[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]



 
            H.R. 1835, ``NATIONAL SECURITY READINESS ACT''

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

                          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



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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


                                 ------                                

                            C O N T E N T S

                              ----------                              
                                                                   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'')

                              ----------                              


                          Tuesday, May 6, 2003

                     U.S. House of Representatives

                         Committee on Resources

                             Washington, DC

                              ----------                              

    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.

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