is overly vague. However, NOAA has declined to prosecute
several cases because it determined that it would be unable to prove
that the activity in question constituted an act of ``pursuit, torment,
or annoyance.''
Question 5: What is NOAA's position on H.R. 1835?
Answer: These comments refer to the version of H.R. 1835 that was
reported out of the House Resources Committee on May 7, 2003, and not
the version that the Resources Committee considered during their
hearing on May 6, 2003.
MMPA Concerns
With regard to the MMPA, NOAA Fisheries supports some of the key
amendments in H.R. 1835 including those pertaining to the incidental
take permit program. With regard to the harassment definition, however,
NOAA Fisheries believes that the harassment definition contained in the
administration's MMPA reauthorization bill would enable the agency to
better uphold its responsibilities under the MMPA. Specifically, the
Administration believed it was necessary to make more explicit in the
definition of harassment that activities directed at marine mammals in
the wild may constitute harassment because they are potentially
injurious to the animals. This language, contained in the proposed
amendment to section 3(18)(B)(ii) that would be made under Sec. 515 of
the administration's MMPA reauthorization proposal is intended to
clarify that activities such as closely approaching, swimming with,
touching, or feeding marine mammals may result in harassment. This
second tier of the Level B harassment definition would help NOAA
Fisheries and/or the USFWS better regulate, and where appropriate
enforce, actions that may not lead to abandonment or significant
alteration of the marine mammal's natural behavioral pattern at the
time, but that are likely to disrupt natural behaviors where such
disruptions are associated with cumulative, long-term harm to marine
mammals.
ESA Concerns
NOAA Fisheries has concerns about qualifying language and potential
redundancies proposed by the ESA amendments in H.R. 1835.
With regard to critical habitat, section 2(a) of the bill leaves
questions as to how to interpret the language in practical application.
This section proposes to change the requirement to promulgate critical
habitat to the maximum extent prudent and determinable by striking the
words ``prudent and determinable'' and inserting the word
``necessary.'' We are unclear as to how we would be expected to
determine when critical habitat is necessary. The terms ``prudent and
determinable'' are both clearly defined in regulation. Further, the
courts have made clear that critical habitat has benefit to species and
thus would be necessary in many, if not most, circumstances.
Question 6: What effect would Section 2(a) of H.R. 1835 have on the
Endangered Species Act?
Answer: It is our understanding that the portion of the bill to
which this question refers is no longer contained in the bill.
Nonetheless, the policy statement contained in section 2(c)(1) of
the ESA that ``all Federal departments and agencies shall seek to
conserve endangered species and threatened species and shall utilize
their authorities in furtherance of the purposes of this Act'' is a
cornerstone of the ESA. Given the often dire condition of endangered
and threatened species, NOAA Fisheries and USFWS rely on the
cooperation of all federal entities in furthering this policy of the
Act to ensure that these species are being considered in all major
management actions. Section 2(a) of the version of H.R. 1835 that the
Resources Committee considered at the hearing on May 6, 2003 would have
inserted the phrase ``in so far as practicable and consistent with
their primary purposes'' after the words ``threatened species,'' in the
current policy statement quoted above. Few federal agencies have as
their primary purpose the conservation of listed species. Thus, this
could be interpreted as giving nearly all Federal agencies the
opportunity to limit their commitment to the conservation of endangered
or threatened species. Further, this amendment could apply to all
sections of the ESA, including those governing section 7 consultations
and recovery actions. This could have potentially serious repercussions
on species already at risk of extinction by limiting agencies'
commitment to minimizing impacts of federal actions and the recovery of
species on federal lands. We must have the commitment of other agencies
to realize our goal of conserving these species.
______
[Responses to questions submitted for the record by Judge
Manson follow:]
Response to questions submitted for the record by The Honorable Craig
Manson, Assistant Secretary for Fish and Wildlife and Parks, U.S.
Department of the Interior
Question 1: What is the length of time for the military to receive
a decision on applications seeking to use critical habitat for military
exercises?
Response: When the effects to critical habitat are insignificant,
we are often able to respond within 30 days. However, response times
for consultations on military actions that affect designated critical
habitat vary depending on the complexity of the action and its effects
on the critical habitat. The U.S. Fish and Wildlife Service (Service)
makes every effort to complete these consultations within the 135 days
provided by the Interagency Cooperation regulations established at 50
CFR Part 402.
Question 2: It has been stated that the proposed changes to the
definition of ``harassment'' will help the agencies better enforce the
MMPA? Can you give us some examples?
Response: We support the Administration's proposed revision to the
definition of harassment. The Service jointly administers the Marine
Mammal Protection Act (MMPA) with the National Marine Fisheries
Service. The MMPA gives each agency jurisdiction over different species
that pose different management and enforcement issues. Under the
proposed revised definition contained in the Administration's
legislative proposal to reauthorize the MMPA, the Service does not
anticipate changes in the way we currently enforce the MMPA, or in the
types of harassment cases we would pursue. However, we believe that the
proposed revised definition provides greater certainty to the regulated
public regarding what actions constitute harassment.
Question 3: Has the Secretary of the Interior issued any incidental
take authorizations? If so, for what activities and for what species of
marine mammals? What type of mitigation measures does the Secretary
require when issuing these authorizations?
Response: Yes, the Secretary of the Interior has issued incidental
take authorization under Section 101(a)(5)(A) of the MMPA. To date, all
such authorizations have been for oil and gas industry activities in
Alaska, and involve polar bear and Pacific walrus. In November 2002,
the Service proposed regulations to authorize incidental take of
manatees during the course of government activities related to
watercraft and watercraft access facilities in Florida. However, in May
2003, the Service published a notice in the Federal Register that
effectively withdrew that proposed rule due to substantive comments and
concerns raised during the rulemaking process regarding the information
and analysis used to develop the proposed rule. The Service may propose
such regulations again for manatees in the future.
The Service finalized incidental take regulations for industry
activities on the following dates:
June 14, 1991 for a period of 5 years in the Chukchi Sea;
November 16, 1993 for a period of 18 months;
August 17, 1995 for the period through December 15, 1998;
January 28, 1999 for a period of 12 months; and
March 30, 2000 for a period of 3 years.
These regulations authorized the incidental, unintentional take of
small numbers of polar bears and Pacific walrus during oil and gas
exploration, development, and production activities in the Beaufort Sea
and the adjacent northern coast of Alaska (with the exception of the
1991 polar bear/walrus regulations, which, as noted above, were for
industry activities in the Chukchi Sea). These rulemakings addressed
primarily passive forms of take resulting from unanticipated
interactions with polar bears, not lethal takes.
The regulations required mitigating measures that include:
Approved plans for monitoring and reporting the effect of
authorized industry activities on polar bear and walrus;
A ``Plan of Cooperation'' that provides procedures on how
industry will work with affected Alaska native communities to avoid
interference with subsistence hunting of polar bears and Pacific walrus
and to ensure the availability of the species for subsistence use;
Site specific strategies to avoid conducting activities
in areas that may contain denning bears, such as seasonal or location
limitations on activities in important denning habitat, or avoidance of
known polar bear den sites by one mile; and
Timing restrictions to minimize activities during peak
den emergence.
In addition, on July 25, 2003, the Service issued a proposed rule
to authorize taking of polar bear and Pacific walrus in Alaska
incidental to oil and gas industry activities for a period of 16
months. This proposed rule contains the regulatory scheme described
above.
Question 4: Although it is not addressed by this bill, as you may
be aware, a study is underway to study the suitability and feasibility
of designating a majority of Vandenberg Air Force Base lands as a unit
of the National Park System. Do you believe including lands on an
active military installation for possible inclusion with a National
Park is counter productive to the mission of Vandenburg Air Force Base
and our national preparedness? If so, why; If not, why not?
Response: Vandenburg Air Force Base lies within an area of the
Gaviota Coast of California that Congress directed the National Park
Service to study as a potential addition to the National Park System.
Although the study has not been finalized, the draft report finds that
the study area, including Vandenburg Air Force Base, is not feasible
for addition to the National Park System.
We do not believe that such a study by the National Park Service,
which is mandated by Congress, has any adverse impact on the military
mission of Vandenburg or any other military installation. Studies by
the National Park Service inform Congress whether certain lands might
be eligible for addition to the National Park System and assess
alternatives for their protection. In the case of active military
bases, a study by the National Park Service normally discusses what
alternatives might be considered by Congress if the land is no longer
needed for military use. Any decision to follow up on such a study
rests with Congress and not the National Park Service.
Question 5: Would giving the Department of Defense the authority,
in certain circumstances, to remove certain active military lands from
future park studies alleviate hindrances to military readiness
activities?
Response: In addition to the information provided in the preceding
answer, these park studies occur only as and when directed by Congress
through the enactment of authorizing legislation. This Congressional
direction includes the area to be studied. Therefore, Congress can now
ensure that future park study legislation will not include military
lands.
Question 6: I understand that a landowner who has received ESA
section 10 permit coverage for certain activities through a habitat
conservation plan (or ``HCP'') approved by the Fish and Wildlife
Service may later have those activities reviewed under another
regulatory process pursuant to section 7 of the ESA. The section 7
consultation process is triggered if the landowner requires permits or
some other involvement of another federal agency. I also understood
that this additional regulatory review often has the effect of delaying
the implementation of activities already in compliance with the ESA and
adding to their cost.
Secretary Manson, could you explain to me why a landowner holding a
valid section 10 permit would be subjected to this additional
regulatory scrutiny and if the Administration has considered approaches
to eliminating this extra step under section 7?
Response: Because this is a statutory requirement, the
Administration does not have the authority to eliminate this
requirement. The Service is developing additional guidance that will
expedite the section 7 review process for situations like the one you
describe. We anticipate that the guidance will point to the biological
opinion issued by the Service for the section 10 permit and Habitat
Conservation Plan as also fulfilling the consultation responsibilities
of any federal agencies that must subsequently approve activities that
are covered by the Habitat Conservation Plan. As a result, there should
be no additional regulatory delays associated with ESA compliance for
activities that were covered in the HCP and the associated internal
section 7 consultation the Service conducts when we issue the permit.
Question 7: I am aware that the Fish and Wildlife Service has, on
occasion, agreed to exclude areas covered by existing HCPs from
critical habitat designations. However, I am also aware that the
Service has been unwilling to apply this approach to HCPs that are
approved after the initial designation of critical habitat. It seems to
me that the Service should be equally willing to exclude an area from
critical habitat regardless of whether the HCP was approved before or
after the initial designation.
Secretary Manson, could you explain why the Service would treat
these two scenarios differently, and if the Administration had
considered adopting a policy that clearly stated that areas covered by
HCPs would not be subject to critical habitat designation, irrespective
of when the HCP was approved, and that also directed the Service to use
the public review process for the critical habitat designation as the
basis for exempting existing and future HCPs?
Response: The Service normally would exclude from critical habitat
designation for a particular species those areas included in approved
HCPs that provide coverage for the species. We have made a commitment
to go back and revise critical habitat for future HCPs when they are
completed, if resources allow. As you know, litigation over critical
habitat has limited the resources available for this purpose. The Fish
and Wildlife Service's listing program's limited resources and staff
time are being spent responding to an avalanche of lawsuits, and court
orders focused on critical habitat designations. We believe that our
staff time could be better utilized focusing on those actions that
benefit species through improving the consultation process, the
development and implementation of recovery plans, and working to
develop voluntary partnerships with States and other landowners.
Revisions to critical habitat made in the year or so following a
designation, while existing biological and economic information is
still current, may be relatively short and inexpensive. Revisions that
are made at times more distant from the original designation do,
however, become more costly. As a result, revisions of critical habitat
to exclude later HCPs may have to be postponed.
Questions Submitted by the Minority
Question 1: What is the Administration's position on H.R. 1835?
Response: While the Administration has not developed an official
position on H.R. 1835, we do note that a number of the provisions
contained in this legislation are similar to provisions in the
Administration's Readiness and Range Preservation Initiative, which the
Department supports.
Question 2: Is it the position of the Administration that Congress
should eliminate the ESA's critical habitat protection? If Congress
were to take this step, what mechanisms would remain in place to ensure
that habitats needed for species recovery are protected?
Response: It is not the position of the Administration that
Congress should eliminate the ESA's critical habitat protection. The
Administration looks forward to working with Congress to develop a
workable solution to the current breakdown. For example, one option
that has been proposed would move the requirement to designate critical
habitat from the time of listing to the time of recovery planning and
make it non-regulatory, as in the Chafee-Kempthorne bill, S. 1100,
which was introduced in the 105th Congress. With that change, the
determination of which areas are important for a species' recovery
would become a part of the recovery planning process, enabling the
Service to determine a species' habitat needs at a time when there is a
greater knowledge base about the species than at the time of listing.
However, there are undoubtedly other alternatives which would also
productively address this situation, and we welcome a chance to work
with you to explore these.
We acknowledge that protecting habitat is essential to achieving
recovery for many listed species. But both this Administration and the
previous Administration have found that critical habitat designations
add little, if any, benefits to the species. For example, the ESA
requires consultation for activities that may affect listed species,
including habitat alterations, regardless of whether critical habitat
has been designated. We have also learned over time that, in almost all
cases, active management of the habitat is far better than the ``do no
harm'' requirement accompanying a critical habitat designation.
However, because many landowners and land managing agencies strongly
oppose critical habitat designations, the current critical habitat
process has proven counterproductive to meeting the real needs of the
species in many instances.
A significant problem is that the original ESA mechanism designed
to address this, critical habitat designation, cannot produce the
management needed. Active cooperation cannot be compelled by this
regulatory scheme. Instead, we believe far better results can be
achieved by developing and promoting cooperative conservation efforts
between landowners and land managers.
Question 3: Does the Administration intend to issue a new
regulation defining adverse modification of critical habitat as called
for by the Fifth Circuit decision in Sierra Club v. U.S. Fish and
Wildlife Service? If so, when will this regulation be proposed and
finalized? In the meantime, what standard of protection of critical
habitat is being used by the Administration in the Fifth Circuit?
Response: The Administration is developing a proposed rule that
would address the Fifth Circuit's decision. Presently in the Fifth
Circuit, in evaluating whether the effects of a proposed action
constitute destruction or adverse modification of critical habitat, we
analyze whether the effects of the proposed action appreciably diminish
the value of the critical habitat for the recovery of the species.
Question 4: Does ESA Sec. 4(b)(2) give the U.S. Fish and Wildlife
Service (FWS) the flexibility to exclude Defense Department lands from
a critical habitat designation based on the existence of an adequate
Integrated Natural Resource Management Plan (INRMP)? If so, what
factors does FWS consider in determining whether an INRMP conserves
listed species adequately enough to justify a ESA Sec. 4(b)(2)
exclusion?
Response: Section 4(b)(2) allows the Service to exclude DoD lands
based on the existence of an adequate INRMP, or their importance to
national security, or other relevant reasons under which the benefit of
excluding the lands from critical habitat might exceed the benefit of
including them. However, this is an action which is discretionary. The
Department of Defense is seeking certainty, and we agree that this is
warranted.
Question 5: Have the courts interpreting ESA Sec. 4(b)(2) placed
any limits on the U.S. Fish and Wildlife Service's ability to exclude
habitats from critical habitat designations pursuant to this provision
of the ESA? If so, please describe those limits. If not, please explain
why ESA Sec. 4(b)(2) is an inadequate tool for substituting an INRMP
for a critical habitat designation when FWS deems it appropriate.
Response: The courts have ruled that the Secretary's ability to
exclude areas under section 4(b)(2) is discretionary. Under the
applicable standards, as long as proper procedures are followed and
there is a rational basis on the record for the decision, we would not
expect a court to overturn a 4(b)(2) exclusion, whether related to
INRMPs or other factors. However, as noted above, this is an action
which is discretionary, while the Department of Defense is seeking
certainty.
Question 6: Please estimate the cost of cleaning up the backlog of
critical habitat designations and provide a timeline and a detailed
breakdown of how this estimate was derived. If Congress were willing to
fund the cleanup of this backlog, would there be any remaining
obstacle?
Response: For the reasons described in this answer, we do not have
adequate information for providing an accurate response to this
question. We do know, however, that Section 4 of the ESA requires
critical habitat be designated for every species listed as threatened
or endangered. Currently only 306 species or 25% of the 1,211 listed in
the United States under the jurisdiction of the Service have designated
critical habitat. Additionally, there are currently 257 candidate
species for which listing proposals are believed to be warranted but
which are precluded by higher priority actions. If these species are
ultimately listed, critical habitat would need to be designated for
most of them as well. Based on actual costs to complete recent critical
habitat designations (between $200,000 - $600,000 per designation
including economic analysis, NEPA compliance, and drafting and
publication costs), it would cost hundreds of millions of dollars to
designate critical habitat for all of these species as the Act
requires. It would also take many years and substantial resources to
completely address the backlog of critical habitat designations. Even
if the resource issues related to the critical habitat backlog are
addressed, the real issue is whether or not statutory critical habitats
are effective in helping to conserve listed species. In 30 years of
implementing the ESA, the Service has found that the designation of
statutory critical habitat provides little additional protection to
most listed species, while consuming significant amounts of
conservation resources. As Judge Manson testified, we believe that the
service's resources and time could be better spent focusing on those
actions that benefit species through improving the consultation
process, the development and implementation of recovery plans, and
voluntary partnerships with States and other landowners. The present
system for designating critical habitat is broken and, as Judge Manson
testified, we are prepared to work with Congress to identify ways of
providing necessary legislative relief.
Question 7: Please provide a list of any contractors that have been
retained by the Administration to perform economic impact analyses
under ESA Sec. 4(b)(2), the terms of those contractual arrangements,
and copies of any instructions that have been provided to these
contractors regarding how economic impact analyses should be performed.
Response: The Service contracts with Industrial Economics (IEC) in
Cambridge, Massachusetts, for completion of its economic analyses. In
turn, IEC subcontracts out some of the analyses to other firms. Copies
of the contracts and instructions are attached.
Question 8: How much money would the Administration save if it were
not to follow the Tenth Circuit's New Mexico Cattle Growers ruling and
to instead estimate only the impacts of critical habitat designation
that are not redundant with the impacts of other ESA provisions? Please
provide a timeline and a detailed breakdown of how this estimate was
derived.
Response: We made a policy decision to apply the 10th Circuit
ruling nationwide because we believe it to be an accurate statement of
the law. It has since been endorsed by courts in other circuits,
including the 9th Circuit and here in the District of Columbia, and has
not been rejected in any other circuit. Accordingly, it is not at all
clear that we could legally pursue the course of action raised in this
question.
In addition, it is difficult to estimate precisely how much the
Service might save by this approach. Much of the Service's increased
economic analysis costs result from doing a more robust analysis of the
actual costs of critical habitat designations. Because we would still
take the time to do these more robust analyses, we would likely still
incur those associated costs.
Question 9: When the Administration characterizes the critical
habitat protection as essentially valueless, does it take into account
the value that critical habitat designation plays in protecting
habitats not occupied by the listed species? If so, what other ESA
provision protects unoccupied habitats? What impact on listed species
would result from removing critical habitat protections for unoccupied
habitats? Approximately how many listed species will need to be
restored to unoccupied habitat in order to recover?
Response: The last element of the question highlights what we
believe to be the most important aspect of the unoccupied habitat
issue--that its value under the ESA is for reintroduction of the
species in order to assist in recovery. However, a critical habitat
designation cannot compel a private landowner, or a state or federal
agency, to allow reintroduction on their land, or to manage their land
to benefit the species. This can only result from the voluntary
cooperation of the landowner or land manager.
As noted in my answer to Question 2 above, it is our experience
that many landowners--public and private--oppose critical habitat
designations. Inasmuch as most listed species are found, in whole or
part, on state and private lands, critical habitat designations have
become significant obstacles to obtaining landowner cooperation in
species conservation, and a critical habitat designation for unoccupied
habitat thus often harms rather than assists recovery for the species
for which it is designated.
On the question in general, we do not track the overall amount of
occupied and unoccupied designated critical habitat. However, because
the ESA sets a higher standard for designation of unoccupied habitat
than for occupied, and the legislative history instructs us to be
``highly circumspect'' in designating unoccupied habitat, it is
reasonable to presume that most currently designated critical habitat
is occupied habitat.
For these reasons, we do not believe that a lack of regulatory
coverage under the ESA of unoccupied habitat is a significant aspect of
the critical habitat issue, or would have significant consequences for
the recovery of listed species.
Lastly, we note that there are a wide variety of other aspects of
the ESA which can be used to help develop the cooperation of landowners
and land managers. These include HCPs, Candidate Conservation and Safe
Harbor Agreements, and the various ESA grant programs. Many other
programs can be and are also used to benefit species' habitat,
including Private Stewardship Grants and the Partners for Fish and
Wildlife program.
Additional Questions Submitted by Congressman Nick Rahall
Question 1: Does the Department of the Interior support Section
2(a) of H.R. 1835.
Response: While the Administration has not developed an official
position on H.R. 1835, we do note that a number of the provisions
contained in this legislation are similar to provisions in the
Administration's Readiness and Range Preservation Initiative (RRPI).
For example, Section 2(a) of H.R. 1835 would provide, among other
things, statutory authority for the Department to exclude military
facilities from critical habitat if there was an approved INRMP for
that facility which addressed the species in question. This is similar
to provisions of the RRPI, which the Department supports.
Question 2: H.R. 1835 would make it the policy of the Congress that
all Federal agencies must seek to conserve endangered and threatened
species ``insofar as is practical and consistent with their primary
purposes.'' How would this affect other Federal agencies' requirement
to comply with reasonable and prudent alternatives developed by FWS?
Response: Because this provision was removed from the bill during
the Committee mark-up, we did not analyze its possible effect.
Question 3: Current FWS Policy I understand that, in general, the
policy of the Secretary of the Interior has been to waive critical
habitat designation when an adequately prepared Integrated Natural
Resources Management Plan exists.
If H.R. 1835 is enacted, how, if at all, would this policy change?
Is my understanding correct? If yes, what factors does FWS consider in
determining whether an INRMP conserves listed species adequately?
Response: It has been our policy to continue the prior
Administration's practice of determining that a military base with an
adequate INRMP generally does not meet the definition of critical
habitat as set forth in section 3(5)(A) of the Act, in that no special
management or protection would be needed. This policy also applies to
non-military lands with adequate management plans. The Service has
considered three factors in evaluating INRMPs and non-military
management plans that the plan provides a conservation benefit to the
species, that it provides assurances that the plan will be implemented,
and that it provide assurances, usually through monitoring and
evaluation, that the conservation effort will be effective.
If H.R. 1835 were enacted in the version reported by the Committee,
we would still evaluate the INRMP to make such a determination.
Question 4: Consideration of Relevant Impacts - Section 4(b)(2) of
the ESA reads, in part, ``the Secretary may exclude any area from
critical habitat if he determines that the benefits of such exclusion
outweigh the benefits of specifying such area as critical habitat.''
Have the courts interpreting ESA Sec. 4(b)(2) placed any limits on
the U.S. Fish and Wildlife Service's ability to exclude habitats from
critical habitat designations pursuant to this provision of the ESA? If
so, please describe those limits. If not, please explain why ESA
Sec. 4(b)(2) is an inadequate tool for substituting an INRMP for a
critical habitat designation when FWS deems it appropriate.
Response: The courts have ruled that the Secretary's ability to
exclude areas under section 4(b)(2) is discretionary. Under the
applicable standards, as long as proper procedures are followed and
there is a rational basis on the record for the decision, we would not
expect a court to overturn a 4(b)(2) exclusion, whether related to
INRMPs or other factors. However, this is an action which is
discretionary, while DoD is seeking certainty.
Question 5: Litigation - Several pages of your written testimony
talk about the effects of litigation on the U.S. Fish and Wildlife
Service. Can you tell me how many of these lawsuits have been brought
against the FWS for critical habitat designation, or lack thereof, on
military land?
Response: The Service has been sued many times for failure to
designate critical habitat, and many of these suits have been about
critical habitat for species that occupy DoD lands. However the Service
has never been sued specifically for designating critical habitat on
military lands, or for failing to designate critical habitat
specifically on military lands. The concerns expressed in the DoD
statements relate to lawsuits over designation of critical habitat for
species that occupy military lands, and the concern in my statement
over lawsuits, insofar as it relates to DoD, is that a decision in a
case not related to that Department could be interpreted as precluding
our current practice of exempting DoD lands with INRMPs under section
3(5)(A).
Has this case been settled? When do you expect a final decision?
Response: As noted above, there is no specific lawsuit applicable
here.
What effect would the RRPI have on your litigation load given the
small percentage of lawsuits that regard military lands?
Response: It is not clear what affect the Range and Readiness
Preservation Initiative (RRPI) would have on our litigation workload.
It is always possible that the implementation of new statutory
authority will be subject to litigation.
Question 6: You mention in your written testimony voluntary
partnerships with States that include the military agencies. But many
of the partnerships that include military lands are mandated by the
Sikes Act.
To what extent do these mandated partnerships depend on voluntary
cooperation between the DoD and the FWS?
Are there instances where the cooperation has not been volunteered
to an extent to make the partnership successful?
Response: We have provided a sample of the many examples where
military installations have undertaken voluntary cooperative actions
that go well beyond the scope of Sikes Act requirements. We are not
aware of instances where cooperation has not been volunteered to an
extent to make the partnership successful.
Camp Shelby
The Service; the Mississippi Army National Guard; Mississippi
Department of Wildlife, Fisheries, and Parks; and the U.S. Forest
Service are in the final stages of developing a Candidate Conservation
Agreement for the Camp Shelby burrowing crayfish. The goal of the
Agreement is to conserve the species and its associated wetland bog
habitat through habitat management, habitat protection, habitat and
species monitoring, and education and information transfer.
Implementation elements include collaborative actions among the parties
on coordinating conservation activities, conservation schedule
implementation, funding conservation actions, and assessing
conservation progress. A multi-agency implementation team will ensure
that the Agreement's expected goals and objectives are being realized,
or will adjust efforts accordingly.
The parties to the Agreement believe that, with proper management,
protection of this species and its habitat are compatible with the
primary military training and other activities conducted by the
Mississippi Army National Guard and the U.S. Forest Service. On-going
and future management actions as outlined in the Agreement should
ensure conservation of the species and preclude the need for its
protection under the ESA.
Eglin AFB
Eglin AFB participates in the Gulf Coastal Plains Ecosystem
Partnership (GCPEP). This partnership between The Nature Conservancy,
state, federal, and private landowners was originally in response to
the dramatic loss of longleaf pine habitat in the southeastern U.S.
GCPEP promotes connectivity of managed lands in Alabama and the Florida
panhandle with a mission that includes sustainability of native plants
and animals (including over 160 rare and imperiled species), and the
conservation and restoration of the integrity of ecosystems. The
partnership, which covers 845,800 acres (and is growing), contains more
than 20 percent of the remaining longleaf ecosystem and comprises the
largest remaining nearly contiguous block of longleaf pine in the
United States.
Other examples of voluntary cooperation between the Service and
Eglin AFB include:
Eglin AFB provides ``donor'' red-cockaded woodpeckers
(RCWs) to be translocated as part of the ``Southeastern Translocation
Cooperative'' to other recipient lands whose populations are in danger
of extirpation;
Eglin AFB funds two Service aquatic biologists that work
on the reservation doing stream surveys and identifying aquatic
ecosystem restoration needs;
Eglin AFB has purchased sonic tags for Gulf sturgeon
marine habitat studies;
Eglin AFB in Florida hosted a large Earth Day event in
2002. Twenty thousand students participated with over 200 exhibitors,
including the Service.
Fort Polk
In Louisiana, Fort Polk, home of the Joint Readiness Training
Command (the most intensive force-level training in the country), has
long funded two Service wildlife biologists who conduct a variety of
habitat management and endangered species enhancement and recovery
activities (such as habitat improvements in support of the western
Louisiana recovery population of the RCW which includes adjacent lands
on the Kisatchie National Forest (KNF)). Fort Polk has also entered
into cooperative agreements with the Forest Service to use those
adjoining KNF lands to meet their training needs, and has actively
supported land stewardship and enhanced RCW management on those lands.
An active participant in the ``West Gulf Coastal Plain RCW
Translocation Cooperative,'' Fort Polk has also played a key role in
the partnership that developed the soon-to-be-signed Louisiana Pine
Snake Candidate Conservation Agreement covering Texas and Louisiana.
Fort Bragg
Fort Bragg in North Carolina is a leader in voluntary cooperation
that extends far beyond the measures required by the Sikes Act. Their
former base commander Col. Davis received a conservation award last
year from the Regional Director (of the Southeast Service Region).
Fort Bragg has consistently provided funding and support to the
North Carolina Sandhills Conservation Partnership. In addition, Fort
Bragg has voluntarily entered into a cooperative agreement with the
Nature Conservancy to purchase conservation lands under the Private
Lands Initiative. Fort Bragg also entered into an Interagency Agreement
with the Service for support of the North Carolina Sandhills Safe
Harbor Program. Under this program the Service works with private
landowners to restore their lands to benefit the recovery of the RCW.
Fort Bragg has also sponsored a workshop for the Sustainable
Sandhills Initiative. Under this initiative, Fort Bragg will work
cooperatively with the surrounding counties to achieve Smart Regional
Land Use Planning and to write a 25 year sustainability study.
McChord AFB and Fort Lewis
A study on phenology, nesting, success, habitat selection, and
census methods for the streaked horned lark was conducted by the
Washington Department of Natural Resources with partial funding by the
Service on McChord Air Force Base and Fort Lewis. Other partners were
Washington Department of Transportation and the Nature Conservancy.
This study vastly improved our knowledge about the streaked horned
lark, a candidate species. It also resulted in Fort Lewis voluntarily
modifying their mowing schedules at their airfield to minimize nest
destruction, not renewing a permit for a model airplane club that was
conducting activities where horned larks were nesting, and posting of
signs limiting entry at the nesting site.
Naval Air Station on Whidbey Island
A University of Washington project to study experimental
restoration techniques for the golden paintbrush was partially funded
with Service Coastal Program dollars through the Nature Conservancy
with the Naval Air Station on Whidbey Island. The Service botanist in
the Western Washington Office also provided technical assistance. The
project consisted of experimental outplantings of the golden paintbrush
under different treatments to develop improved restoration techniques.
Species-at-Risk Project
The Department of Defense, NatureServe, and local Natural Heritage
Programs are working with the Service to develop management plans for
selected species-at-risk occurring on military lands. The Department of
Defense has committed $130,000 to the effort, which means devoting
about $32,500 for each of four species, ideally from each branch of the
military service. For each of the four species selected, the Service
and the local Natural Heritage Program will help DoD identify the
threats to the species and develop management guidelines to prevent
further declines in the species on or near the installation where it
occurs. If any of these species are subsequently listed, conservation
efforts identified in the management plans could facilitate recovery
and section 7 consultations.
Question 7: Effectiveness of INRMPs - In your written testimony you
say that INRMPs are an ``effective vehicle'' through which DoD can plan
for the conservation of fish and wildlife species. Do you have any data
on which to judge the effectiveness of INRMPs at actually conserving
fish and wildlife species?
Response: Integrated Natural Resources Management Plans are a
relatively recent requirement--completed plans were required for
relevant installations by November 2001. Prior to the use of INRMPs,
Cooperative Plans to manage natural resources were developed by
installations in coordination with the Service and states. The
continued success of the military's recreational hunting and fishing
programs, in addition to the diverse populations of wildlife present on
installations, attest to the successful management provided by those
plans. We anticipate that INRMPs will build on the success of the
Cooperative Plans. With the Sikes Act's requirement for INRMPs,
management plans now require an ecosystem management approach and more
intense coordination and cooperation among military installations, the
Service, and states. As the plans are implemented in years to come,
this will ensure an ``effective vehicle'' for healthy and balanced
management practices beneficial to all plant and animal species on
lands managed by DoD.
Question 8: Camp Pendleton numbers
What is the current percentage of total acreage at Camp Pendleton
designated as critical habitat?
Response: A total of 4,622 acres have been designated critical
habitat on Marine Corps Base Camp Pendleton, most of which (about
2,767.82 acres) is leased to California State Parks. This acreage total
takes into account overlapping areas designated for the individual
species and does not include areas designated, but now vacated, by the
courts. Thus, about 3.69 percent of the Base's total land area (125,118
acres) is designated critical habitat: 1.49 percent is on Marine Corps
Base Camp Pendleton actively used by the military and 2.2 percent is on
lands leased to California State Parks by Camp Pendleton.
Is there proposed acreage under active consideration? Why or why
not?
Response: In 2000, the Service proposed approximately half of Camp
Pendleton as critical habitat for the gnatcatcher. Other proposals for
other species raised that to approximately 57% of the base. The
Service's final critical habitat designations for the gnatcatcher and
other species exempted both Camp Pendleton and MCAS Miramar from
critical habitat in the initial use of the 3(5)(A) exemption for an
INRMP. Both areas were also excluded under section 4(b)(2), and the
same approach was used for the other species. The final designations
for the gnatcatcher and some of the other species were subsequently
challenged in court. The Service then withdrew the proposals for
revision.
On April 22, 2003, the Service published a revised proposed rule to
designate critical habitat for the gnatcatcher and on April 24, 2003,
we published a revised proposed rule to designate critical habitat for
the San Diego fairy shrimp, the two main species at Camp Pendleton. The
comment period for both of these rules closed on June 23, 2003. The
acreage proposed at Camp Pendleton for each species is provided in the
table below. The areas proposed are primarily non-training areas based
on the Service's understanding of the base's training activities and
include lands leased to State Parks and for agriculture use, lands
between and adjacent to housing areas, and the Cocklebur Sensitive Area
that was ``set aside'' (designated as a non-training area) to offset
impacts from construction of a Navy Hovercraft facility.
However, the chart does not tell the entire story, as we may alter
our proposal in the final rule, and whatever final designation we make
for these species could well be challenged again in court. There is of
course no way to predict the outcome of such a challenge, or how it
might impact Camp Pendleton.
[GRAPHIC] [TIFF OMITTED] T6854.017
[Responses to questions submitted for the record by Rear
Admiral Moeller follow:]
Responses to questions submitted for the record by RADM Robert T.
Moeller, Deputy Chief of Staff for Operations/Plans and Policy, U.S.
Pacific Fleet, U.S. Navy
Question 1: You have heard in the past few weeks and you will
probably hear today that the military is looking for exemptions from
the ESA and MMPA so that you can get out of your environmental
responsibilities under these acts. How do you respond?
Answer: DOD is not seeking exemptions from the ESA and MMPA, nor
any other environmental statute. Allegations to the contrary are
erroneous and misleading. DOD will continue to comply with the same
environmental laws as private organizations when engaged in the same
activities, and as such DOD is subject to all federal environmental
laws. The military also has a unique responsibility to prepare for and
win armed conflicts--unlike any private organization, state, or local
government--and has land specially set aside to test and train for that
purpose. The changes being studied are narrowly focused on that testing
and training, i.e., ``military readiness activities.'' The changes
would not affect DOD compliance with environmental laws in the
management of its infrastructure or industrial operations that are
similar to those of private companies. For example, DOD will continue
to comply with all applicable environmental laws in the way that it
runs its sewage treatment plants, paint booths, management of
industrial hazardous wastes, etc. and DOD will continue all
environmental cleanup programs. With respect to DOD's unique military
readiness activities, the proposals simply provide greater flexibility
to protect both our environment and military readiness. In this regard,
DOD is seeking legislative clarification where the ESA and MMPA are
being applied beyond their original legislative intent. We are looking
at a combination of narrowly focused measures to enhance readiness
while maintaining our commitment to environmental stewardship.
Question 2: When INRMPS are developed who sets the recovery goals
for the species in question?
Answer: The U.S. Fish and Wildlife Service (USFWS) has the
responsibility under the Endangered Species Act to develop species
recovery plans and goals.
Question 3: How does NEPA fit into the process of INRMPs?
Answer: Navy policy and guidelines require completion of NEPA
documentation for INRMPs. Navy completed separate NEPA documentation
for each INRMP and required that a Finding of No Significant Impact be
signed before the INRMP development process was considered to be
complete.
Question 4: Why has DoD not exercised Section 7(j) of the ``God
Squad'' under ESA?
Answer: The Department of Defense has not used the national
security exemption in section 7(j) of the Endangered Species Act (ESA)
because, to date, no DoD action has placed the continued existence of
any threatened or endangered species in jeopardy. Under section 7(j),
the Secretary of Defense may direct the Endangered Species Committee (a
committee composed of various Cabinet and sub-Cabinet level officials)
to exempt a DoD action from the prohibitions in the ESA when such an
exemption is necessary for national security. Very few proposed DoD
actions, however, have even the potential to threaten the continued
existence of any species; generally DoD actions are confined to a
discrete area for a limited time, while most species listed under the
ESA are somewhat more widely dispersed. Hence, DoD would have to
utilize the section 7(j) exemption only in the rare instance in which a
particularly destructive, critical, national security activity was
required to take place in an area that represented the full range of a
particular species. Notwithstanding the rarity of such an occurrence,
the ability to use the exemption is a valuable hedge against future
emergencies.
A more common scenario for DoD under the ESA is that a proposed
action will result in the take of a small number of individual listed
species members or result in the destruction or adverse modification of
critical habitat--but not in a manner that threatens the continued
existence of the entire species. The ESA provides a means, through
consultation, for a federal agency to obtain an incidental take
statement from the appropriate agency (U.S. Fish and Wildlife Service
or National Marine Fisheries Service) that covers these situations.
Although such consultation, is time-consuming and, on occasion, results
in requirements for mitigation that adversely impacts the value of a
particular test or training exercise, DoD takes its responsibility to
conserve species seriously and has not suggested that the requirement
to consult on military readiness actions that could take threatened or
endangered species be eliminated altogether. DoD has limited its
legislative request on the ESA; it asks Congress only to allow the
Secretary of the Interior not to designate critical habitat on a
military installation when the Interior Secretary finds that an
integrated natural resources management plan (INRMP) for that
installation provides the special management considerations necessary
to protect the species for which critical habitat would otherwise be
designated.
DoD's suggested approach is more practical than its use of the
section 7(j) exemption under the ESA. Although the existing exemption
could be used to exempt use of designated critical habitat on an action
by action basis, DoD believes it is unacceptable, as a matter of public
policy, for indispensable readiness activities to require repeated
invocation of emergency authority--particularly when narrow
clarifications of the underlying regulatory statutes would enable the
continuation of both essential readiness activities and environmental
protection. Use of the INRMP, instead of designating critical habitat,
would allow DoD to plan, in coordination with the U.S. Fish and
Wildlife Service and the appropriate State wildlife agency, its use of
a range (for example) over time without having to engage in multiple
consultations with USFWS over what activities are, or are not,
appropriate in an area that might also be used for species
conservation. This would preserve efficiencies in both DoD and
Interior. The narrowness of this proposed exception to critical
habitat, however, is such that it would principally affect consultation
on unoccupied habitat. Because listed species are present on occupied
habitat, DoD would remain obligated, under section 7(a)(2) of the ESA,
to consult with USFWS and NMFS on its actions in such areas to ensure
that they do not jeopardize the continued existence of any threatened
or endangered species.
Question 5a: Included in your testimony, you talk about the Least
Tern and the Western Snowy Plover populations at the Naval Amphibious
Base Coronado. Specifically you state that Least Tern nests have
increased from 187 to 825 and Western Snowy Plover nests have increased
from 7 to 99. This has been over a 9 year period. Is this under an
INRMP?
Answer: The Least Tern and Western Snowy Plover have been
successfully managed under an INRMP at Naval Amphibious base Coronado
since 1998.
Question 5b: What are the recovery goals set by the USFWS on this?
Answer: There are presently no such goals in place.
Question 6a: You testify that military training areas were
originally located in isolated areas and now they are surrounded by
development, leaving the military lands as the only relatively
undisturbed habitat for many species. Does this mean that your
stewardship of these lands has actually come back to bite you?
Answer: Multiple encroachment issues continue to constrain DOD's
ability to maintain the combat readiness of America's military forces
and many issues, such as development around our ranges. Many military
facilities have become wonderful environmentally protected areas,
largely due to DOD management processes and the exclusion of other high
intensity land uses, which typically cause much more habitat damage
than testing or training. The land, sea, air, and space we use to test
our weapons and train our people are essential national assets, but
environmental and other restrictions can have unintended consequences
that increasingly limit the military's ability to effectively train for
combat.
Question 6b: If you cannot use these lands for training any more,
what options do you have other than not training?
Answer: When one considers that our forces must train as they fight
and will fight as they train, there are no viable options providing a
long-term solution. Some individuals allege that models and simulators
and additional ``work-arounds'' are possible options. However, models
and simulators can teach only so much. Military training involves
integrating unit maneuvers with employment of munitions under
conditions of stress. This can be done safely only on training ranges
set aside for that purpose. Similarly, ``work-arounds'' will seriously
degrade training and readiness when they go beyond being an
inconvenience to fundamentally undercutting the realism and quality of
training. The bottom line is that some ``work-arounds'' may satisfy
regulatory rules designed for non-military activities but do not meet
military training requirements. DOD is increasingly forced to restrict
or relocate training and testing when encroachment affects our ranges.
Both alternatives degrade the readiness of U.S. military forces.
Surveillance Towed Array Sensor System Low Frequency Active (SURTASS
LFA) Sonar
Question 7a: If you were to receive an incidental take permit for
the use of the SURTASS LFA sonar system and your subsequent monitoring
on its effects on marine mammals showed that the sonar caused serious
injury or death to a number of marine mammals, what would the result
be?
Answer: In accordance with the incidental take permit, any observed
effects on marine mammals would be promptly reported to the National
Marine Fisheries Service (NMFS). In parallel, the Navy would reevaluate
SURTASS LFA operations.
Question 7b: Would your permit be revoked or new mitigation
requirements be written into the permit?
Answer: NMFS would evaluate the situation and determine the
required action with regards to the permit.
Question 8: Although the stranding incidents in the Bahamas were
not related to low frequency sonar, what was the Navy's response to
using similar sonar systems in similar bottom types? Has the Navy
changed their testing and training operations as a result of the
lessons learned in the Bahamas?
Answer: After the Bahamas stranding, the Navy and NMFS launched a
joint investigation into the potential causes of the stranding and
issued the Joint Interim Report, Bahamas Marine Mammal Stranding Event
of 15-16 March 2000, in December 2001. The joint interim report
included the following mitigation recommendations:
a. Forego multi-ship, peacetime active sonar transmissions from
mid-range tactical sonars in the Northeast and Northwest Providence
Channels unless required for National Security reasons.
b. The Navy will carefully assess and closely scrutinize future
training and training areas with an eye toward avoiding those
situations where the combination of factors presented in this report
(oceanography, bathymetry, sonar usage, etc.*) would be likely to
occur.
c. If factors cited in the report exist at another location and
relocation of the action is not feasible, and the action must proceed,
Navy will adhere to the following procedures in the absence of a Letter
of Authorization (LOA) or an Incidental Harassment Authorization (IHA):
(1) Immediately before the operation, use every facility or
asset available to visually and acoustically survey for marine
mammals;
(2) Establish a zone of influence appropriate to the existing
oceanographic conditions and sonar source level settings;
(3) Employ properly trained lookouts;
(4) Implement shutdown procedures if marine mammals are
detected within the zones of influence established for those
species; and
(5) Immediately upon conclusion of the operation (where
feasible, usually in near shore waters), survey for injured,
disabled, or dead marine mammals using every facility or asset
available. Notify NMFS if animals are found so an appropriate
stranding response can be implemented.
d. NMFS will continue to conduct broad area surveys of marine
mammal locations, migratory pathways, and habitats that can be used by
Navy planners in selecting exercise sites.
The Navy reviews all major exercises for compliance with the
Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA),
and when appropriate, pursues IHAs or LOAs under the MMPA.
Consideration of the factors in the Bahamas report is included in each
of these reviews, and applicable mitigation guidelines are promulgated
by message. No multi-ship ASW training has been conducted in the
Providence Channel since March 2000. To the extent possible and
consistent with operational requirements, the Navy selects exercise
locations to minimize potential adverse effects to marine species of
concern (e.g., exercises scheduled near shore have been moved into
deeper water towards areas of less favorable habitat and historically
lower presence of marine mammals). In addition, the Navy, under its At
Sea Policy, is reviewing each level of activity--major exercises and
routing training events--for environmental compliance and mitigation
concerns.
*Note: The report lists the full range of factors such as sound
propagation characteristics (e.g., surface duct), unusual underwater
bathymetry, intensive use of multiple sonar units, a constricted
channel with limited egress avenues, and the presence of beaked whales.
Question 9: How much testing of marine mammal hearing is being done
by the Navy and/or NMFS? If not for this type of research, how much
would we know about the acoustic ranges of various marine mammals?
Answer: The Navy supports almost all marine mammal hearing testing/
research in the U.S. and internationally. Since 1991, the Navy has
invested nearly $10 million to studies of marine mammal low frequency
hearing sensitivity, critical ratios, critical bandwidths, masking,
effects of diving on hearing and temporary threshold shift thresholds
for seven species of marine mammals, plus fish and sea turtles. In
addition the Navy has supported studies of marine mammal, sea turtle
and fish hearing anatomy and the derivation of general predictive
models of hearing function for fish and marine mammals. NMFS does not
conduct hearing research, and currently provides small amounts of
funding (less than $200,000 per year) in support of ancillary
activities to hearing studies, such as providing stranded animal
specimens to researchers working on anatomical studies.
Without Navy support almost nothing would be known of marine mammal
hearing. Navy efforts began in the early 1960's with the discovery of
dolphin sonar, related studies of seal and sea lion hearing, and
development of the animal care and training procedures that are used
worldwide today. A recent external independent review of the most
recent progress in the ONR Temporary Threshold Shift program is posted
on the ONR website (www.onr.navy.mil, keyword: mammal). That report
assesses the current status of research in the field, and provides
detailed recommendations for potential new areas of study, such as
using evoked potential audiometric techniques to obtain rapid hearing
assessments from new species not readily tested with existing methods
(e.g. large baleen whales and beaked whales). Although other agencies,
including the Minerals Management Service, are sponsoring an increasing
amount of marine mammal behavioral research, practically all work on
hearing thresholds is and has been supported by the U.S. Navy.
Surveillance Towed Array Sensor System Low Frequency Active (SURTASS
LFA) Sonar
Question 10a: You testify that the LFA sonar system needs to be
tested and evaluated to be effective. This implies that the permits you
were requesting were to see how well the system works and were not just
for routine training. Is that correct?
Answer: The permit was requested, and granted, for training,
testing, and routine military operations. National Marine Fishery
Service (NMFS) regulation Part 216, Subpart Q--Taking of Marine Mammals
Incidental to Navy Operations of SURTASS LFA--50 CFR 216.180 states,
``The authorized activities...include the transmission of low frequency
sounds from the SURTASS LFA sonar and the transmissions of high
frequency sounds from the mitigation sonar...during training, testing,
and routine military operations of SURTASS LFA sonar.''
Question 10b: Would part of that testing be to see how the sonar
system affects marine mammals?
Answer: Yes. As part of the required monitoring mitigation set
forth in the Regulation and Letter of Authorization (LOA), any effects
of LFA on marine mammals noted during operations will be recorded and
reported to NMFS in quarterly and annual reports.
Under the Regulation and LOA, NMFS stated that while it believes
that the research conducted to date is sufficient to assess the impacts
of LFA on marine mammals, it would be prudent to continue research over
the course of the period of effectiveness of the regulation. Research
on the effects of low frequency sound and LFA on marine mammals may or
may not involve the use of the LFA array depending on the nature of the
research.
Question 10c: What types of mitigation and monitoring requirements
did the agency put into your permit?
Answer: There are geographic restrictions as well as monitoring
requirements associated with the permit.
Geographic Restrictions: NMFS adopted the Navy proposed action in
the Final environmental impact statement (EIS): SURTASS LFA sonar
operations would be conducted to ensure that the sound field does not
exceed 180 dB (i.e., the zone of potential for injury to marine
mammals) at a distance of 12-nm (22-km) from any coastline, including
islands, nor in designated offshore biologically important areas, those
portions of the world's oceans that are outside the 12-nm (22-km)
coastline where marine mammals of concern congregate in high densities
to carry out biologically important behaviors, during the biologically
important season(s) for that particular area. The 12-nm (22-km)
restriction includes almost all marine-related critical habitats and
National Marine Sanctuaries (NMSs). However, some parts of NMSs, that
are recognized to be important for marine mammals and are outside 12 nm
(22 km), were added to the restricted areas by NMFS during rule making.
In addition to at the geographic limitation set forth by the 180 dB
sound field, designed to protect marine mammals and other noise
sensitive marine animals, the Navy will establish a similar,
overlapping geographic limitation for human divers at 145 dB re 1 mPa
(rms) around all known human commercial and recreational diving sites.
Although this geographic restriction is intended to protect human
divers, it will also reduce the LF sound levels received by marine
mammals that are located in the vicinity of known dive sites.
Monitoring requirements: NMFS adopted, with modification, the Navy
proposal in the Final EIS to use visual, passive acoustic, and active
acoustic monitoring of the area surrounding the SURTASS LFA sonar array
to prevent the incidental injury of marine mammals that might enter the
180-dB SURTASS LFA mitigation zone. In order to minimize risks to
potentially affected marine mammals that may be present in waters
surrounding SURTASS LFA sonar, the Navy will: (1) conduct visual
monitoring for marine mammals and sea turtles from the vessel during
daylight hours; (2) use passive SURTASS LFA sonar to listen for
vocalizing marine mammals; and (3) use high frequency active sonar
(i.e., High Frequency Marine Mammal Monitoring [HF/M3] sonar similar to
a commercial fish finder) to monitor/locate/track marine mammals than
may pass close enough to the SURTASS LFA sonar's transit array to enter
the 180 dB sound field (LFA mitigation zone).
NMFS decided in the Final Rule to augment the 180-dB LFA mitigation
zone to ensure to the greatest extent practicable that marine mammals
are not subject to potential injury. In that regard, as an added
mitigation measure, NMFS established an interim ``buffer zone''
extending an additional 1 km (0.54 nm) beyond the 180-dB LFA mitigation
zone.
Question 10d: Would these mitigation measures have minimized the
harm to marine mammals?
Answer: Yes. The conclusion of the SURTASS LFA Final EIS was that
under the preferred alternative (with geographic restrictions and
monitoring mitigation as noted above) the potential impact on any stock
of marine mammals from injury is considered negligible, and the effect
on the stock on any marine mammal from significant change in a
biologically important behavior is considered minimal. NMFS, as a
cooperating agency on the Final EIS, concurred with this conclusion.
Question 10e: What would happen if the mitigation measures were not
effective?
Answer: If the mitigation measures were ineffective, LFA
transmissions would be suspended until corrective actions were
completed. For example, if the High Frequency Marine Mammal Monitoring
(HF/M3) sonar were to become inoperative, LFA transmissions would be
suspended until it was able to perform adequately.