[Senate Hearing 108-308]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-308

         ENVIRONMENTAL LAWS: ENCROACHMENT ON MILITARY TRAINING?

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

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                                     

                               __________

                             APRIL 2, 2003

                               __________

                                   ON

THE IMPACT OF ENVIRONMENTAL LAWS UPON MILITARY TRAINING PROCEDURES AND 
                   UPON THE NATION'S DEFENSE SECURITY

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



91-745              U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2003
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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                      one hundred eighth congress
                             first session

                  JAMES M. INHOFE, Oklahoma, Chairman
JOHN W. WARNER, Virginia             JAMES M. JEFFORDS, Vermont
CHRISTOPHER S. BOND, Missouri        MAX BAUCUS, Montana
GEORGE V. VOINOVICH, Ohio            HARRY REID, Nevada
MICHAEL D. CRAPO, Idaho              BOB GRAHAM, Florida
LINCOLN CHAFEE, Rhode Island         JOSEPH I. LIEBERMAN, Connecticut
JOHN CORNYN, Texaa                   BARBARA BOXER, California
LISA MURKOWSKI, Alaska               RON WYDEN, Oregon
CRAIG THOMAS, Wyoming                THOMAS R. CARPER, Delaware
WAYNE ALLARD, Colorado               HILLARY RODHAM CLINTON, New York

                Andrew Wheeler, Majority Staff Director
                 Ken Connolly, Minority Staff Director

                                  (ii)

  
                            C O N T E N T S

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                                                                   Page

                             APRIL 2, 2003
                           OPENING STATEMENTS

Allard, Hon. Wayne, U.S. Senator from the State of Colorado......     8
Boxer, Hon. Barbara, U.S. Senator from the State of California...    10
    Letter, City of Rialto, California...........................    12
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware..    37
Cornyn, Hon. John, U.S. Senator from the State of Texas..........    34
    Article, Birds and Warriors, Wall Street Journal.............    36
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho.....    18
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     1
Jeffords, Hon. James M., U.S. Senator from the State of Vermont..     2
    Memorandum, issues relating to the hearing on encroachment, 
      prepared by minority staff.................................     6
Lieberman, Hon. Joseph I., U.S. Senator from the State of 
  Connecticut....................................................    14
    Memorandum, exemptions of military training requirements 
      under environmental laws, Deputy Secretary of Defense Paul 
      Wolfowitz..................................................    15
Reid, Hon. Harry, U.S. Senator from the State of Nevada..........    18
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming.......     9
Wyden, Hon. Ron, U.S. Senator from the State of Oregon...........    10

                               WITNESSES

Benevento, Douglas, Executive Director, Colorado Department of 
  Public Health And Environment..................................    46
    Prepared statement...........................................   204
Clark, Jamie, Senior Vice President for Conservation Programs, 
  National Wildlife Federation...................................    48
    Prepared statement...........................................   209
    Responses to additional questions from:
        Senator Graham...........................................   231
        Senator Jeffords.........................................   230
Cohen, Bonner, Senior Fellow, Lexington Institute................    51
    Prepared statement...........................................   235
Cohen, Hon. Benedict S., Deputy General Counsel for Environment 
  and Installations, Department of Defense.......................    20
    Prepared statement...........................................    58
    Responses to additional questions from:
        Senator Boxer............................................    84
        Senator Graham...........................................    77
        Senator Inhofe...........................................    70
        Senator Jeffords.........................................    81
        Senator Reid.............................................    88
Gaffney, Frank J., Jr., President and CEO, Center for Security 
  Policy.........................................................    40
    Prepared statement...........................................   115
    Responses to additional questions from Senator Inhofe........   116
Holman, Barry W., Director, Defense Infrastructure Issues, 
  General Accounting Office......................................    41
    Prepared statement...........................................   118
    Responses to additional questions from Senator Inhofe........   126
Lindemann, Ingrid, Council Member, Aurora, Colorado, National 
  League of Cities Advisory Council..............................    50
    Prepared statement...........................................   232
    Responses to additional questions from:
        Senator Boxer............................................   235
        Senator Inhofe...........................................   234
Manson, Hon. H. Craig, Assistant Secretary for Fish, Wildlife and 
  Parks, U.S. Department of the Interior.........................    24
    Prepared statement...........................................   104
    Responses to additional questions from:
        Senator Boxer............................................   113
        Senator Graham...........................................   112
        Senator Inhofe...........................................   109
        Senator Jeffords.........................................   113
Miller, Dan, First Assistant Attorney General, Natural Resources 
  and Environment Section, Colorado Department of Law............    44
    Prepared statement...........................................   129
    Resolution, National Association of Governors..............141, 143
Suarez, Hon. J.P., Assistant Administrator for Enforcement and 
  Compliance Assurance, Environmental Protection Agency..........    22
    Prepared statement...........................................    95
    Responses to additional questions from:
        Senator Boxer............................................   102
        Senator Inhofe...........................................    98
        Senator Jeffords.........................................   102

                          ADDITIONAL MATERIAL

Articles:
    Group Calls for Cleanup of Perchlorate in Aberdeen...........   203
    Cleaning Cape Code Pollution, Boston Globe...................   201
    Fuel of Cold War Defenses Now Ignites Health Controversy, 
      Wall Street Journal........................................   192
    Military Cash Flows for New Water Supply, Cape Cod Times.....   198
Court brief, DOD vs. Alasks environmental organizations.........152-166
Letters:
    Association of State and Territorial Solid Waste Management 
      Officials................................................252, 254
    Pollution and military training issues......................169-191
    STAPPA/ALAPCO................................................   257
Regulations, Groom Lake, Nevada, Federal Register................   167
Resolutions, National Association of Attorneys General.........141, 143
Reports, USFWS and DOD land use agreements......................216-230
Statements:
    California Department of Toxic Substances Control, Edwin 
      Lowry......................................................   236
    U.S. Army, Col. Addison D. Davis, Fort Bragg, North Carolina.   239
    U.S. Air Force, Col. Frank C. DiGiovanni, Chief, Ranges, 
      Airfields and Airspace Operations and Requirements Division   249
    U.S. Navy, Rear Admiral Jonathan W. Greenert, Deputy 
      Commander, Pacific Fleet...................................   244

 
         ENVIRONMENTAL LAWS: ENCROACHMENT ON MILITARY TRAINING?

                              ----------                              


                        WEDNESDAY, APRIL 2, 2003

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:32 a.m. in room 
406, Senate Dirksen Building, the Hon. James M. Inhofe 
[chairman of the committee] presiding.
    Present: Senators Inhofe, Jeffords, Allard, Wyden, Thomas, 
Lieberman, Boxer, Crapo, Reid, Murkowski, Cornyn, Warner, and 
Carper.

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

    Senator Inhofe. Good morning. The hearing will come to 
order. In this time right now of war we are all concerned about 
the brothers and sisters and sons and daughters that are out 
there sacrificing their lives and risking their lives for us. 
For those who embrace the precautionary principle, now is the 
time to take precautions in the defense of our country in the 
interest of the lives of our sons and daughters and our sisters 
and brothers. I do not think anyone doubts that they need and 
deserve the very best training. Training is what this is all 
about today.
    Yesterday we had a hearing before the Armed Services 
Subcommittee on Readiness that I used to chair. We talked about 
this. This is a life and death issue. This is not something to 
be taken lightly. There are five people who are dead today who 
would have been alive if they have had sufficient live-fire 
training. It was right after we closed the live-fire training 
in Vieques that we lost five lives at the Ordora Range in 
Kuwait.
    So this is something that is very serious. I think that we 
need to treat it that way. I think all sides have acknowledged 
a legitimate problem here. We have established the fact. The 
question before us today is what legislation will solve the 
problem.
    Yesterday Senator Pryor suggested a pilot program. Senator 
Akaka has suggested that the Congress enact part of the request 
of the Department of Defense. The House Resources Committee 
Chairman, Richard Pombo, states that the proposals do not go 
far enough to aid all the citizenry and who feel the pinch of 
inflexible and ineffective environmental regulations. So where 
is the balance? We will examine that balance today.
    It is important to point out that this issue has been 
carefully examined. We have studied and studied this thing. My 
efficient staff is standing by to put up a chart. As you can 
see in the chart to my right, there have been at least 12 
hearings addressing the problems of encroachment. Those are the 
dates of those hearings. I have attended every one of those 
hearings.

Hearings addressing encroachment in the past 2 years
    1. Senate Armed Services Readiness and Management Support 
Subcommittee, 20 March 2001
    2. House Government Reform Committee, 09 May 2001
    3. House Armed Services Military Readiness Subcommittee, 22 May 
2001
    4. Senate Armed Services Readiness and Management Support 
Subcommittee, 28 February 2002
    5. House Armed Services Military Readiness Subcommittee, 08 March 
2002
    6. House Government Reform Committee, 16 May 2002
    7. Senate Environment and Public Works Committee, 09 June 2002
    8. House Resources Subcommittee on Fisheries Conservation, 
Wildlife, and Oceans 13 June 2002
    9. Senate Armed Services Readiness and Management Support 
Subcommittee, 06 March 2003
    10. House Armed Services Military Readiness Subcommittee, 13 March 
2003
    11. Senate Armed Services Readiness and Management Support 
Subcommittee, 01 April 2003
    12. Senate Environment and Public Works Committee, 02 April 2003
    We have talked about it and we have done very little. In 
fact, last year there were five proposals from the 
Administration. The only one that was passed was the watered 
down version of the Migratory Bird Act. The other four were 
not. The other four, while not exactly as they were before, is 
what we will be talking about today.
    The Clinton Administration recognized these problems as 
well and took action to solve them. The next chart to my right 
shows eight actions taken by the Democratic Administration to 
solve the varying encroachment problems that we established. 
The DOD merely seeks to continue these initiatives. All of 
those took place during the Clinton Administration.
    There are two types of obstacles that stare us in the face. 
The first one is the litigious initiatives by extremist groups 
such as the NRDC and the Center for Biological Diversity. These 
lawsuits pose a clear and present danger to the training and 
readiness to our military because they threaten to prevent even 
the sensible initiatives of the Democratic Administration that 
were proposed last year.
    Then there is the matter of workarounds. That is where you 
do not take action but you try to work around it. We are very 
good at workarounds. Workarounds are extraordinary methods of 
time and costs utilized to approximate achievement of a task in 
the face of obstacles. We are at a stage where the Department 
of Defense is working around workarounds as depicted on the 
next chart. The Department of Defense has testified that these 
workarounds now amount to a death by a thousand cuts.

Previous Encroachment Actions
    1. Democrat Congress passes Section 107 of the Federal Facilities 
Compliance Act 1992 requiring identification of when munitions become 
hazardous waste
    2. Memorandum of Understanding on Implementation of the Endangered 
Species Act 1994
    3. EPA Administrator Carol Browner issues Draft Military Munitions 
Rule 1995 defining when munitions become hazardous waste
    4. President Clinton issues Presidential Determination #95-45 1995 
exempting the Air Force's Groom Lake location (Area 51) from solid 
waste and hazardous waste laws
    5. EPA Administrator Carol Browner finalizes Military Munitions 
Rule 1997 defining when munitions become hazardous waste
    6. Secretary of Commerce Norman Y. Mineta and Secretary of Interior 
Bruce Babbitt 2000 propose amending the Marine Mammal Protection Act's 
definition of harassment to comport with the recommendations in the 
reports of the National Research Council
    7. Fish and Wildlife Service approves use of Integrated Natural 
Resource Management 2000 Plans in lieu of designation of critical 
habitat for the Coastal California Gnatcatcher in final rule
    8. Fish and Wildlife Service envisions use of Integrated Natural 
Resource Management 2000 Plans in lieu of designation of critical 
habitat for the Arroyo Toad in proposed rule
    In conclusion and in the final analysis, we must be mindful 
of the purpose for which military reservations were reserved 
and accommodate their purpose. This can be done with a mind to 
conservation, as the last Administration proved. Let us 
implement and codify their suggestions to afford the 
flexibility our military needs, while maintaining our high 
environmental standards.
    We actually have four pieces of legislation. This committee 
only has jurisdiction over three. It does not have jurisdiction 
over the Marine Mammal Act. That is a very significant one. I 
am going to be asking one of our witnesses on the second panel 
to say a little bit about that even though that is not within 
the jurisdiction of this committee.
    We have the Endangered Species Act. We have the Threatened 
and Critical Habitat Designations that would prevent the use of 
land in various areas according to the Arizona court case. 
There is the Superfund and the RCRA threatened with cleaning up 
after each training exercise each day. The Clean Air Act is 
threatened with restrictions on deployment of weapons systems.
    Of course, we will talk a little bit about the Marine 
Mammal Protection Act because I think all four pieces of 
legislation need to be considered at the same time.
    At this time I will turn to the Ranking Minority member, 
Senator Jeffords.

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

    Senator Jeffords. Thank you, Mr. Chairman, for convening 
this hearing today. It is important one.
    Like many of my colleagues I am a veteran. I have the 
greatest respect for those who serve this Nation. I served in 
the Naval Reserve for 30 years. I was on active duty in the 
Navy in the 1950's. My ship, the McNair, was the first U.S. 
military ship to navigate the Suez Canal after the Egyptians 
took control of the Canal. I am a member of the Veterans of 
Foreign Wars.
    Like every Senator and citizen here today I am concerned 
about our troops on our military bases in the States and 
throughout the world. I want them to have every advantage as 
they prepare for and engage in military combat. But in securing 
these advantages, I do not intend to place unfair burdens on 
civilians nor endanger public health or the environment.
    As you know, I believe that we should carefully examine any 
proposals to amend or effectively amend the laws of the 
jurisdiction of this committee. If we choose to act, this 
should be the committee that reports measures in our 
jurisdiction of the Senate.
    The proposals we have before us today would permanently 
alter the implementation of four statutes in our jurisdiction, 
each complex on its face. Each is interpreted enormous times by 
the courts through lawsuits brought by citizens as well as the 
regulated community. Each is implemented through regulations 
developed in an open public process. As our distinguished 
colleague, who chairs the Armed Services Committee, observed in 
a recent hearing in this committee, ``These laws have taken 
years to be put in place.'' Even when change is proposed during 
a time when the country is at war, it is this committee's 
charge to understand the implications of the change in those 
laws as well as the need for the change, and to weigh the 
consequences on public health and the environment.
    Having chaired the hearing on this subject last July and 
having listened to each witness, including the generals who 
testified that day, I must say I was left with an overwhelming 
sense that the case had not been made for such broad sweeping 
permanent exemptions of the Department of Defense, its 
operations, and mothball facilities, as well as its private 
contractors.
    It was clear that these proposals extended well beyond the 
resolution of training impediments. Although it was clear that 
the reasonable minds of the considerable expertise differed on 
the interpretation of the language the Department of Defense 
put forward, I learned that the proposals might well result in 
offsite consequences that would extend well beyond the term of 
``training mission'' or perhaps the entire war.
    For example, the facilities owned by the Department of 
Defense covers 13 sole-source aquifers. There is the 
Massachusetts military reservation in Cape Cod. Massachusetts 
is one such facility.
    There are numerous potential toxic effects that may result 
from the contamination that DOD is seeking to exempt from the 
hazardous waste laws. Perchlorates used as the primary 
ingredient in solid propellant for rockets, missiles, and 
munitions have been found in groundwater in numerous locations 
where rocket propellants and explosives have been handled. 
Perchlorates interfere with the iodized uptake in the thyroid 
gland which can affect a fetus in the newborn and result in 
changes in behavior, delayed development, and decreased 
learning capacity.
    After the recent publication in the Wall Street Journal 
article entitled, ``Bush Seeks Liability Shield for Perchlorate 
Pollution,'' I understand that the Environmental Protection 
Agency and the Department discussed the need to tighten up that 
proposal.
    I look forward to reviewing those provisions, but I 
understand that even under these revisions, EPA states, ``and 
citizens will lose their authority to address perchlorates when 
deposited on an operational range and the EPA's and the State's 
authority to address mitigation off-range will be limited.''
    Not only does the Department of Defense handle these and 
other dangerous substances, but its track record in so doing 
has admittedly not been a stellar one. I have reviewed one 
source that lists 22 sites where perchlorate contamination is 
associated with a Department of Defense owned or operated 
facility, including four sites in each of the States of 
California, New Mexico, and Texas.
    I have a list of the Department of Defense Superfund sites 
that is three pages long and lists approximately 130 sites. 
Even President Bush in his campaign speech in April 2002 said 
that the Federal Government is considered the Nation's worse 
polluter. Should we provide legal exemptions to an entity with 
such less cleanup?
    The Environmental Protection Agency certainly appears to be 
reluctant to blame the environmental laws for impediments for 
training. Last month, Administrator Whitman testified before 
this committee that she knew of no example of environmental law 
interfering with training activities. More recently, she wrote 
to Secretary Rumsfeld expressing concern that DOD witnesses in 
the congressional hearing had created an impression that EPA 
has prevented vital military training.
    I quote from her March 10th letter: ``When our agencies 
began working together on environmental issues in 2002, senior 
DOD officials conceded that EPA statutes and regulations were 
not presenting a current impediment to training and readiness. 
Unfortunately, the DOD witnesses failed to clearly distinguish 
between immediate ongoing problems with environmental laws and 
hypothetical issues which may or may not materialize leaving, I 
believe, an erroneous impression of the situation.
    ``I understand that our EPA witnesses here today will 
endorse the Department's legislative proposals. Yet, the 
Administrator's statements clearly question the need especially 
on a fast-track timetable for these examples. In fact, it is 
not clear that the Department of Defense is in agreement with 
the immediacy of the need for these exemptions.
    ``Since our hearing last July, we have seen no activity on 
the part of the Department to secure the waivers available 
under current law. In fact, in a memo dated November 2002, a 
Defense official discouraged field office attempts to secure 
waivers available under the Endangered Species Act out of 
concern that some concessions could run counter to the 
legislative relief that they are continuing to pursue with 
Congress.''
    In addition, other than this memo, we have yet to receive 
any answer to our inquiries as to why the current Section 7(j) 
procedure for waivers under the Endangered Species Act is 
inadequate and has not been utilized. This last month Deputy 
Secretary of Defense Wolfowitz encouraged employees to identify 
areas wherein ``exceptional cases waivers should be sought 
under current law.''
    This leads me to the conclusion that the more constructive 
dialog following this hearing today might be a dialog about how 
to implement or perhaps craft the waivers that govern those 
exceptional cases rather than a dialog focused upon permanent 
and sweeping statutory changes.
    Finally, I would like to address some of the statements and 
misstatements made about this proposal during the time it has 
been pending. First, we have frequently read statements that 
the proposals merely codify existing policies and practices 
implemented during the previous Administration. If this is 
true, I once again must question the need for legislation.
    However, contrary to these statements, the proposal is 
fundamentally different from the EPA's Military Munitions Rule. 
For instance, this proposal would eliminate EPA's ability to 
respond to emergency situations by limiting its statutory 
authority to respond to imminent and substantial endangerment 
to the health and environment under the Resource Conservation 
Recovery Act.
    EPA's regulation did not eliminate this statutory 
authority. EPA's regulations did not alter the Agency's ability 
to address constituents of munitions, like perchlorates. But 
this proposal does alter that authority.
    As for the Department of Endangered Species Act proposal, 
unlike the Clinton era proposal, the Department of Defense will 
determine what to do about species on its own lands. The 
Clinton era proposal was a case-by-case consultation, and the 
Department's new proposal is an exemption.
    I would also like to point out that in many of the examples 
of the Endangered Species Act problems at the training ranges, 
such as the examples of the species at the Barry Goldwater Air 
Force range in Arizona, there has been no designation of 
critical habitat. So, in fact, if training missions at this 
range or others were canceled, this apparently was not because 
of the critical habitat designation.
    Fort Richardson in Alaska is an example often cited as 
support for the proposal. Yet a few facts are often missing 
from discussion. In previous testimony, Department officials 
have stated that the Army would be forced to seek an operating 
permit and to perform corrective action or cleanup of Eagle 
River Flats. Contrary to the allegations, this lawsuit was 
brought by the citizens--not EPA.
    Also contrary to the allegations the lawsuit does not seek 
to compel a cleanup. A citizens suit under Superfund cannot the 
President or EPA to order a cleanup.
    We have received testimony that a proposed critical habitat 
under the Endangered Species Act would cover 57 percent of the 
base at Camp Pendleton in California. But, in fact, the Fish 
and Wildlife Service exclude all but 875 acres of Camp 
Pendleton's approximately 120,000 acres of training land from 
its final critical habitat designations. That is less than 1 
percent of the base.
    The list of disputes continues, Mr. Chairman. If nothing 
else, they highlight the complexity of these issues and our 
need to examine them carefully. I am concerned that these 
proposals are too broad and may, in fact, enact unintended 
harm. In addition, I am concerned that the contamination not 
cleaned up or prevented by the military will be left for others 
to address. That includes the industry and citizens alike. 
Critical habitats not maintained on military lands means 
compressed habitat requirements on surrounding lands, much of 
which are owned by private citizens.
    I stand ready to work with you, Mr. Chairman.
    I would ask that a minority staff memorandum be placed in 
the record in its entirety.
    Senator Inhofe. Without objection.
    [The document requested by Senator Jeffords follows:]
                       minority staff memorandum
    To: Senator Jeffords
    Subject: DOD Hearing on Wed. April 2nd
    Date: April 3, 2003

    This Wednesday April 2, 2003 at 9:30 AM in 406 Dirksen Senate 
Office Building, the full Committee on Environment and Public Works 
will hold a hearing on ``issues related to military encroachment''.
    As part of the 2004 Department of Defense Authorization Bill, the 
DOD submitted the Range Readiness and Preservation Initiative (RPPI). 
The RPPI creates broad statutory exemptions for ``training activities'' 
of the DOD from five environment and resource laws: the Clean Air Act, 
the Comprehensive Environmental Response, Compensation, and Liability 
Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), the 
Endangered Species Act, and the Marine Mammal Protection Act. All of 
these laws, with the exception of the Marine Mammal Protection Act, 
fall under the jurisdiction of the EPW committee.
    Because these proposals involve so many aspects of laws that are 
individually complex, this memo is an annotated bibliography to the 
many materials enclosed.
Enclosed Materials
    1. The text of the Range Readiness and Preservation Initiative as 
it appears in the 2004 Department of Defense Authorization Bill. This 
is the reference text for all materials. [Range Readiness.pdf]
    2. An analysis by the Democratic Staff of the House Commerce 
Committee on the effects of the RPPI on the laws effected should it 
become law. This document provides a concise overview of the RPPI on 
existing law. [House Commerce Committee.pdf]
    3. An analysis by multiple environmental organizations on the 
effects of the RPPI on the laws effected and on the operation of 
existing programs. [Environmental Analyis of RPPI.doc]
    4. A focused analysis on the effects of the RPPI on the Clean Air 
Act. [Clean Air Act Background.doc]
    5. A report by the GAO that concludes the DOD has not provided any 
evidence that environmental laws have encroached on the military's 
ability to conduct training. [GAO Encroachment Report.pdf]
    6. Internal comments submitted by EPA to OMB on, among other 
provisions, its opinion of the RPPI. In its comments, EPA generally 
opposes the RPPI because it is too broad and because it would pre-empt 
EPA from enforcing the laws under its jurisdiction. [EPA Comments to 
OMB.pdf]
    7. A letter from the Association of State and Territorial Solid 
Waste Management Officials (ASTSWMO) opposing the CERCLA and RCRA 
provisions of the RPPI. [ASTSWMO letter.pdf]
    8. A letter from the State and Territorial Air Pollution Program 
Administrators (STAPPA) opposing the Clean Air provisions of the RPPI. 
[STAPPA letter.doc]
    9. A bipartisan resolution passed by the National Association of 
Attorneys General opposing the RPPI at their National Conference in 
March of 2003. [NAGG.doc]
    10. A memo sent by Deputy Secretary of Defense Paul Wolfowitz 
requesting that all branches of the military submit requests to use the 
existing statutory exemptions in nine environment and resource laws. 
This request contradicts DOD's conclusion that the existing exemptions 
in law do not work and call into question the DOD's need for the RPPI. 
[Wolfowitz--memo.pdf]
    11. Document Nos. 11, 12, 13, 14, and 15 all concern statements the 
Department of Defense has made in relation to the Endangered Species 
Act. #11 presents the reality behind anecdotal stories presented by the 
DOD in requesting existing statutory exemptions. [Anecdotes.doc]
    12. Document No. 12 presents the reality behind DOD's statements 
about the legal framework of the ESA. [Misstatement.doc]
    13. Document No. 13 provides a table of statements by Fish and 
Wildlife Service showing that INRMP plans under the SIKES Act are 
insufficient to protect endangered species. [FWS Review.doc]
    14. Document No. 14 shows that FWS has repeatedly granted requests 
under existing law to exclude land from critical habitat designation. 
[FWS DOD requests.doc]
    15. Document No. 15 outlines the many success stories of FWS 
working with DOD to protect endangered species. [Success stories.doc]
    16. A briefing document on the many false claims DOD has made on 
the effects of environmental laws on training at Camp Richardson, 
Alaska. [Camp Richardson.wpd]
    17. A briefing document on EPA's ``military munitions rule''. The 
Administration has claimed that the RPPI would simply codify the 
existing rule. This document specifies why that is not true and 
outlines specific differences between the rule and the RPPI. [DOD 
munitions.wpd]
    18. Testimony by Dan Miller, Assistant Attorney General of 
Colorado, before the House Armed Services Committee on the Attorneys' 
General specific concerns on the RPPI's effect on the State's authority 
under CERCLA, RCRA, and the Clean Air Act. [NAAG--2.doc]
    19. A series of editorials from newspapers across the country. 
While there have been editorials written in many more papers, this 
represents a sample cross-section of the country. Included are 
editorials from the L.A. Times, The Boston Globe, The Milwaukee Journal 
Sentinel, The Clarion-Ledger of Jackson Mississippi, The Fayetteville 
Observer of Fayetteville, NC (home community to Fort Bragg), and the 
Tucson Citizen. If you wish to see a comprehensive list of editorials 
please visit the committee's web site: www.epw.senate.gov and look for 
the hearings links for April 2, 2003--[LA--Times.doc]; [Boston.doc]; 
[Milwaukee.doc]; [Jackson (MS) Clarion-Ledger Tucson Citizen.htm]; 
[Fayetteville.htm].
    Senator Inhofe. Thank you, Senator Jeffords.
    Even though it is the practice not to have opening 
statements other than the chairman and the ranking member, I 
know there is a lot of interest in this. If any of you have 
opening statements, I would ask you to confine your opening 
statements to 3 minutes in the order in which you arrived, 
which was Senators Allard, Thomas, Wyden, Boxer, Lieberman, and 
Crapo.
    Senator Allard, did you have a short opening statement?

 OPENING STATEMENT OF HON. WAYNE ALLARD, U.S. SENATOR FROM THE 
                       STATE OF COLORADO

    Senator Allard. I do have a short one, Mr. Chairman.
    First of all, I want to tell you how thankful I am that you 
are moving forward with this particular issue because I believe 
it is a problem. The State of Colorado finds itself in the 
middle of many of these issues. In fact, we have a couple of 
individuals here today from Colorado that will be testifying.
    Unfortunately, I will not be able to stay for this hearing 
because I will chairing the subcommittee which will be looking 
at the environmental management's cleanup of Rocky Flats in 
Colorado, as well as what is happening in this committee. As 
you know, and members of this committee know, it is not unusual 
that we run into this kinds of conflicts.
    Again, this is an extremely important hearing. I want to 
personally welcome those two individuals from Colorado that 
will be testifying: Ingrid Lindemann, who is a Council Member 
from Aurora, will be testifying.
    I want to welcome also a very good friend of mine and 
somebody who has worked for me, Douglas Benevento. I have known 
Doug for over a decade. As always, it is good to see a Cabinet 
member from Colorado Governor Bill Owen's administration here 
today. He is head of the Department of Health in Colorado. I 
believe he, as well as his department, can be very helpful in 
finding some common sense solutions that this committee faces 
regarding encroachment on military training sites.
    The issue will continue to be a problem. I agree with the 
State of Colorado that knee jerk reactions happen on both sides 
when these sensitive subjects are broached. However, I am 
certain that we can find a solution to the military's problem 
that will be straightforward and balanced. In addition to that, 
I think we can apply good science.
    My overall goal is to give the military the most 
flexibility and training that they need to successfully 
continue their mission. We understand that, I think, in today's 
environment. I believe that my home State's approach is a good 
first step in achieving this. I find the correct solution that 
the Congress needs is the State's input. I thank Mr. Benevento 
for his testimony.
    Again, Mr. Chairman, thank you for holding this hearing.
    Senator Inhofe. Thank you, Senator Allard.
    Senator Thomas?

 OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE 
                        STATE OF WYOMING

    Senator Thomas. Very briefly, Mr. Chairman. I thank you for 
having this meeting. I think we should have been dealing with 
this before. There is no question about it. But now it is 
obvious that we need to be doing it. I am glad that EPW is 
considering doing something.
    Senator Inhofe. I would interrupt for just a moment. In my 
opening statement I mentioned that we have had 12 hearings on 
this but nothing has happened.
    Senator Thomas. That is my point. We are having another 
hearing, and hopefully something will happen this time. We have 
to improve the ability for the military needs, of course.
    You mentioned that EPW has been working on this, but the 
fact is lawsuits are what bring this up. If it weren't for 
lawsuits, we probably would not have all the problems that we 
do have. The other problem, of course, which I am seeking to 
deal with that also applies here is that we need to do a little 
better job of selecting and getting these things in the 
Endangered Species Act. I don't think we have some in there 
that really should not be there.
    But we have to deal with the encroachment. Certainly the 
exemptions are temporary and we need to find a way to work this 
out on a long-term basis. I just cannot believe that we are 
going to inhibit military training through the Endangered 
Species Act.
    Thank you, sir.
    [The prepared statement of Senator Thomas follows:]
 Statement of Hon. Craig Thomas, U.S. Senator from the State of Wyoming
    Mr. Chairman, I am pleased that the committee is holding today's 
hearing regarding the encroachment of environmental laws and their 
impacts on military bases and training facilities.
    While I think it's timely for the committee to address this issue, 
we should not lose sight of the needs of local landowners, public land 
managers, communities, and State governments who continue to express 
frustration over the implementation of the Endangered Species Act 
(ESA). It is my hope that this committee will hold a hearing later this 
year on proposals, such as the bill I have introduced (S. 369), which 
seeks to instill some common sense in the ESA process.
    With regards to President Bush's proposed ``Readiness and Range 
Preservation Initiative,'' I believe it's important to point out that 
the Administration is not trying to take away environmental 
protections. Rather, what the Administration is trying to do is take a 
pro-active step to codify current agency practices. This approach 
relies upon a host of past Administration practices and balances 
environmental protections with our military's readiness needs.
    As the General Accounting Office noted in a 2002 report, ``Over 
time, the impact of encroachment on training ranges has gradually 
increased. While the effect varies by service and individual 
installation, in general encroachment has limited the extent to which 
training ranges are available or the types of training that can be 
conducted. This limits units' ability to train as they would expect to 
fight and/or requires units to work around the problem.''
    Now more than ever, the Department of Defense needs to adequately 
train our soldiers for combat. Without multiple opportunities for 
realistic ``live weapons training'' our soldiers will be put in harms 
way. Clearly, changes are needed because environmental groups have 
filed lawsuits which could potentially hinder or even ban military 
training.
    Chairman Inhofe, I stand committed to working with you on this 
issue and look forward to hearing from today's panelists.
    Senator Inhofe. Thank you, Senator Thomas.
    Senator Wyden?

  OPENING STATEMENT OF HON. RON WYDEN, U.S. SENATOR FROM THE 
                        STATE OF OREGON

    Senator Wyden. Thank you. Mr. Chairman, for two decades I 
have enjoyed working with you. I think it is important to shed 
light on this issue.
    But, colleagues, I cannot support forcing the Congress to 
make a false choice between the readiness of our troops for 
combat overseas and the health and safety of our citizens here 
at home. Like Chairman Inhofe, I fully support our troops in 
combat. That includes the critical training that is needed so 
that they can be ready for battle.
    But the record is absolutely bereft of concrete examples 
that indicate that exemptions from environmental laws have 
anything to do with training and readiness. I think it is 
particularly important, colleagues, that we explore the fact 
that the major environmental laws already include exemptions 
for military readiness.
    Apparently none of these exemptions have been invoked. 
There has never been a claim that an exemption was needed under 
the Endangered Species Act. There has been no exemption under 
the Clean Air Act. There has not been a claim under the 
Superfund or RCRA. These laws have been on the books through 
Vietnam, in Iraq during Desert Storm, in Bosnia, and in 
Afghanistan.
    I am very troubled about the idea that now we are talking 
about playing Russian roulette with the health and safety of 
U.S. citizens here at home when it does not seem to be that 
there has been any significant exercise of laws that are on the 
books now to protect our troops to ensure military readiness 
and to guarantee national security.
    Mr. Chairman, I think you are performing a great service 
that we can examine this issue and get into some of the 
specifics. I always enjoy working with you. I am going to 
continue to do that. I thank you.
    Senator Inhofe. Thank you, Senator Wyden.
    Senator Boxer?

OPENING STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Boxer. Thank you, Mr. Chairman.
    The military protects us from harm all over the world for 
which we are eternally gratefully. How sad it would be if our 
military hurt the health and safety of our citizens here at 
home by ignoring environmental laws that apply to every other 
entity in the private and public sectors. How sad it would be 
if the military ignores polluter pays and leaves our hometowns 
to pick up the cost of pollution cleanup. This doesn't even 
seem to me to be consistent with our military who really are, 
in so many ways, role models for our youngsters and the rest.
    I want to give you one quick example in my remaining two-
and-a-half minutes about one of my communities which finds 
itself with a great deal of perchlorate in its water. 
Perchlorate is a highly toxic explosive salt that was widely 
used in the 1940's through the 1960's. It is still used in 
lesser amounts as an oxidizer for solid rocket fuel and 
ammunition.
    Even at low concentrations, perchlorate poses a serious 
threat to human health. The greatest risks are to pregnant 
women, babies, and children. More than 20 million Americans 
drink water contaminated with perchlorate. At least 100 sites 
in 19 States report perchlorate contamination.
    In California alone, perchlorate has been found to 
contaminant more than 400 water sources in 20 California 
counties. It is estimated that almost 10 million Californians 
are currently drinking water contaminated with perchlorate.
    The U.S. EPA believes that perchlorate may be present 
wherever rocket or rocket fuel was made in at least 162 sites 
in 36 States, most of which was conducted to defense-related 
activities.
    The language in the proposal that we have seen would exempt 
DOD and its contractors from responsibility for cleaning up and 
even preventing the spread of perchlorate contamination.
    I have a letter from the city of Rialto. I ask unanimous 
consent to submit it.
    Senator Inhofe. Without objection.
    [The referenced letter follows:]

    
    
    
    
    Senator Boxer. I would just like to read a couple of 
paragraphs in the letter. ``Our water and our land are two of 
our strongest assets. The pollution that has occurred was not 
done by our residents, but rather done by contractors in the 
DOD. Our residents should not and cannot be held responsible 
for the pollution that was done in support of previous war 
efforts.
    ``If our community does not receive some assistance or gain 
the financial means to support the required cleanup, we will 
have no choice but to restrict pumping, implement drought 
conservation plans, and stop all future development and job 
creation.''
    Mr. Chairman, it is unacceptable that these cities would be 
abandoned to financial ruin. In closing, I would just say as 
Senator Wyden has suggested, we have looked at this issue many 
times. The GAO testified before the House in 2002 that the 
military reports a high degree of combat readiness. They saw 
absolutely no problem with obeying environmental laws.
    I hope that we will fight this. I think this is a big 
setback for our military and our country.
    Senator Inhofe. Thank you, Senator Boxer.
    Senator Lieberman?

  OPENING STATEMENT OF HON. JOSEPH I. LIEBERMAN, U.S. SENATOR 
                 FROM THE STATE OF CONNECTICUT

    Senator Lieberman. Thank you, Mr. Chairman. As a member of 
both the Senate Armed Services Committee and this committee, I 
have studied this matter carefully and concluded that the 
exemptions from the environmental laws that the Department of 
Defense seeks are unjustified and the harm that they would do 
to our natural resources. In fact, public safety is 
considerable.
    I know that some argue and believe that we must choose 
between a strong defense and a clean environment. I do not. We 
can protect our environment and protect our security at the 
same time. In other words, we can defend the red, white, and 
blue and be green at the same time. In fact, we must do both.
    I understand, obviously, and appreciate the heroic work 
that our men and women in uniform are doing overseas today and 
the extensive training they must do here at home to get battle 
ready. Nothing should interfere with that preparedness, or 
compromise their training. But I conclude that our 
environmental laws do neither, and in suggesting otherwise I 
worry that there are some who are trying to dress up or push 
for major environmental rollbacks in what might be called a 
national security camouflage.
    Ideology and convenience might support the believe that the 
Nation's security and the health of our environment are 
naturally at odds. But the evidence that I have seen does not. 
In fact, Christine Whitman, the EPA Administrator, had her 
budget hearing before this committee and asserted that in her 
judgment there is not a single training mission in this country 
being adversely affected by environmental protection.
    If any problem might arise, the current laws do have the 
flexibility required to allow for the training our soldiers 
need. Our environmental laws already have many exemptions that 
the Pentagon has authorized to evoke. In fact, Under Secretary 
of Defense Paul Wolfowitz recently distributed a memorandum 
asking the services to seek to invoke those exemptions.
    Mr. Chairman, I ask that a copy of that memo be placed in 
the record.
    Senator Inhofe. Without objection.
    [A copy of the document follows:]

    
    
    
    
    
    
    Senator Lieberman. Senator Boxer has talked about a 
specific example in California so I will not talk about that in 
detail. But it is real.
    I will make one final point. The changes being contemplated 
here are substantial. They are going to have far-reaching 
effects on a complex combination of environmental and public 
health laws. Therefore, I think they demand thorough scrutiny 
in the congressional committee that is most responsible for 
such consideration, which is this one.
    I think it would be inappropriate for my other committee, 
the Armed Services Committee, to push these changes through 
without the consent with this committee.
    I thank you, Mr. Chairman.
    Senator Inhofe. Thank you, Senator Lieberman.
    Senator Crapo?

 OPENING STATEMENT OF HON. MICHAEL D. CRAPO, U.S. SENATOR FROM 
                       THE STATE OF IDAHO

    Senator Crapo. Thank you, Mr. Chairman. I have 
responsibilities on the floor where I am now late. So I am 
going to submit my statement for the record.
    I just wanted to point out that I believe that it is 
imperative for us to evaluate these critical issues. Many of 
the statements already made have made it clear that what we are 
seeking to achieve here is the proper balance between the 
protection of our national security interests and the 
protection of our environment.
    I am one of those who believes that there is not an 
immovable or unjustifiable conflict there, and that we can find 
that balance. I hope that is what the testimony here today will 
help us do. For the witnesses that I am not going to be able to 
hear, I want you to know that I have already read most of your 
testimony and will continue to evaluate this very carefully.
    [The prepared statement of Senator Crapo follows:]

  Statement of Hon. Michael D. Crapo, U.S. Senator from the State of 
                                 Idaho

    Mr. Chairman, thank you for holding this hearing. I appreciate your 
leadership on this issue.
    Like much of what is considered in this committee, what we are 
discussing today touches on multiple issues of importance to the 
Congress and the American people.
    The Readiness and Range Preservation Initiative provisions proposed 
for the Defense Authorization act for Fiscal Year 2004 are about 
national defense, the preparedness of our troops, and protection of the 
environment.
    The impact of environmental laws on military preparedness is a 
serious concern. We must ensure that our soldiers, airmen, sailors, and 
Marines are able to train as they fight. We must ensure that our 
military personnel are ready to face any enemy, in any condition.
    However, I do not agree that protection of our environment must be 
at odds with military readiness. While the Department of Defense has a 
unique mission; it has a strong record of environmental stewardship. I 
have confidence that as we learn more about the environment, the 
military will continue to make great strides in protecting it.
    One of the criticisms I often hear about our environmental laws is 
that they create a culture of litigation. They do not meet their 
intended goal and that, too often, the court is making decisions about 
the environment rather than environmental professionals. It is my 
understanding that it is this fear that has prompted the Administration 
to make this proposal.
    Some have suggested that the provisions we are considering today 
are a sweeping exemption from environmental laws. Others would argue 
that it is a codification of existing practices, narrowly prescribed to 
address unique military preparedness circumstances. I hope that this 
hearing will give us a better understanding of what the Administration 
is proposing and why it is necessary.
    I know that the distinguished Senator from Virginia a strong 
advocate for the environment and our nation's military has held a 
number of hearings in the Senate Armed Services Committee on this 
subject both this year and last. In addition, this committee held a 
hearing on similar provisions that were proposed as part of the Fiscal 
Year 2003 Defense Authorization bill.
    Clearly, we are all united in support of our armed forces. We want 
them to have the best training in the world. We also want to protect 
the environment. As I said, I do not think these are mutually 
exclusive.
    Senator Inhofe. Thank you, Senator Crapo.
    Senator Reid?

  OPENING STATEMENT OF HON. HARRY REID, U.S. SENATOR FROM THE 
                        STATE OF NEVADA

    Senator Reid. Thank you, Mr. Chairman.
    My colleague from Nevada, John Ensign, now holds the post 
that you held previously on the Armed Services Committee, the 
Subcommittee on Readiness and the Armed Services Committee. He 
has chaired two hearings very ably on the subject of this 
matter here today. My colleague, John Warner, who is also one 
of the senior members of this committee, serves as chair of the 
Armed Services Committee.
    I think that committee has done good work, but this is the 
right venue, in my opinion, for consideration of the Defense 
Department's proposal. I do not see how anyone could have any 
concern about that with your background, Mr. Chairman, in the 
military and all that you have done for the military.
    This legislation, this object that we are talking about 
today, proposes far-reaching and permanent exemptions to four 
laws directly within this committee's jurisdiction. I have been 
on this committee since I have been in the Senate. I have been 
chair on a couple of different occasions and served as chair of 
various subcommittees.
    I have asked the Chairman and Senator Warner to ensure that 
this committee consider and mark up any proposal to amend these 
laws. I think you should work with us on that. The expertise 
and the jurisdiction over this matter resides here and not in 
the Armed Services Committee.
    The central question of this hearing is whether our 
environmental laws hinder our ability to train our troops to 
prepare and execute a war. Always important, this question 
takes on special meaning with our young men and women now 
engaged in war.
    I hope no one in this room stands for impeding the ability 
to ensure that they have our troops receive the best training 
possible. Nevada has always been on the forefront of providing 
for the Nation's defense. We have large military installations 
there. We have training exercises that go on every day in 
Nevada.
    We watched the Nevada Test Site as a boy. Bleachers were 
erected so that people could watch the explosions. We did not 
think a lot about the health and environmental consequences of 
testing at the time. It was a spectacle to watch. Those 
bleachers are still there. You can go sit on them if you care 
to and look at the view those people had many decades ago. 
Today at that site we are processing expanding of the site. It 
will become the Nation's premier counter terrorism training 
center. I support these efforts.
    Proponents of the plan to exempt the military for several 
environmental laws have few concrete examples showing that 
those laws impede military readiness or that a blanket 
exclusion would improve readiness. In fact, those laws already 
provide for a case-by-case exclusion when national security 
dictates.
    There is one broad exclusion that allows for the suspension 
of any administrative action--environmental or otherwise--in 
the name of national defense. There are many good reasons to 
favor case-by-case exclusions over the broad exemptions the 
Department asks. I want to talk about just one.
    We train our top pilots at the Naval Air Station just 
outside the small rural community of Fallon. In the course of 
just a few years, 16 children have been diagnosed with leukemia 
in Fallon. A number of these children have died. The Centers 
for Disease Control, the agency for toxic substance disease 
registry, and the State of Nevada have been searching for 
environmental clues to the leukemia problem in Fallon. At a 
hearing that was held there 2 years ago to the day, I heard the 
parents of those children and others ask for answers to the 
question of why their kids were sick.
    One area of concern was a Naval Air Station where the leaks 
of JP-8 fuel from the pipeline. Could these leaks have had an 
impact? What is the impact of air emissions from over flights? 
We do not conclusively know the answers to these questions. 
What I do know is that the commanders there can show that they 
have followed the environmental laws. There have been no 
exemptions. I know that JP-8 or some other chemical leaked at 
the site. Federal and State environmental officials would have 
the authority to clean up it.
    I know the Clean Air Act applies to the base and the people 
in Fallon enjoy the same clean air protection that people in 
Reno, Sparks, and the rest of Nation enjoy, as it should be.
    So I would hope that the Department would look at what has 
gone on in Fallon that is good. The people have Fallon have the 
assurance that these protections have always been there.
    Senator Inhofe. Thank you, Senator Reid.
    Our first panel consists of three people who probably 
really know this subject. Two of those people appeared before 
the Senate Armed Services Committee on Readiness yesterday. We 
have Benedict Cohen, Deputy General Counsel for Environment and 
Installations for the Department of Defense.
    We have J.P. Suarez, Assistant Administrator for 
Enforcement and Compliance Assurance, of the Environmental 
Protection Agency. Third is Craig Manson, Assistant Secretary 
for Fish, Wildlife and Parks, Department of the Interior.
    I welcome all of you. We would ask you to submit your 
entire statement. It will be in the record. Please keep your 
remarks down to about five or 6 minutes, if you would, please.
    Mr. Cohen?

STATEMENT OF HON. BENEDICT S. COHEN, DEPUTY GENERAL COUNSEL FOR 
      ENVIRONMENT AND INSTALLATIONS, DEPARTMENT OF DEFENSE

    Mr. Cohen. My name is Ben Cohen. I am Deputy General 
Counsel for Environment and Installations of the Department of 
the Defense. It is a privilege to be here to discuss the 
Department's readiness and range preservation initiative.
    I would like to try at the outset to define what is and is 
not at issue in our legislative package. Press accounts 
suggests that the Department of Defense is on the offensive, 
seeking sweeping exemptions from the environmental laws. It has 
been suggested that we seek such exemptions for our closed 
ranges, our contractors, our non-readiness activities, and our 
existing cleanup obligations concerning chemicals like 
perchlorate.
    These interpretations do not reflect the Department of 
Defense's actual intent. We have already revised our proposal 
to clarify that it has no effect on closed ranges. Working with 
the Environmental Protection Agency, we have developed further 
language clarifying that it has no effect on our contractors. 
We stand ready to work with this committee or anyone else to 
further clarify the sole focus of our proposal: the Defense 
Department's testing, training, and military operations.
    In reality, our proposals are strictly defensive in nature, 
designed to shore up existing State and Federal regulatory 
policies that are facing courtroom challenges. It is private 
sector litigants who seek a sweeping change in long-standing 
environmental policy. They believe that military readiness 
activities have been drastically under-regulated and they seek 
through litigation to overturn existing State and Federal 
regulatory policy, and to impose new and unprecedented burdens 
on our core military readiness activities.
    That, Mr. Chairman, is what is actually at issue in this 
debate. That regulatory future has arrived for the Navy through 
private litigation under the Marine Mammal Protection Act. 
Despite a volatile international situation, and a serious and 
growing submarine threat to the fleet, the Navy's Antisubmarine 
Warfare Program is being crippled through litigation.
    Last year, in the test LFA case a court cast aside the 
expert scientific judgment of the regulatory agency that LFA 
would have negligible impacts on marine mammals. It cast aside 
as well that Agency's subtle interpretations of its own 
statute, interpretations validated by the National Academy of 
Sciences. It cast aside a Navy regulatory compliance program 6 
years in the making based on $10 million worth of cutting edge 
science.
    That future is arriving very rapidly under the Endangered 
Species Act. A wave of critical habitat litigation is rapidly 
developing. In the year 2000, critical habitat had been 
designated for 120 species, just over 10 percent of all those 
listed. Recently, a single Court order remanded the Interior 
Department's critical habitat decision for 245 species in 
Hawaii alone.
    One target of this wave of litigation is the Clinton 
Administration policy allowing our natural resource management 
plans to serve in lieu of critical habitat. If successful, this 
challenge would fundamentally alter the way the Interior 
Department regulates our operational ranges and the way we test 
and train there.
    In April, the Interior Department is required by Court 
order to revisit the Pendleton and Miramar non-designation 
decisions that have exempted from critical habitat those two 
critical West Coast military installations. The Interior 
Department has testified repeatedly that it believes that 
developing case law in this area has jeopardized their ability 
to continue to maintain that exemption.
    This regulatory future is also plainly visible in ligation 
seeking to reverse long-standing State and Federal regulatory 
policies under the Superfund and solid waste management 
statutes and to compel unprecedented and far more intrusive 
regulation of our test and training activities.
    The Department of Defense also faces a similar threat to 
readiness under the Clean Air Act. Although our Clean Air Act 
proposal is not been driven by litigation, it is similar to the 
rest of our package in that it would give States and EPA some 
additional flexibility to pursue their existing preference to 
accommodate military readiness activities wherever possible.
    Through luck and hard work, State regulators in the past 
have largely been able to accommodate the basing of new weapons 
systems or the redeployment of existing systems. Our proposal 
would make it easier for them to do so. The alternative could 
be significant delay in basing critical new weapons systems.
    The proposals we offer have minor environmental impacts, 
but significant benefits to readiness. They largely codify 
existing bipartisan policies that have served both readiness 
and the environment very well.
    I would be pleased to take your questions.
    I would ask that my full statement be placed in the record 
in its entirety.
    Senator Inhofe. Without objection, so ordered.
    Thank you, Mr. Cohen.
    Mr. Suarez?

  STATEMENT OF HON. J.P. SUAREZ, ASSISTANT ADMINISTRATOR FOR 
ENFORCEMENT AND COMPLIANCE ASSURANCE, ENVIRONMENTAL PROTECTION 
                             AGENCY

    Mr. Suarez. Thank you, Mr. Chairman, and members of the 
committee. Good morning. I appreciate the opportunity to speak 
with you today on behalf of the U.S. Environmental Protection 
Agency's position on the proposed National Defense 
Authorization Act for fiscal year 2004.
    We believe that the Administration's proposal appropriately 
addresses two equally compelling national priorities--military 
readiness and the protection of human health and the 
environment. These priorities can both be achieved at the same 
time. We appreciate the Defense Department's willingness to 
work with us to craft the proposals before you today.
    As you know, the Administration's proposal would make 
changes to certain pollution control laws that EPA administers 
and to laws affecting wildlife protection and habitat. I will 
limit my remarks today to those laws under EPA's jurisdiction.
    EPA and the Department of Defense share an important 
mission, especially obviously in the wake of 9/11--the 
protection of both our national and environmental security. One 
holds little value without the other. We believe neither 
mission should be compromised at the other's expense.
    Toward that end, EPA and DOD have for years worked 
cooperatively toward achieving these goals with tangible 
benefits to the American people. The bill before this committee 
is the result of just such collaboration. I would like to 
highlight for the committee three of the proposed statutory 
changes that have been developed to facilitate our twin 
missions vital to the health and security of our Nation.
    First, EPA recognizes that military readiness depends on 
DOD's ability to move assets and materiel around the Nation, 
perhaps on short notice. Such large-scale movements of people 
and machines may have impacts on State Implementation Plans, or 
SIPs, for air quality. Accordingly, EPA and DOD developed 
proposed changes to the Clean Air Act to allow the Armed Forces 
to engage in such activities while working toward ensuring that 
its actions are consistent with the plan's air quality 
standards.
    Under the Administration's proposal, the military would 
still be obligated to quantify and report its impacts on air 
quality prior to initiating the readiness activity, would be 
given 3 years to comply, but then must come into compliance 
with the State's implementation plan.
    Second, the Administration's bill proposes two changes to 
the Resource Conservation and Recovery Act, or RCRA, the 
Nation's solid and hazardous waste law. The bill contains 
language that would change the statutory definitions of solid 
waste under RCRA to provide flexibility for DOD regarding the 
firing of munitions on operational ranges, while clarifying 
that the definitional changes are not applicable once the range 
ceases to be operational.
    This change is compatible with existing EPA policy and the 
Military Munitions Rule that has defined EPA's oversight of 
fired munitions at operational ranges since 1997. The bill 
specifically maintains the ability of EPA, the States, and 
citizens to take actions against the Government in the event 
that munitions or their constituents migrate off-range and may 
pose an imminent and substantial endangerment to human health 
or the environment.
    The Agencies also have worked together to craft a clear 
common-sense definition of ``range.'' Under the revised 
definitions of ``solid waste'' and ``range,'' the military will 
have the statutory assurance that EPA will not intervene in the 
firing of or training with munitions, while the public may rest 
secure in the knowledge that the EPA, States, and citizens will 
have the authority to take actions against the Department if 
munitions pose a threat off-range or after a range is closed.
    Third, the Administration's bill proposes analogous changes 
to the Comprehensive Environmental Response, Compensation, and 
Liability Act, or CERCLA, also known as the Nation's Superfund 
law. It would exempt from the definition of ``release'' under 
CERCLA, explosives and munitions deposited during normal use 
while on an operational range.
    It is important to note that EPA would retain authority to 
take action to abate an imminent and substantial endangerment 
to public health and the environment due to deposit or presence 
of explosives and munitions on an operational range while still 
affording the military the flexibility they need in handling 
the munitions in these ranges.
    Indeed, as Mr. Cohen just noted, this Administration has 
recently developed language clarifying that the proposed 
changes to the solid waste and Superfund laws apply only to 
operational ranges under the jurisdiction and control of 
military services and not to contractors and other third 
parties.
    In conclusion, we believe that the Administration's 
proposed bill accommodates the concerns of the military, the 
EPA, and the public. I want to assure this committee that both 
Administrator Whitman and I support this bill and believe that 
the bill's provisions will ensure that America's armed forces 
are able to train, to carry out their national security 
mission, to train the way they fight, and that the Agency is 
able to carry out its mission of protecting human health and 
the environment.
    That concludes my prepared remarks. I would be happy to 
answer any questions.
    I would ask that my full statement be placed in the record 
in its entirety.
    Senator Inhofe. Without objection, so ordered.
    Thank you, Mr. Suarez.
    Secretary Manson?

  STATEMENT OF HON. H. CRAIG MANSON, ASSISTANT SECRETARY FOR 
   FISH, WILDLIFE AND PARKS, U.S. DEPARTMENT OF THE INTERIOR

    Mr. Manson. Good morning, Mr. Chairman. I am Craig Manson, 
the Assistant Secretary for Fish, Wildlife and Parks in the 
Department of the Interior. I have responsibility for the 
United States Fish and Wildlife Service and the National Parks 
Service. I appreciate the opportunity to testify this morning 
on this important subject.
    Secretary Norton 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 for 
more than 30 years in the active duty Air Force, the Air Force 
Reserve, and the Air National Guard. Many times I have been 
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. 
That opinion is shared by Secretary Norton and throughout the 
Department of the Interior.
    Interior's bureaus have actively and successfully sought to 
work with the Department of Defense to meet the requirements of 
various natural resources laws without impacting the military's 
ability to train. My testimony this morning focuses on the 
proposal concerning the substitution of integrated natural 
resource management plans, or INRMPs, on military installations 
for critical habitat under the Endangered Species Act.
    At least 300 listed species occur on the Department of 
Defense managed 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 military lands.
    The Endangered Species Act requires the Fish and Wildlife 
Service to designate critical habitat for listed species if it 
is prudent and determinable. Critical habitat designations on 
Department of Defense lands can impact the ability of the 
military to prepare and train by imposing additional 
requirements for consultation under Section 7 of the ESA.
    On the other hand, as the then-Director of the U.S. Fish 
and Wildlife Service, testified before this committee on May 
27, 1999, ``critical habitat provides little additional 
protection to most listed species, while it consumes 
significant amounts of scare conservation resources.''
    The Director suggested that instead of the current process 
for designating critical habitat, and open collaborative 
environment at the appropriate time would be a more efficient 
way to conserve and recover species. Integrated Natural 
Resources Management Plans, known as INRMPs and required under 
the Sikes Act Improvement Act of 1997 serve as an effective 
vehicle through which the Department of Defense can 
comprehensive plan for conservation of fish and wildlife 
species. This planning can address important needs for 
endangered and other species of fish and wildlife, including 
the protection of habitat.
    The statute requires collaborative engagement and mutual 
agreement of the Fish and Wildlife Service, the military 
installation commanders, and the relevant State natural 
resources agency. The Department of the Interior's policy is to 
exclude military facilities from critical habitat designations 
if the facility has an approved INRMP which addresses the 
species in question. We support the codification of this policy 
and the range, readiness and preservative initiation.
    The INRMP process appears to provide more true conservation 
benefits to species because it provides for real management 
action. For example, critical habitat proposed for the purple 
amole, a plant in California, included significant portions of 
Camp Roberts and Fort Hunter Liggett. We excluded Camp Roberts 
from the final designation because it had completed an INRMP 
which addressed the conservation of this plant. Working with 
the Department of Defense, we were also able to remove Fort 
Hunter Liggett, although the INRMP to address the protection of 
the plant was not yet approved.
    The benefits of these military readiness activities to the 
national defense exceeded the benefit of including the area and 
the designation, and we, therefore, excluded the property. 
However, a recent court case in the District of Arizona has 
clouded part of our policy to exclude military lands from 
critical habitat based on an INRMP.
    The policy is based, in part, on a decision that military 
lands within approved INRMP and other types of lands with 
approved management policies do not require special management 
consideration because they already have adequate management and 
thus, by definition will not be considered critical habitat. 
The U.S. District Court in Arizona has ruled that this 
interpretation is wrong and that, in fact, lands require 
special management and necessitates their inclusion and not 
exclusion from critical habitat.
    In closing, Mr. Chairman, I believe that the Interior 
Department and the Defense Department have acted cooperatively 
to implement natural resources laws passed by Congress, and 
will continue to explore with our DOD colleagues creative 
solutions to balance conservation mandates with military 
readiness.
    That concludes my testimony. I would be glad to answer any 
questions.
    I would ask that my full statement be placed in the record 
in its entirety.
    Senator Inhofe. Without objection, so ordered.
    Thank you, Mr. Secretary.
    I would ask others to adhere to the 5-minute rule on 
questions. We do have another panel coming up and we do not 
have a lot of time.
    Let me start off, Mr. Cohen, if I could. You are the expert 
in this area. As was the case yesterday--and I appreciate your 
being a witness yesterday at our rather lengthy hearing--it 
kept coming up about the national security exemption. I would 
like you to walk us through the process of getting a national 
security exemption. Who does it? What time period does it 
extend?
    Mr. Cohen. Yes, sir. Thank you very much. I would like to 
focus it, if I could, on the statutes that the Department is 
proposing to amend. First, the Marine Mammal Protection Act 
does not have any national security exemption.
    The Clean Air Act, RCRA, and CERCLA all possess national 
security exemptions. The RCRA and CERCLA exemptions exist by 
virtue of Presidential action--the President can act under RCRA 
or CERCLA in the interest of national security or national 
defense to exempt on a site-by-site basis, specific DOD 
facilities--again in the interest of national security.
    Under the Clean Air Act, in addition to that site specific 
mandate, he can exempt categories of equipment. The exemptions 
under all three Acts, I believe, are renewable 1-year 
exemptions.
    An example of how that is used, actually, is the annual 
exemption that the President has given for the last several 
years to a classified site to prevent the disclosure of 
classified information under RCRA. It involves a fairly lengthy 
administrative process whereby the military service and the 
department involved reviews the exemption up to the service 
Secretary, then to the Secretary's office at DOD, and then to 
the White House where it is further reviewed and issued.
    Senator Inhofe. That is very helpful. So it has to be done 
by the President and it is good for 1 year.
    Mr. Cohen. And it is site specific, sir.
    Senator Inhofe. And site specific.
    I would like to mention, and I am sure you would agree with 
this, that administrative actions is the other thing they are 
talking about, the tool that can be used. However, in using 
this tool it happens after the problem is already there. It 
says, ``The Secretary shall submit a written notification of 
action and each significant adverse effect to the head of the 
executive agency, taking or proposing to take, administrative 
action. At the same time the Secretary shall transmit a copy.''
    It goes on and on. It is quite a lengthy process. It comes 
after the fact. That is the fact I would like to get out.
    Mr. Cohen. Yes, sir. Also on that one, 10 U.S.C 20-14 is 
often cited as the sweeping across cutting ability to get 
exemptions from anything. I should mention that not does it 
have to take place at the highest level of every agency, but it 
would afford us no relief at all in any of the five statutes 
that we are seeking to amend. In each of those five statutes, 
it is not the agency's interpretation or action that concerns 
or concerns us, it is ligation against which 20-14 provides us 
no defense at all.
    Senator Inhofe. Exactly. Very good. Thank you, Mr. Cohen.
    Mr. Suarez, it has been referred to several years of 
statements made by the Administrator. I know what your feelings 
are. I read from your testimony yesterday that the 
Administration's bill appropriately takes account of the 
interest of the American people in military readiness and 
environmental protection.

    What would be your interpretation? What is the position of 
the Administrator, as you understand her position?
    Mr. Suarez. Mr. Chairman, I can tell this committee that 
Governor Whitman fully supports this bill. She believes that 
having worked with DOD, we have struck an appropriate balance 
that allows the military the flexibility that they need while 
at the same time preserving sufficient authorities for EPA to 
take action to protect public health and the environment.
    Senator Inhofe. And I think probably we were saying that 
those areas that are not within the jurisdiction of the EPA, 
she would not have been referring to those areas because that 
is not within her jurisdiction. Here I refer to the Marine 
Mammal Protection Act and the Endangered Species Act.
    Mr. Suarez. That is exactly right, Mr. Chairman.
    Senator Inhofe. I am concerned about the environment. My 
wife and I have 19 kids and grandkids. We are very much 
concerned. I would just like to know according to the EPA will 
human health and the environment be fully protected under these 
legislative proposals?
    Mr. Suarez. Mr. Chairman, we believe that we retain 
adequate authority under these proposals to protect human 
health and the environment. I note that we continue to retain 
authority under CERCLA to address imminent and substantial 
endangerments under the Safe Drinking Water Act. There is no 
suggestion that any authority under the Safe Drinking Water Act 
is to be changed under these proposals. Off an operational 
range we continue to have authority. We are comfortable with 
these proposals, Mr. Chairman.
    Senator Inhofe. Thank you, Mr. Suarez.
    Secretary Manson, as a decorated National Guard Reservist 
and one who is familiar with all aspects of this, my colleague, 
Senator Bond, refers to it as the Subcommittee on Fish, Hunting 
and Drinking. He has talked about the critical habitat 
designations.
    I think it would be helpful for us for you to share with us 
what the Fish and Wildlife Service's attitudes are toward the 
critical habitat designations?
    Mr. Manson. The Fish and Wildlife Service has long taken 
the position that critical habitat designations add very little 
conservation benefit for species. That was the position taken 
in the previous Administration and adopted in our 
Administration as well.
    Senator Inhofe. Thank you, Mr. Secretary.
    My time has expired, but in the next round I am going to be 
asking you if there is anything you want to elaborate on 
regarding imprints. That is a very significant subject.
    We are going to on the early bird rule. Senator Wyden?
    Senator Wyden. Thank you very much, Mr. Chairman.
    Mr. Cohen, I was very troubled by your comment that your 
Agency is engaged in a defensive action. It looks to me like an 
offensive preemptive attack on the Nation's environmental laws. 
I want to tell you exactly why I feel that way. I looked at 
your testimony very carefully.
    You essentially say in the testimony, ``OK, there really 
isn't a problem with the environmental laws affecting readiness 
right now.'' But then you go on to say, ``If litigants in the 
pending cases end up being successful, then at some point down 
the road military readiness could be affected. That is why we 
need to engage in preemptive efforts to change the 
environmental laws now.''
    I want to give you an opportunity to comment on it. That is 
the way it really looks to this member in the Senate.
    Mr. Cohen. Thank you, sir.
    The reason why we believe that we are trying to preserve 
the regulatory status quo, which was the source of my comment 
that we were sort on the defensive in this, is that we believe 
we are largely codifying the existing regulatory practices and 
policies, both of the States and of our Federal regulators.
    Senator Wyden. Are you not concerned about the possibility 
of future cases? You are not pointing to cases today; are you?
    Mr. Cohen. Yes, sir. Actually in a number of instances we 
are. There is Endangered Species Act litigation, for example, 
currently pending pursuant to which the Fish and Wildlife 
Service is going to have to again in just a few days make a 
decision whether to designate large parts of Camp Pendleton and 
Miramar as critical habitat. That is ongoing litigation.
    Senator Wyden. But it has not come down against the 
Department as of today.
    Mr. Cohen. Yes, sir.
    Senator Wyden. Mr. Chairman and colleagues, that is the 
bottom line here. The decisions have not come down against the 
Department and military readiness as of now. But we are 
supposed to engage in preemptive action against something that 
may happen in the future.
    What if the decisions do not go against you in the future?
    Mr. Cohen. Sir, there are a number of reasons that we think 
that there is a wave of pending litigation in virtually all of 
these areas which does present a threat. Reasonable people can 
differ on this in terms of timing. Philosophically, the 
Department and the Administration think it is unjustified or 
unwise to actually wait until there is a train wreck in court 
and critical national security activities are jeopardizes.
    Just to give one example, sir. Some very critical training 
activities which were taking place at an island in the Western 
Pacific, Farallon de Medinilla, directly in support of 
Operation Enduring Freedom, were enjoined last year under the 
Migratory Bird Treaty Act. Congress very responsibly and 
quickly took action to revise the statute. But the injunction 
had already been in place for some time.
    It is our believe that it is better public policy if we can 
see these threats clearly emerging and if they are systemic to 
try to address them proactively.
    Senator Wyden. I think--and extra points for candor, Mr. 
Cohen--you have defined what this issue is all about. You are 
concerned about something that may happen in the future. So 
something ought to be done in a preemptive way now when I, and 
several of my colleagues, say, ``We have had these laws on the 
books for a long time for a number of conflicts. We do not have 
the decisions that undermine readiness as of now.''
    I think it is very unfortunate that we are talking about 
preemptive assault on the Nation's environmental laws when 
there is no body of evidence indicating that the problems have 
been seen under existing kinds of decisions. The future rulings 
may not go against you, but you have defined the issue at least 
clearly for me.
    I have one last question, if I might. The Umatilla Chemical 
Weapons Depot in my State is currently in the process of 
destroying stock piles of nerve gas and other weapons. That its 
sole function there. No combat or military readiness is going 
on there. There is considerable interest in my part of the 
world given the current mission of the Depot that it should not 
qualify as a type of range where they would be an exemption 
from environmental laws.
    I would like to have your thoughts this morning on that.
    Mr. Cohen. Yes, sir. The chemical incineration activities 
that you are describing, the chemical destruction activities at 
Umatilla would not be covered. They would not qualify as a 
military readiness activity.
    Senator Wyden. I am sorry; what did you say?
    Mr. Cohen. The chemical demilitarization activities at 
those facilities would not qualify as a military readiness 
activity in the definition that we have provided. So it would 
not be affected by our legislation.
    Senator Wyden. My constituents will be pleased.
    I look forward to working with you. My door is open to you 
when there is evidence of a problem But to say we are going to 
toss all these environmental laws aside on the basis of what 
you characterize as a potential wave of problems does not make 
sense.
    Thank you, Mr. Chairman.
    Senator Inhofe. Thank you, Senator Wyden.
    I inadvertently overlooked our ranking Democratic member, 
Senator Jeffords.
    Senator Jeffords. Having served on a destroyer and being 
the gunnery officer, I am well aware of the necessity and need 
for the ability of the military to practice. However, I do have 
concerns for what we are talking about today.
    Mr. Cohen, I appreciate your sharing with my staff 
suggested changes to the definition of ``operational ranges'' 
to address some concerns regarding inadvertently exempting 
contractors.
    However, as I read the revised definition, ``An inactive 
range last used during World War I could be exempt from cleanup 
as long as DOD still considers the area to be a range.'' Is 
that correct?
    Mr. Cohen. Sir, actually that is only one part of a three-
part test. The test for when a range is inactive as opposed to 
closed is that it must be under the jurisdiction, custody, or 
control of a military department. No. 2, it cannot have been 
put to an inconsistent use--to a use that is inconsistent with 
range activities. We could not have built a base hospital on 
it. It still has to be considered by the Secretary of the 
military department to be a range.
    So there are actually three tests; two of which are 
objective tests rather than any subjective tests.
    Senator Jeffords. So the answer is that that one that has 
not been used since World War I is still a range?
    Mr. Cohen. I am sorry. I did not hear you, sir.
    Senator Jeffords. I referred to the range from World War I 
that has not been used since then. That is still a range under 
your definition?
    Mr. Cohen. Sir, if it is still under the control, custody, 
and jurisdiction of the military department, if it has not been 
put to a use that precludes its future use as a range, and if 
the Secretary in question still considered it to be a viable 
potential active range, then it would be a range, sir. An 
inactive range. The answer to your question would be yes, if 
those three conditions were met.
    Senator Jeffords. If you had not built a hospital, then it 
is still a range?
    Mr. Cohen. If we had built a hospital, sir, if we had put 
it to an inconsistent use, then it could not be an inactive 
range by definition. So it would fail to meet the three-part 
test. That test is in existing law. It is in the Military 
Munitions Rule.
    Senator Jeffords. Thank you.
    Mr. Manson, the U.S. Fish and Wildlife Service's recent 
report to Congress on the Sikes Act and INRMP's states that, 
``The Fish and Wildlife Service has established effective 
partnerships with the military services to facilitate 
collaborative national resource management on installations 
while the military continues to successfully carry out its 
missions.''
    In your testimony, you have given an example of how the 
Service has worked with DOD at Fort Hunter Liggett and excluded 
an area from the critical habitat definition because the 
Service determined that the adverse impacts to national defense 
exceeded the benefits that would have resulted from designating 
the areas as critical habitat.
    This seems to be a perfect example of how current law is 
working with existing authority to accommodate both military 
preparedness and species protection without requiring an 
exemption.
    If current law provides for exclusions from critical 
habitat designation, why is this exemption necessary?
    Mr. Manson. Well, Senator, there are a couple of different 
aspects to this. We do have the ability on a case-by-case basis 
to weigh benefits of exclusion versus the benefits of 
inclusion. We have long had a policy, however, of excluding 
lands where there is an approved INRMP. It seems to me that 
that is a more prudent policy because we know where there is an 
approved INRMP that there has been collaboration between the 
Fish and Wildlife Service, the military, and the State agency.
    It seems prudent, in my view, to codify that policy so that 
it is clear, unambiguous, and not subject to attacks through 
litigation.
    Senator Jeffords. Mr. Suarez, the bill would exempt DOD 
ranges from the information gathering and access requirements 
of the Superfund and hazardous waste laws. While preserving 
EPA's superfund emergency authority, I am concern that the bill 
would significantly impair EPA's ability to uncover information 
about emergencies until the toxic waste leeches off-range. Am I 
appropriately concerned?
    Mr. Suarez. EPA still has a number of authorities where we 
could collect information. As I indicated, there are no changes 
under the Safe Drinking Water Act. We retain the ability to 
gather information if, in fact, in the example that you 
referenced in your opening remarks, there were a possibility of 
a contaminant in the sole source aquifer, EPA would retain the 
ability to gather information to determine if it poses a threat 
to human health and the environment.
    Senator Jeffords. Thank you.
    Senator Inhofe. Thank you, Senator Jeffords.
    Senator Boxer?
    Senator Boxer. Thank you. I am going to be very straight 
from the shoulder. We do not have a problem here. We have the 
ability of any President of either party to say there is a 
national security problem and these acts are waived except for 
Marine Mammal. By the way, I am on the Commerce Committee that 
has jurisdiction over that. I think we can see that the dolphin 
are making a contribution to national security. So maybe it is 
good to protect them.
    But the bottom line is this. We do not have a problem. For 
me to see the Environmental Protection Agency and the Fish and 
Wildlife Service--who are charged with protecting the 
environment--sitting here at this table and supporting this, it 
is deeply distressing, but not surprising. I understand DOD. 
They want to get out of this thing. I do not agree with them. I 
think it is a bad thing. If you are really protecting the 
country you have to protect it here at home. So I think it is a 
bad thing.
    This Administration has the worse environmental record of 
any I have ever seen. It is just a perfect picture here. My 
people are really upset about this, Mr. Chairman. We have 
cities that are struggling to clean up the mess that was made 
by DOD and its contractors. What is the solution? Not paying to 
clean up the mess but giving them the bill. These are cities 
that have Republicans in control. This is not political.
    This is personal to those people. These people are going to 
get cancer because of the perchlorate. People are going to get 
sick. That is not even a question. And, how about this? Out of 
the 165 Federal facilities listed on the Superfund National 
Priorities list, 129 of these are DOD facilities. And you are 
just going to walk away? Even though Mr. Suarez says, ``Oh, the 
contractors are not off the hook.''
    I ask unanimous consent to put in the record an analysis by 
the Attorneys General of Colorado saying they are absolutely 
going to let the contractors off the hook.
    Senator Inhofe. Without objection.
    [Material to be supplied follows:]
     Senator Boxer. I just want to say that I am not stunned 
that you want to back door repeal of environmental laws. That 
is what I see you are doing from day one. But I am stunned that 
you take on the State and local people. I will just tell you a 
few things here.
    The National Association of Attorneys General passed a 
resolution in March opposing DOD's exemption from environmental 
laws; are you aware of that, Mr. Suarez, that they have done 
that?
    Mr. Suarez. I believe I am, yes.
    Senator Boxer. OK. Are you aware that the State and local 
air pollution regulators oppose DOD's exemption from 
environmental laws?
    Mr. Suarez. I am not familiar with that specific letter.
    Senator Boxer. I will send that to you.
    Mr. Suarez. Thank you, Senator.
    Senator Boxer. Are you aware that State and local water 
quality regulators oppose DOD's exemption from environmental 
laws?
    Mr. Suarez. I am not familiar with that letter, Senator.
    Senator Boxer. I will send that to you.
    The National League of Cities finds that--and I am going to 
read a letter from one of our later witnesses. Actually it is 
her testimony. She is a council member from Colorado. ``The 
ramifications of a blanket exemption for military facilities 
and activities from such laws will be serious and untenable at 
the local level.'' Have you seen her testimony?
    Mr. Suarez. I have not seen her testimony.
    Senator Boxer. I will make sure you do.
    Mr. Suarez. Thank you, Senator.
    Senator Boxer. I would ask unanimous consent to enter into 
the record a statement from the California Department of Toxic 
Substance Control in opposition to these proposals.
    Senator Inhofe. Without objection.
    [Material to be supplied follows:]
     Senator Boxer. Mr. Chairman, this information details the 
effects these proposals will have on the people of my State. I 
urge you, Mr. Suarez, to read those.
    I just want to say clearly that this is a problem that does 
not exist. The GAO said that. Your own Administrator said it. 
Now she has backed off. But that is her right. She made the 
statement right here on the budget that there was one example 
that she find where national security was ever impacted.
    So here we are at the Environment Committee. I always 
considered it the greatest committee because we work so well 
together. We have made such progress on the environment over 
the years. Senator Moynihan, may he rest in peace, was one of 
those leaders. Senator John Chafee was one of those leaders. I 
won't list all the others.
    But I have to say this is a sad day that I would see the 
Environmental Protection Agency and the Fish and Wildlife 
Service--charged with the responsibility of protecting the 
environment and upholding the environmental laws--just in 
essence urging a giant loophole in our landmark environmental 
laws.
    The people in this country are going to see right through 
this. They are smart. If they do not see it right away, I am 
going to make sure that they read all of these letters that 
came in from their representatives at the water district level, 
for God's sake. What an awful thing to have--our military that 
is so great and leading us and saving the word from tyrants, 
walking away from responsibilities so important. And to have 
the EPA to support it is beyond me.
    Senator Inhofe. Thank you, Senator Boxer.
    I will take the prerogative of the chair and only comment 
as to your partisan allegations--three of the four proposals 
were put together in the Clinton Administration.
    Senator Reid?
    Senator Boxer. These are different than the Clinton 
Administration.
    Senator Reid. I have talked with Senator Ensign on several 
occasions because I wanted to alert him, and he already knew 
that we have a significant problem. Everything in the Las Vegas 
Valley drains into what we call the Las Vegas Wash. Also 
draining into the Las Vegas Wash--only about 1.5 percent of the 
total drainage--is some very bad stuff coming from the 
industrial complex we have had there since World War II--
perchlorate.
    Senator Boxer has spoken about this. Senator Feinstein has 
been extremely concerned about this. We have 46 sites now that 
are contaminated with perchlorate around the country. The one 
we are concerned about, of course, is the one in Nevada that 
drains into the Colorado River affecting the water in the whole 
Colorado Basin and affects the 35 million people that Senator 
Boxer represents.
    Senator Ensign indicated that you were going to make sure 
that any legislation that you proposed--and I say this to you, 
Mr. Cohen--took care of the 46 perchlorate sites. That is, that 
the Department of Defense would not in any way through this 
legislation try to back out of the responsibilities that they 
have in working to help cleanup these sites dealing with 
contamination by perchlorate; is that true? Is that what you 
told Senator Ensign?
    Mr. Cohen. Yes, sir; that is right.
    Senator Reid. Have you worked on that language yet? Has 
anyone worked on that?
    Mr. Cohen. Yes, sir.
    Senator Reid. Do you have it ready yet?
    Mr. Cohen. Actually, sir, it is referenced in my testimony.
    Senator Reid. This one today? I did not read that.
    Mr. Cohen. Sir, we are also happy to stand ready to work 
with this committee or the Armed Services Committee to make 
absolutely and unambiguously clear that we are not intending to 
cover closed sites, formerly used defense sites, our 
contractors, or any of our activities that take place off an 
operational range itself.
    Senator Reid. The 46 perchlorate sites are not all like the 
one we have in Henderson, Nevada. In Henderson, the perchlorate 
came as a result of work done by private contractors who were 
given the blueprint, so to speak, as to what to manufacture by 
the Defense Department. But there are other sites around the 
country that are simply defense sites where, for example, they 
were washing rocket engines and things of that nature, and the 
perchlorate ran off. That is why they have had to close a 
number of wells in California because of that contamination.
    You understand that perchlorate is a constituent of 
munitions and is still exempt from Superfund and RCRA; is that 
right?
    Mr. Cohen. Yes, sir; there is not MCL established for it.
    Senator Reid. Under the new language?
    Mr. Cohen. Our new language, sir, is only intended--and we 
think actually the language achieves this effect--to provide 
for our operational ranges while they are operational. So to 
the extent that those 46 sites are closed spaces, closed 
ranges, or are contractor sites, or result from waste 
management practices, even on an active range, they would not 
be affected at all.
    Senator Reid. OK. Mr. Cohen, what if you have a 
combination? What if you have an active defense site? You would 
also exempt that from your new proposal?
    Mr. Cohen. Like the Massachusetts Military Reservation, 
sir, that is a good example of an active site that was 
resulting from some perchlorate discharge into a sole source 
aquifer. That would still be covered because of the Safe 
Drinking Water Act authorities that are now being used by EPA 
to have us cleanup that site, to have us address this 
perchlorate contamination, are not affected at all by our 
provision.
    So what happened at the Massachusetts Military 
Reservation--all the regulatory actions that EPA took--would 
still take place. We drafted it very carefully to make sure 
that there would be no change in the outcome there.
    Senator Reid. So what you told Senator Ensign is that 
perchlorate problems around the country, that this proposed 
legislation of the Department of Defense, would have no bearing 
on any of those 46 sites?
    Mr. Cohen. I believe that is correct, sir.
    Senator Reid. That is your intention; is that true?
    Mr. Cohen. Yes, sir; in that if they are operational 
ranges, they would be addressed under the Safe Drinking Water 
Act.
    Senator Reid. You are not exempting from the Safe Drinking 
Water Act?
    Mr. Cohen. That is correct, sir.
    Senator Boxer. Could you yield for a quick question?
    Senator Reid. Of course.
    Senator Boxer. What standard will you clean it up to for 
perchlorate?
    Mr. Cohen. There is currently no promulgated MCL.
    Senator Boxer. So what standard will you clean it up? To 
the State standard?
    Mr. Cohen. There would be a site-specific finding or a 
health assessment or risk assessment about the site. To make 
that site-specific finding when you do not have a promulgated 
MCL or a draft reference dose that is final, then the local 
regulators would simply have to make the best judgment that 
they could.
    Senator Inhofe. The Senator's time has expired.
    Senator Cornyn?

 OPENING STATEMENT OF HON. JOHN CORNYN, U.S. SENATOR FROM THE 
                         STATE OF TEXAX

    Senator Cornyn. Thank you, Mr. Chairman.
    I come to this subject with the background of having been 
Attorney General of the State of Texas for 4 years. I certainly 
appreciate the importance of vigorous enforcement of our 
environmental laws, both State and Federal. I am proud of the 
fact that up until yesterday, I believe, Mr. Chairman, this 
most recent record of $35 million in civil penalties for 
violation of the Clean Water Act, that the State of Texas under 
my Administration held the previous record for civil penalties 
for violation of that Act.
    I wanted to make that clear. I certainly believe that 
vigorous enforcement is important. But at the same time I want 
to make sure that our troops are ready for the job that we have 
asked them to do. I do not believe that we have to make a 
choice between people and critters. I do not believe this is a 
zero sum game.
    I believe that we can have a military force that is 
properly trained and at the same time respect the environment 
in which we all live. I really reject the notion that some 
people care about the environment and other people do not. We 
all live and breathe and drink the water in the environment we 
have. I do consider myself very concerned about the environment 
as well.
    Mr. Cohen, perhaps you can address this. I believe this 
proposal is meant to address the complications associated with 
lengthy and expensive diversionary litigation and the desire to 
see that the law be clearly expressed so as to avoid the 
necessity or the likelihood of litigation interpreting just 
where the restrictions end and where freedom to train our 
troops begins.
    Would you react to that?
    Mr. Cohen. Thank you, sir.
    I would like to take the chance to answer that and also to 
try to put in perspective the suggestion that Congress should 
wait to act until actual adverse decisions have been handed 
down.
    It is certainly true that this ongoing litigation is a 
tremendous drain on the resources of both the regulatory 
agencies, particularly as Judge Manson can attest with respect 
to the enormous wave of critical habitat litigation that is 
cresting all over the country, and also for DOD. The fear we 
have and the concern we have is that at the end of this long, 
lengthy, and expensive process, there could be imposed 
crippling restrictions on military readiness that actually have 
relatively little or no environmental benefit to offset them.
    Our view is that it is prudent for Congress to act now and 
that the risk of Congress acting now is negligible because all 
we are asking Congress to do is codify existing regulatory 
policies and practices.
    It would be one thing if we were come to Congress and say, 
``Please radically recast the environmental laws on the off-
chance that we might lose a case in a few years.'' But it is 
quite different to say, ``We have ongoing litigation in many 
areas across the country that challenges existing law and 
challenges existing regulatory policies of the State, EPA, and 
other Federal regulators. Please stabilize this situation and 
act to clarify and confirm what the law is.''
    Senator Cornyn. I know there have been some suggestions 
that this is a purely anticipatory action on the part of the 
Administration but, in fact, as you may know, at Fort Hood in 
Texas, which has a large range of 200,000 acres over many 
decades, that large portions of Fort Hood are restricted from 
training due to a variety of encroachment factors--endangered 
species, water, air quality concerns, noise levels--all come 
into play. The net result is three-fourths of Fort Hood, some 
150,000 acres has some sort of restriction that impacts the 
ability of unit commanders to train forces there.
    I might just also point out that the GAO report, which I 
believe is already part of the record, points out on page 
eight, that in fact current restrictions on training do affect 
the preparation and the readiness of our special operations 
forces--the very same forces who just recently liberated 
Private Jessica Lynch from an Iraqi Hospital.
    But do you find, Mr. Cohen, that the military has also had 
to work around restrictions? Has that had an impact on training 
and readiness?
    Mr. Cohen. Yes, sir, I think all of our commanders who have 
testified before Congress have affirmed that the cumulative 
effect of these workarounds have been very serious. It is our 
desire to stabilize the situation now.
    Senator Cornyn. My time has expired, Mr. Chairman.
    [An article submitted for the record by Senator Cornyn 
follows:]

             From the Wall Street Journal, March 27, 2003]
                           Birds And Warriors

    With U.S. troops risking their lives in Iraq, it's a good time to 
examine rules at home that make it harder for them to prepare to fight. 
Congress could start by granting the Pentagon's urgent request to 
change environmental rules and lawsuits that limit military training.
    Consider that about 72 percent of Fort Lewis, Washington, is 
restricted to troops because it is ``critical habitat'' for the 
Northern Spotted Owl--though none live on the base. Or that 22,000 
acres of California's Fort Irwin are largely unusable because of the 
Desert Tortoise. Or that 77 percent of Fort Hood in Texas is restricted 
at some time during the year because of species and cultural artifacts.
    The Barry Goldwater range in Arizona must employ four biologists to 
chase Sonoran pronghorn antelope and close areas if any are found 
within five kilometers of a target; 30 percent of the Air Force's live 
ammunition drops have had to be moved. Environmental lawsuits would put 
57 percent of California's Camp Pendleton out of use. That's a home of 
the Marines.
    America's troops have just 25 million acres on which to train (less 
than 1 percent of the nation) but they must look after 300 threatened 
or endangered species. These restrictions are taking their toll. A 
General Accounting Office report last year said the situation ``limits 
units' ability to train as they would expect to fight . . .''
    It's not as if the military isn't trying. From 1991-2001, the 
military spent $48 billion on environmental programs, sometimes to its 
own detriment. When the loggerhead shrike was listed endangered in 
1977, San Clemente Island had 13 birds. Under the Navy's care the 
population has grown to 160 (70 in the wild), forcing the Navy in turn 
to reduce the size of two firing ranges--one by 90 percent, the other 
by 50 percent.
    The reforms sought by the Pentagon aren't large, merely common-
sense clarifications of law. Several were first proposed by none other 
than the Clinton Administration, and not one would exempt the military 
from its environmental obligations.
    For example, under the Endangered Species Act environmental groups 
can get judges to declare swathes of bases ``critical habitat'' that 
are off-limits to real training. The military merely wants more 
flexibility to design species management plans that still allow for 
human use of the land. The Marine Mammal Act penalizes anyone who 
``harasses'' marine mammals, and all the military wants is a clear, 
reasonable definition of mammal harassment. (We assume it's more than a 
lewd comment.) Other changes include clarification of clean-up at live 
bases, flexibility in the clean air statute and a fix to the Migratory 
Bird Treaty Act.
    Yet from the howls from green groups, you'd think the Pentagon had 
decided to bomb Yellowstone. The Natural Resources Defense Council and 
other enviros claim there is no military readiness problem, as if 
they're qualified to judge. Wouldn't you rather trust the generals who 
have to prevail against Republican Guard tanks?
    Michigan Democrats Carl Levin and John Dingell have fought these 
changes, with Mr. Dingell lending his familiar voice of moderation by 
calling the proposals opportunistic and therefore ``despicable.'' 
Sounds to us like he's afraid he might have to vote on them. The GOP 
Congress might as well give him the chance to favor the loggerhead 
shrike over the 7th Cavalry
    Senator Inhofe. Senator Cornyn, in my opening statement we 
talked about ``workarounds.'' Now we are working around the 
workarounds.
    [Laughter.]
    Senator Inhofe. Senator Carper, you are recognized for 5 
minutes.

 OPENING STATEMENT OF HON. THOMAS R. CARPER, U.S. SENATOR FROM 
                     THE STATE OF DELAWARE

    Senator Carper. Thank you, Mr. Chairman. To our witnesses, 
I missed your opening statements. As you know, we have a number 
of hearings going on. Senator Cornyn and I were together at 
another hearing. I slipped out of that one to come over and say 
hello to you and to hear what is on your minds and maybe to ask 
a question or two.
    Since I have not heard your testimony, I am just going to 
ask each of you to take 60 seconds and tell me what you would 
like me to take out of what each of you have to say.
    Mr. Cohen?
    Mr. Cohen. Basically the message that the Department of 
Defense would like to leave with you, sir, is that our 
legislative package is not a sweeping exemption or a sweeping 
change in the regulatory status quo. It is designed to 
stabilize and defense existing regulatory policies of all the 
States and of prior Administrations here at the Federal level 
in the face of a rising wave of litigation that is seeking to 
overturn that regulatory policy.
    Senator Carper. Mr. Suarez?
    Mr. Suarez. Thank you, Senator Carper. The message that we 
are here to say is that we support the Administration's bill 
because we believe that EPA retains the authority necessary in 
order to protect public health and the environment. The 
proposal that the military has put forward balances their need 
for readiness while at the same time preserving our ability to 
take whatever actions are necessary in order to protect the 
public on or off an operational range and their drinking water 
sources.
    We are comfortable with the changes and we support them.
    Senator Carper. Mr. Manson?
    Mr. Manson. Thank you, Senator. The position of the 
Department of the Interior is that with respect to the proposal 
that relates to critical habitat, the proposal codifies a long-
standing policy that the Department has had. It is a prudent 
policy. It is one that provides a true conservation benefit to 
species. In fact, perhaps it will provide greater conservation 
benefits than the current critical habitat process does.
    Senator Carper. Having missed the first part of this 
hearing, I am not sure what concerns have been raised by 
others. I understand in the brief exchange I had with Senator 
Boxer that some concerns have been raised.
    Let me just ask you. Just characterize for me what you 
believe some of the concerns are that are not well founded? 
What are some of the concerns that you think are more 
understandable that have been expressed here or outside of this 
hearing?
    Mr. Cohen. Speaking for DOD, our view is that a lot of the 
people who have read our legislation have taken counsel of 
their fears and think that we are actually trying to achieve 
far more than we are. They are concerned that our legislation 
is designed to exempt our closed sites, formerly used defense 
sites, our contractors, to let us out of cleanup obligations 
that we may have when a range closes. Those concerns are not 
well founded. We try to draft, in the first instance, around 
them. We are continuing to work with EPA and OMB to clarify 
that the narrow intent of what we are trying to do is to 
safeguard our operational ranges where we do test and training 
and nothing else.
    We are not trying to solve all of the world's problems or 
all of DOD's problems. We are simply focused in this package on 
our military readiness activities and not the whole scope of 
what we do and certainly not the scope of what we did at our 
closed ranges.
    I am hopeful that we will be able to address that concern 
and focus people's attention on what we are trying to do. 
Reasonable people can differ on what we are actually trying to 
do. But we do want the debate to be focused on that rather than 
onsite issues.
    The other concern that was expressed was that existing 
legislation already had waivers and exemptions that we could 
take advantage of. So why have we not used those? DOD's view is 
that those are site specific and time limited. Where we can 
show that there is a systemic problem, or would be a systemic 
problem if litigation comes out the wrong way, it is 
inappropriate for us to rely onsite specific, time limited, 
exemptions when that clearly was not Congress' intent when it 
enacted them.
    Senator Carper. Thank you. Gentlemen?
    Mr. Suarez. Senator, as I understand the concerns, it is 
that EPA will lose its ability to take action where necessary 
and will essentially exempt the military from their obligations 
to clean up under our environmental laws.
    We have worked very closely with the military and DOD in 
looking at their proposal, and indeed redrafting it on a number 
of occasions and proposing even further clarifying language to 
make clear, as Mr. Cohen has indicated, that what they are 
asking for is narrowly tailored. In fact, EPA retains the 
ability to take action where necessary to protect the threat to 
the public health and the environment.
    If there were a message that I want people to understand, 
it is that EPA is not abandoning its obligations, nor is it 
allowing DOD a free pass. Rather, we are balancing their 
interest with our need to protect the public. We think this 
bill provides that appropriate balance.
    Senator Carper. Mr. Manson?
    Mr. Manson. I think one concern that people have that is 
not well founded is that somehow habitat will be left 
unprotected and also that the Fish and Wildlife Service somehow 
will not be involved in future decisions concerning habitat.
    In fact, the process using the Integrated Natural Resources 
Management Plan is a collaborative process that requires the 
agreement and the participation of the Fish and Wildlife 
Service and an INRMP cannot be approved without the agreement 
of the Fish and Wildlife Service. The Service will continue to 
be involved. Habitat will continue to be afforded the 
protections that is necessary for the conservation of species.
    Senator Carper. My time has expired.
    Let me just say, if I could, Mr. Chairman, thinking back on 
some of the jobs that I have had in the past, I was a Naval 
flight officer and spent about 23 years of my life on active 
reserve and reserve duty. I have flown to a lot of bases around 
the world in that job.
    As former Governor and chief executive officer of our 
State, I was privileged to be the commander-in-chief for the 
Delaware Army and Air National Guard. I have some experience 
from that perspective in running our own agency that dealt with 
natural resources and environmental control. I thought a great 
deal about protecting our air, our water, and our ground.
    In closing, we as the Federal Government expect other 
people and other businesses around this country to be good 
standards of the environment. I learned a long time ago as a 
Navy ROTC midshipman that one of the hallmarks of leadership is 
leadership by example. It is just important as we go down this 
road to make sure that we not only preach a good message, but 
that we also demonstrate by our own example good leadership for 
others to follow.
    Thank you.
    Senator Inhofe. Thank you, Senator Carper.
    We are going to go to our next panel. But before you do, 
since you went a minute over, let me get one more minute in 
here.
    You can answer this, Mr. Suarez, for the record. I need to 
find out what the status of the consent agreement is on the Tar 
Creek feasibility study. Would you get back with me sometime 
today or tomorrow on that? I would appreciate it.
    [Material to be supplied follows:]
     Senator Inhofe. Last, I really felt it is necessary after 
what Senator Boxer had implied by being partisan in these 
efforts, in terms of the Marine Mammal Protection Act, the 
imprints, the RCRA, and Superfund--are these not essentially 
the same as came forth in the Clinton Administration? Do any of 
you want to respond to that?
    Mr. Cohen. Most of our Marine Mammal Protection Act 
proposal codifies policies--in one instance a 20-year-old 
policy of NOAA, and in another instance a policy that was 
arrived at during the Clinton Administration embodied in 
regulation in which they also put forward as a proposed change 
to the Marine Mammal Protection Act itself.
    We also try to add to the MMPA a national security waiver. 
We think that every environmental statute should have one. With 
respect to the ESA, what our proposal seeks to do is, as Judge 
Manson has pointed out, to codify a policy that was adopted 
during the Clinton Administration with respect to INRMPs. With 
respect to RCRA and CERCLA, what we are trying to do is 
basically codify the existing regulatory policy of EPA and the 
States, a policy that they followed not only during the Clinton 
Administration, but ever since RCRA and CERCLA were enacted.
    Senator Inhofe. Do the other of you agree with the 
statement of Mr. Cohen?
    Mr. Suarez. Mr. Chairman, I would concur as to the EPA 
Munitions Policy Rule. This proposal largely serves to codify 
that policy that has been in place since 1997.
    Mr. Manson. I concur, Mr. Chairman, as to the ESA 
provision.
    Senator Inhofe. Thank you. I appreciate your time. We 
really did not want to go this long. We will excuse you and ask 
the second panel to be seated.
    We have Frank Gaffey, President and CEO, the Center for 
Security Policy; Barry Homan, Director, Defense Infrastructure 
Issues, GAO; Dan Miller, First Assistant Attorney General, 
Natural Resources and Environment Section, Colorado Department 
of Law; Douglas Benevento, Executive Director, Colorado 
Department of Public Health and Environment; and Jamie Clark, 
Senior Vice President for Conservation Programs, National 
Wildlife Federation.
    These last two appeared before us yesterday and we 
appreciate your coming back again today. We have Ingrid 
Lindemann, Council Member, Aurora, Colorado, National League of 
cities Advisory Council; and Bonner Cohen, Senior Fellow, 
Lexington Institute.
    Mr. Benevento, I appreciate your being here. The last time 
you were sitting on this side of the table advising Senator 
Allard. It is nice to have all of you from Colorado.
    What we would like to do is to give you a full 5 minutes 
for an opening statement. I regret that we cannot do better 
than that. That is what we will have to live with.
    We will start with Frank Gaffney. Mr. Gaffney?

 STATEMENT OF FRANK J. GAFFNEY, JR., PRESIDENT AND CEO, CENTER 
                      FOR SECURITY POLICY

    Mr. Gaffney. Thank you very much, Mr. Chairman.
    I would like to preface my remarks by expressing my 
personal appreciation and I am sure that of all the men and 
women in uniform for your extraordinary leadership on issues 
bearing on their readiness for combat.
    I can think of no one who has devoted themselves more 
tirelessly and more courageously than you have to tackling 
decisions that may at some point determine whether those who 
serve have been properly trained. You do so, of course, because 
you appreciate that the difference can seem inconsequential at 
the time of the training.
    But it can prove determinative--even literally as you said 
earlier in your opening statement a matter of life and death in 
combat situations. I think you deserve particular recognition 
for your efforts to ensure that Atlantic-based U.S. forces 
continue to be able to be able to and experience as part of 
their training the closest thing to actual combat conditions: 
large-scale, live-fire combined arms exercises.
    In my judgment, it is nothing less than a travesty that 
shortsighted political considerations have been allowed to 
trump longstanding--and abiding--national security 
requirements, thereby denying the American military future use 
of its only facility in the Atlantic dedicated to this purpose: 
the Island of Vieques.
    Today as we witness American servicemen and women risking 
their lives for our safety and security, it is simply 
unfathomable that we would stint in any way on assuring theirs.
    The harrowing experience is being televised hourly from the 
battlefields of Iraq. The sorts of threats are troops are 
encountering there, in Afghanistan, and other theaters in the 
world on terror. The manifest need for adaptability in the face 
of unexpected forms of energy action all underscore the 
necessity of affording the maximum latitude to conduct 
realistic training to those charged with preparing our troops 
for war.
    As you know, Mr. Chairman, I had the privilege of working 
early in my career for the late Senator Henry M. Jackson of 
Washington State. In his capacity as Chairman of the Senate 
Energy and Resources Committee, Scoop was the principle author 
of and prime mover behind the National Environmental Protection 
Act and numerous other legislative initiatives aimed at 
protecting our habitat.
    Like you, Scoop was also committed to the national security 
of the United States. I believe he would be horrified at the 
situation that confronts our military today. As a result of 
environmental legislation, regulations, and as we have been 
talking about this morning, judicial rulings run amok. In fact, 
I am confident that were Senator Jackson still with us, he 
would be joining you in supporting at least the modest redress 
the Defense Department seeks in the form of the proposed 2003 
Readiness and Range Preservation Initiative now before the 
Congress.
    If anything, I would respectfully suggest that far more 
relief is needed than that called for in these minimalist 
proposals especially in the time of war. We should return the 
training ranges and facilities our Government and people have 
dedicated to the military's use to their fullest necessary 
utilization.
    By failing to do so we are clearly subordinating national 
security to what is under present and foreseeable circumstances 
in excessive and currently insupportable regard for the 
habitats of certain so-called endangered species.
    One of our military's finest leaders, Lieutenant General 
Edward Hanlon, Jr., of the U.S. Marine Corps, spoke for all 
those in uniform when he testified in May 2001 before the House 
Armed Services Committee in his capacity at that time as 
Commanding General of Camp Pendleton. He said:
    ``Our ability to train effectively is being slowly eroded 
by encroachment on many fronts. Urbanization, increasing 
environmental restrictions, and increasing civilian demands for 
airspace, land, sea space, and radio frequencies threaten the 
long-term, sustained use of Marine Corps bases and ranges. 
Encroachment is a serious and growing challenge. Solutions are 
possible--we must achieve the necessary and right balance 
between military readiness, encroachment pressures, and 
stewardship responsibilities.''
    Mr. Chairman, the 2003 Readiness and Range Preservation 
Initiative does strike a balance. I fear, frankly, that it 
favors too much the status quo concerning environmental 
protection at the expense of military training and the 
consequent ability of our service personnel to survive and 
prevail in combat.
    We hear a lot of talk about supporting our troops. This 
really is a test case. I hope that the Congress will, at an 
absolute minimum, provide the relief envisioned in this 
legislative initiative. I would urge the members of this 
committee, however, to give serious consideration as well to 
further steps that can materially contribute to the realism and 
utility of our military training exercises and, therefore, to 
the likelihood that our loved ones in uniform will be able to 
conduct their missions safely and successfully.
    I would be happy to answer any questions.
    I would ask that my full statement be placed in the record 
in its entirety.
    Senator Inhofe. Without objection, so ordered.
    Thank you, Mr. Gaffney.
    Mr. Holman?

STATEMENT OF BARRY W. HOLMAN, DIRECTOR, DEFENSE INFRASTRUCTURE 
               ISSUES, GENERAL ACCOUNTING OFFICE

    Mr. Holman. Thank you, Mr. Chairman. I am pleased to be 
here today to discuss the results of our work dealing with 
encroachment and its impact on military training. My testimony 
is largely built on the work we completed last year reviewing 
the effects of encroachment here in the United States. We also 
completed similar work examining training overseas.
    Today I will briefly highlight our findings regarding the 
impact of encroachment on training range capabilities, DOD's 
efforts to document the effects of encroachment on readiness 
and cost, and DOD's progress in dealing with encroachment over 
all.
    Let me say that we have identified numerous examples where 
encroachment has affected some training range capabilities 
requiring, as you mentioned earlier, workarounds or adjustments 
to training events and, in some cases, limited training. The 
potential problem with workarounds is they lack realism and can 
lead to practices and tactics that are contrary to those that 
are used in combat. Military officials, both stateside and 
abroad, have told us that encroachment at times limits the time 
that training ranges are available, the types of training that 
can be conducted, and makes it difficult to train as they 
intend to fight. Service officials believe that urban and 
population growth are primarily responsible or root causes for 
encroachment in the United States and are likely to cause more 
training range losses in the future. DOD is particularly 
affected in this regard since growth around many of its 
installations exceeds the national average.
    Despite DOD and service concerns about the effects of 
encroachment on training, we found last year that DOD readiness 
reports did not indicate the extent to which encroachment was 
adversely affecting training, readiness, and cost. In fact, at 
the time we did our review most readiness reports showed that 
units had a high state of readiness and they were largely 
silent on the issue of encroachment.
    However, let me add that we do not believe the absence of 
data in these reports concerning encroachment should be viewed 
simply as ``no data, no problem.'' Rather, it may suggest 
insufficient emphasis on fully assessing and reporting on the 
magnitude of encroachment problems and its effects. Moreover, I 
should also add that it probably also reflects the very strong 
can-do attitude of our fine military forces.
    While unit readiness reports have typically not focused on 
problems of encroachment, I want to add that we recently noted 
where DOD's quarterly readiness reports to the Congress for the 
period ending in December of last year, did indicate an 
encroachment problem affecting Air Force flight training. The 
report noted that training range encroachment combined with 
environmental concerns were placing increasing pressure on the 
Air Force's ability to provide effective and realistic 
training. It went on to state that cancellations were becoming 
a more common occurrence and may soon adversely impact the 
quality of training provided.
    We have previously reported that improvements in readiness 
reporting can and should be made to show any shortfalls in 
training. However, DOD's ability to fully assess the effects of 
encroachment on training limitations and their overall impact 
on training capabilities will be limited without more complete 
baseline data on training range requirements, capabilities, and 
limitations.
    This certainly will not replace other steps needed to deal 
with encroachment, but they are important steps to help better 
define the magnitude of encroachment problems now and provide 
trend data for future use.
    While it is widely recognized that encroachment results in 
workarounds that increase training costs, these costs are not 
easily or readily aggregated to measure their full effect. In a 
January 2003 report on training range issues, the U.S. Special 
Operations Command noted that the services lacked a reporting 
system to document the impact of encroachment or track the cost 
of workarounds to either manpower or funds. It noted the 
usefulness of such data as an indicator of the level of effort 
required to meet readiness requirements and in considering 
alternate workaround solutions.
    While DOD's plans for dealing with encroachment are still 
evolving, we noted that DOD has taken a number of actions in 
the past year to improve its management framework for dealing 
with encroachment besides the legislative proposals that are 
being discussed today.
    For example, DOD has issued a range sustainment directive 
to establish policy and assign responsibilities for sustainment 
of test and training ranges. It has also issued new guidance on 
updating and preparing Integrated Natural Resource Management 
Plans, approving coordination with the Fish and Wildlife 
Service, and with State agencies.
    The Department has also indicated plans to take a more 
proactive outreach role in working with local governments and 
other organizations. While DOD has made some progress in 
addressing individual encroachment issues, more work will be 
required to improve the data available to fully identify and 
report on the effects of encroachment and develop a 
comprehensive plan for dealing with those effects as we 
recommended in our report last year.
    As you may be aware, Mr. Chairman, Section 366 of the 
Defense Authorization Act for fiscal year 2003 requires DOD to 
issue a series of yearly reports to the Congress dealing with 
encroachment issues, beginning with this year and a requirement 
for GAO to review those reports.
    The first of those reports was required to be submitted 
along with the President's budget for fiscal year 2004. That 
report was to describe DOD's progress in developing a 
comprehensive plan to use existing authorities to address 
training constraints on the use of military lands, marine 
areas, and air space, in the United States and overseas. To 
date, those reports have not been issued.
    Mr. Chairman, that concludes my statement.
    I would ask that my full statement be placed in the record 
in its entirety.
    Senator Inhofe. Without objection, so ordered.
    Thank you, Mr. Holman.
    We are honored to have the distinguished chairman of the 
Senate Armed Services Committee and the most ranking member of 
this committee. Senator Warner, would you care to make some 
comments?
    Senator Warner. You know full well my views on this. I 
strongly support the efforts being undertaken by the chair. 
They will also be undertaken in the Armed Services Committee. 
We will hopefully address this issue in the Senate and get the 
relief that we need.
    Senator Inhofe. Thank you, Senator Warner. It is our 
intention to do that. I commented in my opening statement that 
we have had 12 hearings on this in the past. We just end up 
doing workarounds, and work around workarounds. Nothing gets 
done. It is my intention--and I am sure yours--that we get 
something done now. People should be sensitive to the problem 
that is out there and what is going on in Iraq.
    Senator Warner. Yes, they only need to see our brave young 
men and women fighting. It should have been handled a long time 
ago.
    Senator Inhofe. It should have been.
    Mr. Miller?

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

    Mr. Miller. Thank you, Mr. Chairman. I am appearing here 
today on behalf of Attorney General Ken Salazar of Colorado. I 
am also submitting a detailed written statement on behalf of 15 
Attorneys General and a resolution opposing the Department of 
Defense's proposed amendments to RCRA, CERCLA, and the Clean 
Air Act that the National Association of Attorneys General 
passed at its last meeting.
    I would ask that my full statement be placed in the record 
in its entirety.
    Senator Inhofe. Without objection, so ordered.
    Mr. Miller. I am only going to address those three statutes 
in my testimony today.
    First, we absolutely support the goal of maintaining the 
readiness of our Nation's military. There is simply no question 
that the men and women of the Armed Forces need to have all 
appropriate training to ensure that they can do their jobs.
    At the same time, we strongly support the environmental 
laws. We recognize that military training activities can 
adversely affect human health and the environment. We think, as 
others have testified today, that furthering military readiness 
and protecting the environment are compatible goals.
    The environmental laws, though, are complex and carefully 
balanced. They should not be amended unless there is a 
demonstrated problem. This is particularly true given the 
environmental impact of DOD's activities.
    I would say that in considering DOD's proposals, we need to 
answer three questions. First, are there any real conflicts 
between RCRA, CERCLA, the Clean Air Act, and military 
readiness? Second, in the event of a conflict, are the existing 
statutes sufficiently flexible to resolve it in a manner that 
preserves military readiness? Third, what exactly do these 
proposed amendments do?
    Regarding the first question, DOD has not identified a 
single instance in which any of these statutes have adversely 
impacted readiness. We are not aware of any such instances. EPA 
Administrator Christine Whitman recently testified that she was 
not aware of a single training mission anywhere in the country 
that was being held up because of these laws. Absent any 
demonstrated conflicts, we do not believe that the proposed 
amendments are necessary.
    Second, if there is a conflict, each of these three 
statutes allows the President to exempt the Department of 
Defense from the environmental requirements. DOD has never 
invoked any of these exemptions for military readiness needs.
    The exemptions allow flexibility to ensure readiness in the 
unlikely event of a conflict, while ensuring accountability in 
the vast majority of cases where there is no conflict. So 
again, in our view, there is no need for further legislative 
action.
    As to the third question, DOD has stated that its 
amendments merely codify EPA's Military Munitions Rule and that 
they apply only to operating military ranges. We disagree. All 
the Munitions Rule says is that DOD does not have to get a RCRA 
permit for using its ranges.
    The fired munitions constituents are still subject to RCRA 
cleanup authority in appropriate cases. The Munitions Rule does 
not preempt State authority under RCRA and the Munitions Rule 
does not affect EPA or State authority onsites other than 
operating ranges.
    Unlike the Munitions Rule, DOD's proposed amendments to 
RCRA and CERCLA amend jurisdictional definitions in both of 
these statutes. These definitions determine the reach of both 
EPA and State authority under these laws. So, unlike the 
Munitions Rule, Section 2019 likely preempts State, EPA, and 
RCRA authority to address an imminent and substantial 
endangerment posed by munitions from munitions constituents 
from an operational range.
    Unlike the Munitions Rule, Section 2019 also likely 
precludes States and EPA from requiring DOD to address 
munitions-related contamination at former ranges now in private 
ownership, military sites other than ranges, sites owned by 
other Federal agencies, and even private defense contractor 
sites. And, unlike the Munitions Rule, Section 2019 creates a 
broad exemption from munitions constituents such as perchlorate 
and TNT.
    What is at stake here? DOD estimates that there are 16 
million acres of land on closed ranges that are potentially 
contaminated with unexploited ordnance. Much of this land is 
privately owned, like the Lowry Bombing Range in Colorado, a 
60,000 acre site where the land use is rapidly changing from 
cattle grazing to schools and subdivisions. DOD's amendments 
would likely preempt Colorado from regulating the ongoing 
Federal cleanup of this range.
    There are also many sites around the country contaminated 
with chemical constituents of munitions or explosives. These 
constituents include perchlorate, TNT, and RDX, and may have 
toxic or potential carcinogenic effects. Perchlorate has 
contaminated public water supplies near the Massachusetts 
Military Reservation, the Abderdeen Proving Grounds in 
Maryland, and surface and groundwater at hundreds of government 
and private defense contractor sites around the country. DOD's 
amendments would impact State and EPA authority at many of 
these sites.
    The States have responsibly balanced environmental 
protection and military needs in regulating military facilities 
for decades. There is simply no basis to preempt their 
authority to protect the health of their citizens and 
environment, especially given the availability of the 
exemptions under current law.
    We would urge you to reject DOD's proposed amendments.
    Senator Inhofe. Your time has expired, Mr. Miller.
    Thank you very much.
    Mr. Benevento, thank you for coming back again today for 
more.

 STATEMENT OF DOUGLAS BENEVENTO, EXECUTIVE DIRECTOR, COLORADO 
          DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

    Mr. Benevento. Thank you, sir. My name is Doug Benevento, 
and I am the Executive Director of the Colorado Department of 
Public Health and Environment. In that position I am the 
State's top environmental regulator. I oversee our air, water, 
solid waste, and hazardous waste program as well as all of our 
public health programs.
    I believe that the suggestions of DOD can be implemented in 
a fashion that would protect the environment and ensure that 
the States have the ability they need to oversee cleanups and 
to dictate cleanups where necessary, and also ensure that the 
environment can be protected.
    Having said that, I have some drafting suggestions with 
respect to the proposal from DOD that I would like to share 
with the committee. First, with respect to RCRA, what I would 
recommend is that instead of the way DOD has drafted it, where 
they are changing current definitions, to basically write an 
exemption into RCRA for active and inactive ranges.
    As opposed to the operational range concept that DOD has 
shared, we know what an active range is and we know what an 
inactive range is. If you exempt those for the time that they 
have those definitions, I think that would not be harmful to 
the environmental and it would solve the problem that DOD has 
identified to us.
    With respect to inactive ranges, there may be some 
controversy surrounding exempting inactive ranges. My 
understanding is that these are ranges that potentially still 
could be used in the future and that the military feels that 
they need to keep available.
    Therefore, what I would recommend is that there perhaps be 
some public process on inactive ranges, where every few years 
they would have to go and look at inactive ranges to determine 
if, in fact, they are still necessary, that they remain 
inactive, they go to active, or if they should go to clean up 
status.
    I would limit the exemption with tight language so that we 
all understand what we are exempting and what we are not 
exempting.
    I would also have a provision in there for some sort of 
groundwater monitoring. My understanding is that the concerns 
that have been raised, the biggest threats are groundwater 
contamination. That contamination then migrates offsite. I 
think where appropriate--and you could really pick out the 
areas where you feel the threat of groundwater contamination is 
greatest from constitutions of munitions, there could be some 
proactive monitoring to ensure that if there was an imminent 
threat of a release offsite, that could be addressed.
    Finally, on these sites it would be helpful if DOD at all 
times would just maintain good records. It makes the cleanup of 
the site much cheaper and quicker as it goes to clean up. At 
the Lowry Bombing Range, which Mr. Miller mentioned, one of the 
issues that we had to deal with the military on was where are 
the munitions. We could not quite identify from the records 
where they were. We had to do a very expensive investigation. 
It just saves time on the back end if record keeping is good.
    With respect to CERCLA, I would just make the same comment 
to apply the CERCLA waiver to active and inactive ranges. By so 
doing, I think you could solve many of the problems.
    Finally, with respect to the Clean Air Act, this is the one 
area that I think poses the greatest difficulty for States and 
for the military to deal with. What you are dealing with are 
potential offsite releases.
    These releases can be mitigated in different ways. One 
possible consideration for the committee would be just to give 
an exemption to military readiness activities from the Clean 
Air Act, and then require offsets on nonmilitary readiness 
activities in the air shed and other DOD activities in the air 
shed.
    You could also dictate that EPA amend their natural events 
policy which does exclude certain events from being counted 
against an area for a NAAQS violation. It also requires certain 
outreach to the community and certain other mitigation 
activities.
    Obviously all of these do not absolutely solve the problem, 
I think from the environmental perspective or the State 
perspective, but I think it brings you very close.
    Thank you.
    I would ask that my full statement be placed in the record 
in its entirety.
    Senator Inhofe. Without objection, so ordered.
    Thank you.
    Senator Warner. Could I just make an observation?
    Senator Inhofe. Of course.
    Senator Warner. I think those are constructive thoughts 
that should be carefully reviewed.
    What is the procedure by which you are now operating on to 
get those views to the Department of Defense? Have you 
consulted with them?
    Mr. Benevento. Yes, sir. I have spoken both with your staff 
on the Armed Services Committee and Mr. Cohen. We have been 
trading ideas back and forth. After talking with Mr. Cohen, it 
is very clear what he is trying to accomplish. I think it can 
be accomplished with some of the thoughts I have shared with 
you.
    Their language, I think, has been misinterpreted slightly.
    Senator Warner. I think you have answered the question I 
wanted. We are here to help the Senator and myself.
    Are your views consistent with those of the Governor?
    Mr. Benevento. Yes.
    Senator Inhofe. Thank you, Senator Warner.
    Ms. Clark, I also thank you for returning today after 
yesterday's lengthy meeting.

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

    Ms. Clark. Thank you. Good morning, Mr. Chairman, and 
members of the committee. I am here this morning to testify on 
why exempting the Defense Department from key provisions of the 
Endangered Species Act would be a serious mistake.
    Prior to arriving at the National Wildlife Federation in 
2001, I served for 13 years at the U.S. Fish and Wildlife 
Service, with the last four as Director of the Agency. Before 
my time at the Service, I held a variety of positions with the 
military, including the Natural and Cultural Resources Program 
Manager for the national Guard Bureau, and the Fish and 
Wildlife Administrator for the Department of the Army.
    During my tenure at the Fish and Wildlife Service, and in 
the Defense Department, DOD routinely worked with the wildlife 
agency experts to comply with environmental laws and conserve 
imperiled wildlife while achieving military readiness.
    This approach of working through compliance issues on an 
installation-by-installation basis really does work. As DOD 
themselves have acknowledged, our Armed Forces are as prepared 
today as they have ever been in their history. Their state of 
readiness has been achieved without broad sweeping exemptions 
from environmental laws.
    The Defense Department's proposed ESA exemptions suffers 
from three basic flaws: First, DOD's exemption would eliminate 
a key tool for conserving endangered species. Their proposal 
would effectively eliminate the potential for critical habitat 
designations on defense lands, thus eliminating many of the 
consultations that have enabled DOD to look before they leap 
into potentially harmful training exercises.
    Second, an exemption from the Endangered Species Act is 
truly unnecessary. Three provisions of current law already 
provide the flexibility needed to balance military readiness 
and species conservation.
    Section 7(a)(2) of the Act provides Defense with the 
opportunity to negotiate locally tailored solutions in 
consultation with the Service's wildlife experts. Section 
4(b)(2) of the Act obliges the Services to--and they do--
exclude any area from critical habitat designation if they 
determine that the benefits of exclusion outweigh the benefits 
of inclusion in specifying the area.
    Contrary to earlier testimony, the flexibility of this 
provision has not been compromised by any court rulings. 
Section 7(j) of the Act says an exemption must be granted--and 
I emphasize must--for an activity if the Secretary of Defense 
finds an exemption is needed for reasons of national security.
    It is really unfortunate, Mr. Chairman, that this debate 
has relied so heavily on anecdotes in an attempt to show the 
Defense agencies have not been able to balance military 
readiness and conservation objectives.
    In a June 2002 report on encroachment, the GAO looked into 
many of the anecdotes. It found that Defense agencies have 
never inventoried their training resources, plan for their 
training needs, or performed any in-depth analysis of civilian 
encroachment on readiness activities.
    Without any real evidence that environmental laws are at 
fault for any presumed readiness gaps, DOD has no basis for 
requesting wholesale exemptions from this important statute.
    The third reason why enacting Defense's proposed ESA 
changes would be a huge mistake is because the current 
approach, developing solutions at the local level rather than 
relying on broad national exemptions, has really worked. 
Integrated Natural Resource Management Plans have done well and 
I do believe can provide a substitute for critical habitat on 
military lands.
    The challenge, however, is for the military and whether 
they can adhere to specific criteria that would need to be 
contained in the plan. One, this plan must contribute to the 
conservation of the species under consideration. Two, it must 
provide assurances, both financial and administrative, that the 
conservation management strategies will be implemented. Three, 
it must provide assurances, scientific assurances, adaptive 
management requirements, and biological monitoring that the 
conservation strategies will be effective.
    If all of these criteria are met, and an appropriate 
structured enforcement mechanism for INRMPs are in place, then 
I believe the Services should exercise their flexibility under 
the balancing provisions of the Act and exclude those military 
lands covered by the plan from critical habitat designation.
    There has been a lot of talk about INRMPs from a level of 
generalness. I would recommend to the committee the Department 
of Defense's Inspector General report and evaluation of 
integrated plans that was done in October 2002. I think you 
will find that there is a lot left to be worked out between the 
Services and the Defense Department about the capability and 
quality of the plans to date.
    With the ongoing war in Iraq and continuing threats of 
terrorism, no one can dismiss the importance of military 
readiness. However, there is no justification for Defense to 
retreat from their environmental stewardship commitments at 
home. I know there are concerns and even conflicts between 
training needs and sustainable natural resources conservation.
    But Congress should pay close attention to those who are 
crafting solutions at the installation level, and reject the 
Pentagon's efforts to undermine these solutions with broad-
based exemptions to the Endangered Species Act.
    Thank you, Mr. Chairman.
    I would ask that my full statement be placed in the record 
in its entirety.
    Senator Inhofe. Without objection, so ordered.
    Thank you, Ms. Clark.
    Ms. Lindemann?

    STATEMENT OF INGRID LINDEMANN, COUNCIL MEMBER, AURORA, 
      COLORADO, NATIONAL LEAGUE OF CITIES ADVISORY COUNCIL

    Ms. Lindemann. Mr. Chairman. I am a Council Member in 
Aurora, Colorado. A couple of people have mentioned the Lowry 
Bombing Range. I wanted to tell you that my drinking water 
reservoir is surrounded by the Lowry Bombing Range. So we do 
have some specific concerns.
    I also represent the National League of Cities. I am the 
Advisory Council representative to the Energy, Environment, and 
Natural Resources Committee for NLC. I have also spent most of 
my adult life as a military spouse.
    I am here today to testify on behalf of NLC and the 18,000 
cities and towns across America. We are speaking to the Defense 
Department's proposed changes in the environmental laws.
    The concerns of the Nation's cities and towns are the 
proposed exemptions from RCRA, Superfund, and the Clean Air 
Act. I would like to make clear at the outset that the 
municipal elected officials who comprise the National League of 
Cities, support effective testing and training of the men and 
women who serve in our Armed Forces, to ensure that they are 
the best equipped and best prepared in the world. But we do not 
believe it is necessary or appropriate to accomplish this goal 
at the expense of nonmilitary citizens.
    NLC's National Municipal Policy calls on Federal facilities 
to comply with Federal and State environmental and health and 
safety laws, and to be subject to the enforcement provisions of 
such statutes. The ramifications of a blanket exemption for 
military facilities and activities from such laws will be 
serious and untenable at the local government level.
    Again, I can speak from local experience. We have two 
closed military installations within our city--the former Lowry 
Air Force Base, and Fitzsimmons Army Medical Center. We have 
dealt with these issues. In fact, we still have some land on 
the former Lowry Air Force Base that is not yet cleaned. So I 
understand the issues.
    The Clean Air Act imposes health based air quality 
standards. While there may be no legal requirements in the 
amendments to either the State or local governments to seek 
offsets to the air pollution caused by military activities, the 
community is still going to be stuck. The air problems are 
there and the health consequences for our people will be there. 
The exemptions alone do not do us any good.
    The exemptions from RCRA are equally problematical in part 
of their impact on the appropriate disposal and/or cleanup of 
hazardous waste. But equally important is the potential impact 
on sources of drinking water. As I already mentioned to me, my 
community is really affected.
    It is estimated that there are 16 million acres of 
transferred ranges around the country which are potentially 
contaminated by unexploded ordnance. We believe that the 
citizens and municipalities affected by such contamination 
should not have their health compromised because of an exempted 
defense installation, nor should they be required to bear the 
burden of cleanup costs or the costs of finding alternative 
sources of drinking water.
    Many of the things that I was going to say have already 
been mentioned. I would just like to say that we believe the 
amendments proposed by the Defense Department are unnecessary. 
It was stated by Secretary of Defense Paul Wolfowitz that in a 
vast majority of cases we have demonstrated that we are able 
both to comply with environmental requirements and conduct 
necessary military training and testing.
    I believe that the communities have always worked with our 
military. They are very important to us both as to the defense 
of our country and economically for the communities. I think we 
should be able to work this out.
    I would ask that my full statement be placed in the record 
in its entirety.
    Senator Inhofe. Without objection, so ordered.
    Thank you, Ms. Lindemann.

 STATEMENT OF BONNER COHEN, SENIOR FELLOW, LEXINGTON INSTITUTE

    Mr. Cohen. Thank you very much, Mr. Chairman. I, too, would 
like to express my appreciation for your holding this hearing 
on a matter of great interest and a matter of great seriousness 
to all of us.
    I would ask that my full statement be placed in the record 
in its entirety.
    Senator Inhofe. Without objection, so ordered.
    Mr. Cohen. In recent years, primarily as a result of 
litigation, a host of environmental laws designed to do such 
noble things as protect endangered species and safeguard marine 
mammals, have been applied to military installations throughout 
the United States. There they have come increasingly in 
conflict with the military's role to train soldier's for their 
deadly business of battle.
    Everyone in this room knows that the military has a unique 
mission, one that requires the highest state of readiness to 
prevent the needless loss of young lives. The Department of 
Defense has come to Capitol Hill with a package of requests. It 
has done so because it has a problem that needs to be 
addressed. Failure to do so in a timely and sensible fashion 
will put the lives of those in uniform at an unnecessary risk.
    This need not be the case. By making a few narrowly focused 
but vitally important clarifications to certain environmental 
statutes, we can both protect the environment and protect the 
lives of those who are serving in uniform.
    Let me briefly mention two environmental laws that I think 
exemplify the kinds of problems we are facing. One is the 
Marine Mammal Protection Act which does not come under the 
jurisdiction of this committee but which I think underscores 
the nature of the problem.
    The Marine Mammal Protection Act's definition of harassment 
has been the source of confusion since it was included in the 
1994 amendments to the statute. The statute defines harassment 
in terms of annoyance or the potential to disturb. These are 
vague standards which have been applied inconsistently and have 
lead to increased confusion.
    Both the Clinton and the Bush Administrations have sought 
to refine that definition. But unfortunately efforts by the 
National Marine Fishery Service to solve that problem have not 
proved adequate.
    In 2001, the Navy, the National Marine Fishery Service, and 
the U.S. Fish and Wildlife Service, developed a definition of 
harassment which all three agencies could accept. In line with 
the recommendation put forward by the National Resource 
Council, it defines harassment as applied to military readiness 
activities to mean death, injury, and biological significant 
effects, including disruption of migration, feeding, breeding, 
and nursing.
    Until the law is amendment to clarify the definition of 
harassment, the Navy and the National Marine Fishery Service 
will be subject to lawsuits on the application of the term. 
Indeed, several groups have already announced their intention 
to do so.
    As a result, the Navy's low frequency active sonar, a key 
defense against quiet diesel submarines launched by such states 
as Iran, North Korea, and China, has been put on hold. Indeed 
deployment of this vitally important weapons system has been 
delayed by 6 years.
    What is the nature of the environmental problem we are 
looking at here? Worldwide all activities undertaken by the 
Department of Defense account for fewer than 10 deaths or 
injuries of marine mammals--and we are talking mostly about 
whales--annually, as compared with 4,800 deaths annually 
resulting from commercial fishing.
    I think the Pentagon's request for clarification of this 
law to apply a biologically sound definition to the word 
``harassment'' is just the kind of thing that can continue to 
provide for the defense of marine mammals and, at the same 
time, allow the United States Navy to do the job it has been 
assigned.
    We now turn briefly to the Endangered Species Act. The 
Department of Defense maintains over 25 million acres of land 
and 425 installations in the United States to harbor over 300 
endangered species. As Secretary Manson pointed out in the 
first panel, the Department of Defense is, in fact, an 
exemplary steward of lands under its jurisdiction.
    Senator Inhofe. Dr. Cohen, let me interrupt for a moment. 
Your time has expired but since I am the only one up here, I 
will begin the questions and ask you to address the Endangered 
Species Act.
    Mr. Cohen. OK, fine. I will pick up right where I left off.
    Unfortunately, it is the very superb nature of the 
stewardship of the Department of Defense that has lead to the 
problems that we are now encountering. Applying the endangered 
species provisions pertaining to critical habitat on military 
installation is leading to a wave of litigation that is 
besetting the military.
    You mentioned in your opening remarks--and you repeated 
that several times during the course of today's hearing--that 
in attempting to deal with the Endangered Species Act 
provisions the military has been forced to have workarounds. 
Workarounds, for instance, to protect the red-cockaded 
woodpecker in Camp Lejune, North Carolina, the golden-cheeked 
warbler in Fort Hood, Texas, and others.
    Workarounds in training are one thing. Workarounds in the 
real world of combat are quite something else. There are no 
workarounds in Iraq. There are no workarounds in Afghanistan. 
And there will be no workarounds in future conflicts where 
American soldiers will be engaged.
    The key problem here, Mr. Chairman, is the concept of 
critical habitat as written under the Endangered Species Act. 
The courts have held that critical habitat is intended for 
species recovery, hence the designation of critical habitat is 
a bar to any land use that diminishes the value of that land 
for species recovery. Rather than military lands being used for 
military purposes, once critical habitat has been designated, 
those lands must be used for species recovery.
    All of this, I think, Mr. Chairman, is unnecessary because 
as Secretary Manson and others have pointed out, the existing 
Integrated Natural Resource Management Plans, as required by 
the Sikes Act, provide just the kind of protection for 
endangered species that we think is appropriate.
    Indeed, in many respects I think it is far superior to what 
the Endangered Species Act does simply because it involves far 
less convoluted regulations and is far more science based and 
involves a cooperative effort between the Department of 
Defense, the U.S. Fish and Wildlife Service, and State 
environmental and wildlife agencies.
    Senator Inhofe. Dr. Cohen, we are going to have to cut it 
off right there. I appreciate your participation. We have 
questions to ask other members.
    Just for the record and so that others know, would you tell 
us what your background is in the environment and your 
credentials?
    Mr. Cohen. Yes, I am a Senior Fellow at the Lexington 
Institute in Arlington, Virginia. My Ph.D. is in international 
relations. I have written extensively over the past 20 years on 
both defense and environmental related issues. I was privileged 
to testify before this hearing last summer on this same issue.
    Senator Inhofe. Thank you very much, Dr. Cohen.
    I will start off with Mr. Gaffney.
    Mr. Gaffney, you have heard two of the witnesses state that 
there is not a problem. What do you think about that?
    Mr. Gaffney. I am frankly bemused about this, Mr. Chairman. 
It seems to me that one does not have to go very far into the 
actual military training regimen to discover that there are any 
number of problems.
    I think my colleague from the GAO has put it as delicately 
as you can. It may not be adequately documented, but it smacks 
you in the face as you are talking with the people who actually 
have to run these training facilities, whether it is the 
requirement that tracked vehicles, or other vehicles for that 
matter, stay on roads. Or that people not dig foxholes in large 
areas. Or that seals approaching the beach or other amphibious 
forces use only certain channels and only in a line.
    These are the sorts of things that are not just 
workarounds. I believe, as the Defense Department can tell you, 
can impose negative training on the forces that can be 
prejudicial to their survival in combat.
    To hear Senator Wyden, for example, talk about this thing 
as being sort of a coming problem, maybe, reminds me of the old 
story about the guy falling off a 20-story building and being 
asked at the tenth floor how he is doing. Well, if he gives you 
an honest answer, he is not doing very well. But he has not hit 
the ground yet.
    So the question here, Mr. Chairman, is: Are you going to 
apply a common sense approach to this--as I think clearly you 
are being encouraged to do from your colleague and chairman in 
the Armed Services Committee. If you are, I think it is clear 
that relief is needed. The question is: Is this the relief all 
that is required? Is this all you can get through? I leave that 
for you to judge.
    But it certainly seems to me that at a minimum this sort of 
redress is in order in light of the real world limitations we 
are seeing on the training of our troops.
    Senator Inhofe. Thank you, Mr. Gaffney.
    Let me just share this with you. Ms. Lindemann and many of 
you from your perspective cannot be aware of this because you 
have not been exposed to it. But I served as the chairman of 
the Readiness Committee of the Senate Armed Services Committee 
for a number of years. We had our hearing yesterday before that 
Subcommittee.
    I can tell you. This is a crisis. Now, if you do not 
believe that live-fire training is necessary and in your heart 
you do not think that is really necessary, then No. 1, you 
probably never served in the military service. No. 2, you have 
not watched to see the drastic effects of losing our live 
ranges. Someone mentioned Vieques. Now that is a done deal. We 
allowed a bunch of terrorists to throw us off of property that 
we owned so we can no longer train people there.
    I mentioned the Ordora Range that four Americans lost their 
lives. The accident report is very specific when it says they 
lost their lives because they had inadequate live-fire 
training. They had inert training. They other training. But 
they did not have that.
    Now, what domino effect that has on all the rest? We are 
running out of places to train. I have been to Cape Wrath. They 
are not going to let us stay there for an indefinite period of 
time. They are already talking about cutting us off. Coppa de 
Lauden in Southern Sardinia. They have the same problem there. 
Okinawa.
    That is why this is so serious. As I mentioned, this is a 
life or death situation. I have to get that out and into the 
record.
    Ms. Clark, first of all, even though I disagree with you on 
some things, I do thank you for coming back for more today. I 
would like to ask you if you have had somewhat of a Scott 
Ritter conversion. In your background you ran the Fish and 
Wildlife Service. At that time you were not a fan of the 
critical habitat designations.
    First of all, I want to attribute to you a quote--and thank 
you for doing that because it was not long ago that you made 
this quote. This contradicts some of the other comments that 
have been made.
    You said, ``The DOD has been really terrific stewards of 
the environment.'' Do you stand by that statement?
    Ms. Clark. I do.
    Senator Inhofe. During the time that you were heading up 
the Fish and Wildlife Service, I think there were 250 species 
that were designated as threatened or endangered under ESA, but 
had made critical habitat designations of only two; is that 
correct?
    Ms. Clark. When I left the Agency as Director, there were 
over 1,200 species listed as either threatened or endangered, 
Mr. Chairman. I do not remember the number, but only a fraction 
of those did have critical habitat designated. I would agree 
with that statement.
    Senator Inhofe. Yes, 9 percent of them did.
    Ms. Clark. I do not have the exact numbers. I am sure those 
facts are in the record. But I would say that a fraction of 
them had critical habitat designated.
    Senator Inhofe. All right. Is your position still the same 
today in terms of INRMPs as it was when you were in the Fish 
and Wildlife Service?
    Ms. Clark. Mr. Chairman, if I could, I would try to connect 
some dots here. There has been an incredible amount of 
discussion about what I have said or not said, or what the 
previous Administration did or did not do. So if you will 
indulge me, I will try to connect dots.
    Do I believe that Integrated Natural Resource Management 
Plans can provide the needs for conservation of listed species? 
Absolutely. But not all INRMPs are created equally. Again, I 
would really suggest that the committee look at the Inspector 
General's own report for the Defense Department that talks 
about the quality of INRMPs--the coordination between the 
Department and Defense and the Fish and Wildlife Service and 
where there is some need for tightening up.
    I signed a MOU with Defense during my time as Director that 
tried to lay out those procedures. I think a lot of the 
mechanisms are in place to work this out. I am not at all 
judging that.
    There is a lot of conversation about litigation and whether 
or not critical habitat is good or bad or what the previous 
Administration said. Is there a lot of frustration surrounding 
the designation of critical habitat? Absolutely. I worked, as 
did others in the previous Administration, with then late 
Senator Chafee when he chaired this committee, to try to find 
ways to revaluate and deal with the critical habitat issue.
    It hardly matters what you do for species if you do not 
take care of their habitat. But the issue surrounding critical 
habitat is one of timing. It is one of substance. It is one of 
resources. The Fish and Wildlife Service, under my time as 
Director and even previous to that, made a conscious decision 
to put more resources into adding species to the list--
protecting species that were on the brink of extension rather 
than doing the habitat.
    Senator Inhofe. I appreciate that. I was just getting back 
to the designations and what had happened during the time that 
you were there. I think you have answered that question.
    Ms. Clark. OK.
    Senator Inhofe. Mr. Benevento, I think we have three people 
here from Colorado. You all totally agree with each other. It 
is like this panel up here. You can love each other and 
disagree.
    Mr. Miller says there is no problem. What do you think?
    Mr. Benevento. Well, first of all, I think I would rely 
upon the military to sort of outline the scope of the problem 
for me. I think they have done that. I trust their judgment. 
But I think what is trying to happen here is that before there 
is a problem, you want to try to resolve it. I think it can be 
resolved through some careful draftings so that there are 
limited exemptions for the military to do the training they 
feel is necessary and still retain State and EPA authority for 
cleanup once they are no longer using the property.
    Senator Inhofe. Ms. Clark, I just want to ask you a 
question. You made a statement that the readiness is better 
than it has ever been before. I cannot really agree with that. 
Our troops our better. They are well trained. But some of the 
training has been sadly missing in terms of live-fire training 
and in terms of integrated training as we had on the Island of 
Vieques. There is no substitute for that. I have yet to find 
one military expert that would disagree with my statement.
    I can tell you that these young people want the very best 
training. They deserve the very best training. But right now it 
is not the very best training.
    Dr. Cohen, the Marine Mammal Protection Act is not within 
the purview of this committee but is within the purview of 
legislation that we are considering from the Senate Armed 
Services Committee. We are not sure where some of these are 
going to be marked up.
    But yesterday we had Dr. Ketten before us. Do you know who 
that is?
    Mr. Cohen. I know the name.
    Senator Inhofe. She is certainly qualified. She made the 
statement that there is there has been no proof at all of 
significant harm from the use of sonar. This has been a subject 
of one of these pieces of legislation. What do you think 
professionally about that statement?
    Mr. Cohen. Well, first of all, she is very highly qualified 
to make that judgment. It is most unfortunate for the military 
readiness of this Nation that as a result of the controversy 
surrounding the protection of the military mammals as a result 
of all this, this program, as I said earlier, has been delayed 
for 6 years. These are the kinds of things that I do not think 
we can allow to continue.
    General John Keane, Vice Chief of Staff of the United 
States Army testified on Capitol Hill recently and pointed out, 
in referring to the Endangered Act, but it equally applies to 
the Marine Mammal Protection Act, that the military is facing a 
train wreck with respect to the issues that we are talking 
about today. I think the task at hand is to decide whether we 
are going to prevent that train wreck, or whether we are going 
to wait until that train wreck happens before we do something.
    Senator Inhofe. It is a good story, yes.
    Mr. Gaffney. Mr. Chairman, may I just make a related point?
    Senator Inhofe. Yes, go ahead.
    Mr. Gaffney. Just on this question of delay, and the whole 
issue that we have touched on several times in the course of 
the hearings on litigation, there was a very, I think, 
illuminating article in the New York Times back on August 28, 
2001. I know you will remember this episode because of your 
keen interest in missile defense.
    This reported on an initiative taken by a number of 
environmental groups to seek through a lawsuit to delay the 
construction of a missile defense facility in Alaska. Senator 
Murkowski was here earlier. I know she is familiar with this 
story.
    One of the participants, a plaintiff in the lawsuit was 
Melanie Dutchen who was described in the New York Times as an 
Anchorage activist with Greenpeace who said, ``Obviously the 
hope of this litigation is that delay will lead to 
cancellation.'' She went on to say, ``That is what we always 
hope for in these suits.''
    I believe this is sort of an instructive insight into why 
the Defense Department is concerned, not only about the 
circumstances that you personally observed, in terms of 
limitations and impediments to training, but the train wreck 
that is coming. It is not something that is coming up by 
accident.
    It is coming about, I believe, by people, at least some of 
whom, have very little interest in the readiness of our 
military. While they may dress up their current view as support 
for our troops in Afghanistan and so on, it does come down, I 
think, to an agenda that is quite hostile, at least in some 
people's cases, to the military having the tools, the 
technology, and the training that it needs to have to do the 
job.
    Senator Inhofe. I know that we have 1 minute to go in this 
room. By unanimous consent we will have to vacate it at that 
time.
    I do have a couple of consent requests. One is that any 
member be able to include extraneous material, reports, and 
statements in the record, as well as our witnesses.
    [Material to be supplied follows:]
     Senator Inhofe. As you have the floor right now, Mr. 
Gaffney, are you familiar with this sonar issue? Let me just 
see if anyone on the panel disagrees of my interpretation of 
it.
    We could be put in a position right now, depending on how 
certain litigation comes out, where our ships that depend on a 
low frequency sonar to detect silent diesel engines on 
submarines which are used by Iran, by China, and many of the 
countries they trade with, where we could in reality have 5,000 
American sailors on an aircraft carrier unable to use that 
sonar to detect the presence of a diesel submarine just because 
of the harm that all the experts say do not really take place 
to the whales.
    Are any of you familiar with that particular issue?
    Mr. Gaffney. Mr. Chairman, I am somewhat familiar with it. 
I think it is important to understand that when we talk about 
the proliferation of weapons of mass destruction, one of the 
things that is rarely included in that list is precisely the 
one you are talking about--the proliferation of diesel 
submarines. They are very silent, very capable, very stealthy 
weapons that are now being proliferated by the Russians, by the 
Chinese, and by others.
    They do indeed have the ability, without improvements to 
our antisubmarine warfare capabilities like the ones you are 
talking about, to penetrate even the most sophisticated screens 
we currently have, and get at ships like our aircraft carriers 
with devastating effect.
    Senator Inhofe. Mr. Gaffney and all of our witnesses, I 
thank you very much. It is 12 o'clock o'clock. We are 
adjourned.
    [Whereupon, at 12 o'clock p.m., the committee was 
adjourned, to reconvene at the call of the chair.]
    [Additional statements submitted for the record follow:]
Statement of Benedict S. Cohen, Deputy General Counsel (Environment and 
               Installations), U.S. Department of Defense
                              introduction
    Mr. Chairman and distinguished members of this committee, I 
appreciate the opportunity to discuss with you the very important issue 
of sustaining our test and training capabilities, and the legislative 
proposal that the Administration has put forward in support of that 
objective. In these remarks I would like particularly to address some 
of the comments and criticisms offered concerning these legislative 
proposals
Addressing Encroachment
    We have only recently begun to realize that a broad array of 
encroachment pressures at our operational ranges are increasingly 
constraining our ability to conduct the testing and training that we 
must do to maintain our technological superiority and combat readiness. 
Given World events today, we know that our forces and our weaponry must 
be more diverse and flexible than ever before. Unfortunately, this 
comes at the same time that our ranges are under escalating demands to 
sustain the diverse operations required today, and that will be 
increasingly required in the future.
    This current predicament has come about as a cumulative result of a 
slow but steady process involving many factors. Because external 
pressures are increasing, the adverse impacts to readiness are growing. 
Yet future testing and training needs will only further exacerbate 
these issues, as the speed and range of our weaponry and the number of 
training scenarios increase in response to real-world situations our 
forces will face when deployed. We must therefore begin to address 
these issues in a much more comprehensive and systematic fashion and 
understand that they will not be resolved overnight, but will require a 
sustained effort.
Environmental Stewardship
    Before I address our comprehensive strategy, let me first emphasize 
our position concerning environmental stewardship. Congress has set 
aside 25 million acres of land some 1.1 percent of the total land area 
in the United States. These lands were entrusted to the Department of 
Defense (DoD) to use efficiently and to care for properly. In executing 
these responsibilities we are committed to more than just compliance 
with the applicable laws and regulations. We are committed to 
protecting, preserving, and, when required, restoring, and enhancing 
the quality of the environment.

      We are investing in pollution prevention technologies to 
minimize or reduce pollution in the first place. Cleanup is far more 
costly than prevention.
      We are managing endangered and threatened species, and 
all of our natural resources, through integrated natural resource 
planning.
      We are cleaning up contamination from past practices on 
our installations and are building a whole new program to address 
unexploded ordnance on our closed, transferring, and transferred 
ranges.
Balance
    The American people have entrusted these 25 million acres to our 
care. Yet, in many cases, these lands that were once ``in the middle of 
nowhere'' are now surrounded by homes, industrial parks, retail malls, 
and interstate highways.
    On a daily basis our installation and range managers are confronted 
with a myriad of challenges urban sprawl, noise, air quality, air 
space, frequency spectrum, endangered species, marine mammals, and 
unexploded ordnance. Incompatible development outside our fence-lines 
is changing military flight paths for approaches and take-offs to 
patterns that are not militarily realistic results that lead to 
negative training and potential harm to our pilots. With over 300 
threatened and endangered species on DoD lands, nearly every major 
military installation and range has one or more endangered species, and 
for many species, these DoD lands are often the last refuge. Critical 
habitat designations for an ever increasing number of threatened or 
endangered species limit our access to and use of thousands of acres at 
many of our training and test ranges. The long-term prognosis is for 
this problem to intensify as new species are continually added to the 
threatened and endangered list.
    Much too often these many encroachment challenges bring about 
unintended consequences to our readiness mission. This issue of 
encroachment is not going away. Nor is our responsibility to ``train as 
we fight.''
        2003 readiness and range preservation initiative (rrpi)
Overview
    DoD's primary mission is maintaining our Nation's military 
readiness, today and into the future. DoD is also fully committed to 
high-quality environmental stewardship and the protection of natural 
resources on its lands. However, expanding restrictions on training and 
test ranges are limiting realistic preparations for combat and 
therefore our ability to maintain the readiness of America's military 
forces.
    Last year, the Administration submitted to Congress an eight-
provision legislative package, the Readiness and Range Preservation 
Initiative (RRPI). Congress enacted three of those provisions as part 
of the National Defense Authorization Act for Fiscal Year 2003. Two of 
the enacted provisions allow us to cooperate more effectively with 
local and State governments, as well as private entities, to plan for 
growth surrounding our training ranges by allowing us to work toward 
preserving habitat for imperiled species and assuring development and 
land uses that are compatible with our training and testing activities 
on our installations.
    Under the third provision, Congress provided the Department a 
regulatory exemption under the Migratory Bird Treaty Act for the 
incidental taking of migratory birds during military readiness 
activities. We are grateful to Congress for these provisions, and 
especially for addressing the serious readiness concerns raised by 
recent judicial expansion of the prohibitions under the Migratory Bird 
Treaty Act. I am pleased to inform this committee that as a direct 
result of your legislation, Air Force B-1 and B-52 bombers, forward 
deployed to Anderson Air Force Base, Guam, are performing dry run 
training exercises over the Navy's Bombing Range at Farallon de 
Medinilla in the Commonwealth of the Northern Mariana Islands.
    Last year, Congress also began consideration of the other five 
elements of our Readiness and Range Preservation Initiative. These five 
proposals remain essential to range sustainment and are as important 
this year as they were last year maybe more so. The five provisions 
submitted this year reaffirm the principle that military lands, marine 
areas, and airspace exist to ensure military preparedness, while 
ensuring that the Department of Defense remains fully committed to its 
stewardship responsibilities. These five remaining provisions:

      Authorize use of Integrated Natural Resource Management 
Plans in appropriate circumstances as a substitute for critical habitat 
designation;
      Reform obsolete and unscientific elements of the Marine 
Mammal Protection Act, such as the definition of ``harassment,'' and 
add a national security exemption to that statute;
      Modestly extend the allowable time for military readiness 
activities like bed-down of new weapons systems to comply with Clean 
Air Act; and
      Limit regulation of munitions on operational ranges under 
the Comprehensive Environmental Response, Compensation, and Liability 
Act (CERCLA) and Resource Conservation and Recovery Act (RCRA), if and 
only if those munitions and their associated constituents remain there, 
and only while the range remains operational.

    Before discussing the specific elements of our proposal, I would 
like to address some overarching issues. A consistent theme in 
criticisms of our proposal is that it would bestow a sweeping or 
blanket exemption for the Defense Department from the Nation's 
environmental laws.\1\ No element of this allegation is accurate.
---------------------------------------------------------------------------
     \1\See, e.g., The New York Times, March 22, 2003 (``[T]he Defense 
Department has asked Congress to approve a program that would broadly 
exempt military bases and some operations from environmental 
regulation''); statement of Philip Clapp, President, the National 
Environmental Trust, March 5, 2003 (``The Bush Administration is 
blatantly exploiting the war to exempt military bases all over the 
country from environmental laws designed to protect public health''); 
Julie Cart, Los Angeles Times, ``Military Seeks an Exemption of its 
Own'', March 19, 2003 (``[T]he Pentagon is asking Congress to exempt 
military installations from environmental laws protecting marine 
mammals and endangered species and requiring the cleanup of potentially 
toxic weapons sites''); Eric Pianin, The Washington Post, 
``Environmental Exemptions Sought'' (``[T]he Bush Administration this 
week asked Congress to exempt the Defense Department from a broad array 
of environmental laws governing air pollution, toxic waste dumps, 
endangered species, and marine mammals''); John Stanton, Congress Daily 
AM, March 6, 2003 (``The Bush Administration's Defense Department 
reauthorization proposal includes a raft of exemptions from 
environmental laws long sought by the Pentagon, including endangered 
species protections and air quality rules''); Natural Resources Defense 
Council website, March 12, 2003 (``[t]he Department of Defense (DoD) 
seeks immunity from five fundamental Federal laws''); CQ Weekly, March 
8, 2003, ``The Pentagon's Exemption Wish List'' (``The Defense 
Department has asked Congress to exempt military activities from a 
range of environmental laws'').
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    First, our initiative would apply only to military readiness 
activities, not to closed ranges or ranges that close in the future, 
and not to ``the routine operation of installation operating support 
functions, such as administrative offices, military exchanges, 
commissaries, water treatment facilities, storage, schools, housing, 
motor pools nor the operation of industrial activities, or the 
construction or demolition of such facilities.'' Our initiative thus is 
not applicable to the Defense Department activities that have 
traditionally been of greatest concern to state and Federal regulators. 
It does address only uniquely military activities what DoD does that is 
unlike any other governmental or private activity. DoD is, and will 
remain, subject to precisely the same regulatory requirements as the 
private sector when we perform the same types of activities as the 
private sector. We seek alternative forms of regulation only for the 
things we do that have no private-sector analogue: military readiness 
activities.
    Moreover, our initiative largely affects environmental regulations 
that don't apply to the private sector or that disproportionately 
impact DoD:

      Endangered Species Act ``critical habitat'' designation 
has limited regulatory consequences on private lands, but can have 
crippling legal consequences for military bases.
      Under the Marine Mammal Protection Act, the private 
sector's Incidental Take Reduction Plans give commercial fisheries the 
flexibility to take significant numbers of marine mammal each year, but 
are unavailable to DoD whose critical defense activities are being 
halted despite far fewer marine mammal deaths or injuries a year.
      The Clean Air Act's ``conformity'' requirement applies 
only to Federal agencies, not the private sector.

    Our proposals therefore are of the same nature as the relief 
Congress afforded us last year under the Migratory Bird Treaty Act, 
which environmental groups are unable to enforce against private 
parties but, as a result of a 2000 circuit court decision were able and 
willing to enforce, in wartime, against vital military readiness 
activities of the Department of Defense.
    Nor does our initiative ``exempt'' even our readiness activities 
from the environmental laws; rather, it clarifies and confirms existing 
regulatory policies that recognize the unique nature of our activities. 
It codifies and extends EPA's existing Military Munitions Rule; 
confirms the prior Administration's policy on Integrated Natural 
Resource Management Plans and critical habitat; codifies the prior 
Administration's policy on ``harassment'' under the Marine Mammal 
Protection Act; ratifies longstanding state and Federal policy 
concerning regulation under RCRA and CERCLA of our operational ranges; 
and gives states and DoD temporary flexibility under the Clean Air Act. 
Our proposals are, again, of the same nature as the relief Congress 
provided us under the Migratory Bird Treaty Act last year, which 
codified the prior Administration's position on DoD's obligations under 
the Migratory Bird Treaty Act.
    Ironically, the alternative proposed by many of our critics 
invocation of existing statutory emergency authority would fully exempt 
DoD from the waived statutory requirements for however long the 
exemption lasted, a more far-reaching solution than the alternative 
forms of regulation we propose.
    Accordingly, our proposals are neither sweeping nor exemptive; to 
the contrary, it is our critics who urge us to rely on wholesale, 
repeated use of emergency exemptions for routine, ongoing readiness 
activities that could easily be accommodated by minor clarifications 
and changes to existing law.
Existing emergency authorities
    As noted above, many of our critics state that existing exemptions 
in the environmental laws and the consultative process in 10 U.S.C. 
2014 render the Defense Department's initiative unnecessary.
    Although existing exemptions are a valuable hedge against 
unexpected future emergencies, they cannot provide the legal basis for 
the Nation's everyday military readiness activities.

      The Marine Mammal Protection Act, like the Migratory Bird 
Treaty Act the Congress amended last year, has no national security 
exemption.
      10 U.S.C.014, which allows a delay of at most 5 days in 
regulatory actions significantly affecting military readiness, is a 
valuable insurance policy for certain circumstances, but allows 
insufficient time to resolve disputes of any complexity. The Marine 
Corps' negotiations with the Fish and Wildlife Service over excluding 
portions of Camp Pendleton from designation as critical habitat took 
months. More to the point, Section 2014 merely codifies the inherent 
ability of cabinet members to consult with each other and appeal to the 
President. Since it does not address the underlying statutes giving 
rise to the dispute, it does nothing for readiness in circumstances 
where the underlying statute itself not an agency's exercise of 
discretion is the source of the readiness problem. This is particularly 
relevant to our RRPI proposal because none of the five amendments we 
propose have been occasioned by the actions of state or Federal 
regulators. Four of the five proposed amendments (RCRA, CERCLA, MMPA, 
and ESA), like the MBTA amendment Congress passed last year, were 
occasioned by private litigants seeking to overturn Federal regulatory 
policy and compel Federal regulators to impose crippling restrictions 
on our readiness activities. The fifth, our Clean Air Act amendment, 
was proposed because DoD and EPA concluded that the Act's ``general 
conformity'' provision unnecessarily restricted the flexibility of DoD, 
state, and Federal regulators to accommodate military readiness 
activities into applicable air pollution control schemes. Section 2014, 
therefore, although useful in some circumstances, would be of no use in 
addressing the critical readiness issues that our five RRPI initiatives 
address.
      Most of the environmental statutes with emergency 
exemptions clearly envisage that they will be used in rare 
circumstances, as a last resort, and only for brief periods.
      Under these statutes, the decision to grant an exemption 
is vested in the President, under the highest possible standard: ``the 
paramount interest of the United States,'' a standard understood to 
involve exceptionally grave threats to national survival. The 
exemptions are also usually limited to renewable periods of a year (or 
in some cases as much as 3 years for certain requirements).
      The ESA's section 7(j) exemption process, which differs 
significantly from typical emergency exemptions, allows the Secretary 
of Defense to direct the Endangered Species Committee to exempt agency 
actions in the interest of national security. However, the Endangered 
Species Committee process has given rise to procedural litigation in 
the past, potentially limiting its usefulness especially in exigent 
circumstances. In addition, because it applies only to agency actions 
rather than to ranges themselves, any exemption secured by the 
Department would be of limited duration and benefit: because military 
testing and training evolve continuously, such an exemption would lose 
its usefulness over time as the nature of DoD actions on the range 
evolved.
      The exemption authorities do not work well in addressing 
those degradations in readiness that result from the cumulative, 
incremental effects of many different regulatory requirements and 
actions over time (as opposed to a single major action).
      Moreover, readiness is maintained by thousands of 
discrete test and training activities at hundreds of locations. Many of 
these are being adversely affected by environmental provisions. 
Maintaining military readiness through use of emergency exemptions 
would therefore involve issuing and renewing scores or even hundreds of 
Presidential certifications annually.
      And although a discrete activity (e.g., a particular 
carrier battle group exercise) might only rarely rise to the 
extraordinary level of a ``paramount national interest,'' it is clearly 
intolerable to allow all activities that do not individually rise to 
that level to be compromised or ended by overregulation.
      Finally, to allow continued unchecked degradation of 
readiness until an external event like Pearl Harbor or September 11 
caused the President to invoke the exemption would mean that our 
military forces would go into battle having received degraded training, 
with weapons that had received degraded testing and evaluation. Only 
the testing and training that occurred after the emergency exemption 
was granted would be fully realistic and effective.

    The Defense Department believes that 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 both 
essential readiness activities and the protection of the environment to 
continue. Congress would never tolerate a situation in which another 
activity vital to the Nation, like the practice of medicine, was only 
permitted to go forward through the repeated use of emergency 
exemptions.
    That having been said, I should make clear that the Department of 
Defense is in no way philosophically opposed to the use of national 
security waivers or exemptions where necessary. We believe that every 
environmental statute should have a well-crafted exemption, as an 
insurance policy, though we continue to hope that we will seldom be 
required to have recourse to them. In this regard, I would like to 
address the March 7, 2003 Memorandum from Deputy Secretary Wolfowitz to 
the Secretaries of the Military Departments concerning the process by 
which the Department will evaluate the use of existing exemptions under 
Federal environmental laws. As DoD has repeatedly testified, our 
efforts to address encroachment are multifaceted, and our RRPI 
legislative proposals are only one element of them. Other aspects of 
encroachment will be addressed through collaborative efforts with our 
state and Federal regulators, such as the drafting of the MBTA 
regulation mandated by Congress last year. Still others can be 
addressed through improvements in the internal policies and processes 
of the Defense Department itself.
    The Deputy Secretary's memorandum falls into this last category 
improvements in our own internal processes. It addresses a critical 
shortcoming in our ability to efficiently and thoughtfully consider the 
use of these existing exemption authorities: the absence of an 
articulated process for developing and considering proposed exemptions. 
Accordingly, Dr, Wolfowitz directed the military departments to develop 
procedures to ensure timely evaluation of the full range of relevant 
considerations. Importantly, the Deputy Secretary required that 
proposals for exemption include, among other things, specific, 
quantified evidence of the impact of the regulation proposed for 
exemption on readiness; an explanation of the reason the readiness 
activity cannot be modified, relocated, or rescheduled to avoid 
conflict with the regulation without compromising readiness; and the 
reasonably practical efforts available to mitigate the environmental 
consequences of proceeding with the training or testing activity in 
question. These substantial evidentiary requirements are hardly an 
invitation for extensive use of exemption authority, and they certainly 
belie claims that the Defense Department has issued a call to the field 
to produce candidates for exemptions. As the memorandum states:

    ``This memorandum is not intended to signal a diminished commitment 
    to the environmental programs that ensure that the natural 
    resources entrusted to our care will remain healthy and available 
    for use by future generations. Any decision to seek a statutory 
    exemption will remain a high hurdle.''

    The memorandum itself is a direct result of the response to our 
legislative initiative last year. The most frequently heard comment on 
our RRPI proposal at that time was that the Defense Department was 
seeking new legislative flexibility without having explored the 
flexibility inherent in existing law.\2\ Although our review of our 
proposals has persuaded us that existing emergency exemptions cannot 
adequately substitute for them, for the reasons I have outlined 
previously, we did take this criticism to heart. We responded not by 
seeking a specific test case to provide an easy answer to our critics, 
but rather by attempting to articulate both a process and criteria to 
guide our use of these authorities. The memorandum has been in 
development for almost a year, and was painstakingly reviewed at every 
level of the Department. I can assure that no one in the Department of 
Defense will lightly pursue or endorse the use of these extraordinary 
measures.
---------------------------------------------------------------------------
     \2\See, e.g., testimony of the Hon. Jamie Rappaport Clark before 
the Senate Environment and Public Works Committee Hearing on S. 2225 
and the Readiness and Range Preservation Initiative, July 9, 2002 
(``The environmental laws targeted by this Administration already 
contain site-specific exemption and permitting procedures that enable 
the Defense Department to achieve its readiness objectives while still 
taking the environment into account''); Jeffrey Ruch, Public Employees 
for Environmental Responsibility, C-SPAN interview, January 16, 2003 
(``Virtually all these environmental laws have national security 
exemptions These national security exemptions allow the Pentagon to 
suspend the application of environmental laws, if they can articulate a 
reason They should actually spend some time using the leeway that's 
allowed in existing law, before suspending them.''); Gordon Lubold, 
Marine Corps Times, ``Endangered Species vs. Military Training'' 
(``National security waivers are the appropriate way for the Pentagon 
to get the flexibility it needs to do training, he said [quoting 
Michael Jasny, senior policy analyst with the Natural resources Defense 
Council]'').
---------------------------------------------------------------------------
Specific Proposals
    This year's proposals do include some clarifications and 
modifications based on events since last year. Of the five, the 
Endangered Species Act (ESA) and Clean Air Act provisions are 
unchanged. Let me address the changed provisions first.
RCRA and CERCLA
    The legislation would codify and confirm the longstanding 
regulatory policy of EPA and every state concerning regulation of 
munitions use on operational ranges under RCRA and CERCLA. It would 
confirm that military munitions are subject to EPA's 1997 Military 
Munitions Rule while on range, and that cleanup of operational ranges 
is not required so long as material stays on the range. If such 
material moves off range, it still must be addressed promptly under 
existing environmental laws. Moreover, if munitions constituents cause 
an imminent and substantial endangerment on range, EPA will retain its 
current authority to address it on range under CERCLA section 106. (Our 
legislation explicitly reaffirms EPA's section 106 authority.) The 
legislation similarly does not modify the overlapping protections of 
the Safe Drinking Water Act, NEPA, and the ESA against environmentally 
harmful activities at operational military bases. The legislation has 
no effect whatsoever on DoD's cleanup obligations under RCRA or CERCLA 
at Formerly Used Defense Sites, closed ranges, ranges that close in the 
future, or waste management practices involving munitions even on 
operational ranges (such as so-called OB/OD activities).\3\
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     \3\In this context I should mention that for those areas, other 
than operational ranges, which require action, the Department has 
established, with representatives from the US Environmental Protection 
Agency, Federal Land Managers, States, and Tribes, a Munitions Response 
Committee. The primary goal of the committee is to define a 
collaborative decisionmaking process that ensures each party's rights 
and respective responsibilities are respected. This approach will allow 
coordination and, where appropriate, integration of the applicable 
statutory and administrative authorities under Federal and state 
environmental laws. This approach ensures that action will be taken 
within an agreed upon approach when operational ranges are closed in 
the future.
---------------------------------------------------------------------------
    The core of our concern is to protect against litigation the 
longstanding, uniform regulatory policy that (1) use of munitions for 
testing and training on an operational range is not a waste management 
activity or the trigger for cleanup requirements, and (2) that the 
appropriate trigger for DoD to address the environmental consequences 
of such routine test and training uses involving discharge of munitions 
is (a) when the range closes, (b) when munitions or their elements 
migrate or threaten to migrate off-range, or (c) when munitions or 
their elements create an imminent and substantial endangerment on-
range. The legislation clarifies and confirms the applicability of 
EPA's CERCLA section 106 authority to on-range threats to health or the 
environment, and likewise clarifies and confirms the applicability of 
both RCRA and CERCLA to migration of munitions constituents off-range. 
I should note, however, that in one respect, our RCRA and CERCLA 
proposals do extend rather than codify existing policy. Under existing 
law, in the event of off-range migration, DoD could potentially be 
subject to overlapping or even conflicting cleanup directives secured 
by different regulators or private parties under RCRA and CERCLA. To 
avoid this risk, our proposal integrates and rationalizes the 
applicability of the two statutes to off-range migration by providing 
that should such migration occur, DoD and EPA will have the opportunity 
to address it under CERCLA sections 104 and 106, respectively, but that 
should they fail to do so RCRA authorities will apply, including but 
not limited to citizen suits under section 7002 and EPA's emergency 
authority under section 7003. This provision is analogous to 40 C.F.R. 
266.202(d) of the Military Munitions Rule, which provides that a round 
that lands off-range is not a solid waste for purposes of RCRA 
corrective action or emergency authorities ``if [it] is promptly 
rendered safe and/or retrieved,'' but otherwise is subject to such 
authorities.
    This legislation is needed because of RCRA's broad definition of 
``solid waste,'' and because states possess broad authority to adopt 
more stringent RCRA regulations than EPA (enforceable both by the 
states and by environmental plaintiffs). EPA therefore has quite 
limited ability to afford DoD regulatory relief under RCRA. Similarly, 
the broad statutory definition of ``release'' under CERCLA may also 
limit EPA's ability to afford DoD regulatory relief. And the 
President's site-specific, annually renewable waiver (under a paramount 
national interest standard in RCRA and a national security standard in 
CERCLA) is inapt for the reasons discussed above.
    Although its environmental impacts are negligible, the effect of 
this proposal on readiness could be profound. Environmental plaintiffs 
have filed suit at Fort Richardson, Alaska, alleging violations of 
CERCLA and Alaska anti-pollution law applicable under RCRA. If 
successful, plaintiffs could potentially force remediation of the Eagle 
River Flats impact area and preclude live-fire training at the only 
mortar and artillery impact area at Fort Richardson and dramatically 
degrading readiness of the 172d Infantry Brigade, the largest infantry 
brigade in the Army. If successful, the Fort Richardson litigation 
could set a precedent fundamentally affecting military training and 
testing at virtually every test and training range.
    Our proposed amendments to RCRA and CERCLA have been slightly 
revised to make it absolutely unambiguous that they do not affect our 
cleanup obligations on closed ranges. Last year some misinterpreted our 
proposal to apply to closed ranges. We included new language to clarify 
that our proposals have no effect whatsoever on our legal obligations 
with respect to clean up of closed bases, or of bases that close in the 
future. If there is a way to make this point even clearer, we would be 
delighted to do so.\4\
---------------------------------------------------------------------------
     \4\In this regard, EPA and DoD have recently developed a further 
language change designed to underscore this point, which we would be 
happy to provide to the committee.
---------------------------------------------------------------------------
    In addition, we have revised a provision in last year's bill 
designed to ensure that our proposal did not alter EPA's existing 
protective authority in section 106 of the Superfund law. This year's 
version is therefore even clearer that, notwithstanding anything in our 
proposal, EPA retains the authority to take any action necessary to 
prevent endangerment of public health or the environment in the event 
such risk arose as a result of use of munitions on an operational 
range.
    Contractor and Off-Range Liability. Finally, I'm pleased to inform 
the committee that EPA and DoD have further changes to suggest to the 
proposal to address concerns raised by some earlier testimony and 
comments on our proposals. The language DoD submitted to Congress 
largely tracks existing exclusions in the Military Munitions Rule, 
including 40 C.F.R. 266.202(a)(1)(i) and (ii), which provide that 
munitions used for training military personnel or explosives and 
munitions emergency response specialists, or for research, development, 
test, and evaluation (RDT&E) of military munitions, are not solid waste 
for purposes of RCRA. In the existing Military Munitions Rule, these 
exclusions are not limited to munitions training or RDT&E activities 
that occur on operational ranges; in fact, they apply to such 
activities anywhere they occur, on or off such ranges. Some 
commentators have suggested that DoD, by codifying these aspects of the 
Military Munitions Rule, was seeking to exclude itself and its 
contractors from RCRA regulation for off-range activities.
    As I have mentioned, the Military Munitions Rule adopted by EPA 
under the prior Administration already fully excludes those activities 
(though not the resulting waste stream generated by them) from RCRA 
regulation; DoD supported that policy in 1997 and continues to support 
it today. Nevertheless, our Readiness and Range Preservation Initiative 
is not intended to codify all the circumstances in which munitions use 
is properly excluded from RCRA regulation. Rather, it is intended to 
address one emerging threat to our operational ranges. Accordingly, EPA 
and DoD have identified two language changes that we believe will set 
this issue to rest.
    First, in section 2019(a)(2)(A) and (B), the two provisions drawn 
from the Military Munitions Rule's exemption of munitions training and 
RDT&E, we would support the addition of the words ``on an operational 
range'' at the end of each section, thereby clarifying that these 
provisions, unlike their analogues in the Military Munitions Rule, do 
not apply to such activities outside operational ranges.\5\ Second, the 
Department submitted as a separate part of our proposed Defense 
authorization a number of general definitions, including a definition 
of ``operational range.'' In that proposed definition, it was 
explicitly stated that inactive operational ranges must be under the 
jurisdiction, custody, or control of the Department, but this was not 
explicitly stated for active operational ranges. To address any 
possible concern that as a result of this definition the Department's 
RCRA/CERCLA RRPI provision might be read to apply to ``active ranges'' 
controlled by our contractors, EPA and DOD would fully support a change 
that clarified that the requirement of DoD jurisdiction, custody, or 
control applied to both active and inactive ranges.\6\
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     \5\The new provisions would thus read: ``(2) Except as set out in 
subparagraph (1), the term `solid waste,' as used in the Solid Waste 
Disposal Act, as amended, does not include explosives, unexploded 
ordnance, munitions, munitions fragments, or constituents thereof that: 
(A) are used in training military personnel or explosives and munitions 
emergency response specialists (including training in proper 
destruction of unused propellant or other munitions) on an operational 
range; (B) are used in research, development, testing, and evaluation 
of military munitions, weapons, or weapon systems on an operational 
range;''.
     \6\The provision would thus read: ``The term `operational range' 
means a range that is under the jurisdiction, custody, or control of 
the Secretary concerned and (A) is used for range activities, or (B) is 
not currently being used for range activities, but that is still 
considered by the Secretary concerned to be a range and has not been 
put to a new use that is incompatible with range activities.''
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    DoD is pleased to have been able to address some of the concerns 
that we have heard concerning this proposal and stands ready to clarify 
our intent as necessary as Congress continues its consideration of 
these proposals.
    Perchlorate and RRPI. I would also like to take the opportunity to 
address some other concerns about these provisions that in DoD's view 
do not warrant revision of the legislation. First, some observers have 
expressed concern that our RRPI legislation could intentionally or 
unintentionally affect our financial liability or cleanup 
responsibilities with respect to perchlorate. Nothing in either RRPI or 
our defense authorization as a whole would affect our financial, 
cleanup, or operational obligations with respect to perchlorate.
      As discussed above, nothing in our legislative program 
alters the financial, cleanup, or operational responsibilities of our 
contractors, or of DoD with respect to our contractors, either 
regarding perchlorate or any other chemical.
      Nothing in our legislative program alters our financial, 
cleanup, or operational responsibilities with respect to our closed 
ranges, Formerly Used Defense Sites, or ranges that may close in the 
future, either regarding perchlorate or any other chemical.
      Nothing in our legislative program affects the Safe 
Drinking Water Act, which provides that EPA ``upon receipt of 
information that a contaminant which is present or is likely to enter a 
public water system or an underground source of drinking water may 
present an imminent and substantial endangerment to the health of 
persons may take such actions as [EPA] may deem necessary to protect 
the health of such persons,'' enforceable by civil penalties of up to 
$15,000 a day. 42 U.S.C. 300i(a). EPA used this Safe Drinking Water 
order authority to impose a cease-fire on the Massachusetts Military 
Reservation to address groundwater contamination from perchlorate, and 
nothing in our proposal would alter the events that have played out 
there. Because this Safe Drinking Water Act authority is not limited to 
CERCLA ``releases'' or off-range migration, it clearly empowers EPA to 
issue orders to address endangerment either on-range or off-range, and 
to address possible contamination before it migrates off-range.
      DoD is also committed to being proactive in addressing 
perchlorate. On November 13, 2002 DoD issued a perchlorate assessment 
policy authorizing assessment ``if there is a reasonable basis to 
suspect both a potential presence of perchlorate and a pathway on 
installation[s] where it could threaten public health.''
    Delayed Response to Spreading Contamination. Some commentators have 
expressed concern that our RRPI proposal would create a legal regime 
that barred regulators from addressing contamination until it reached 
the fence lines of our ranges, or that it at least reflects a DoD 
policy to defer any action until that point. As the above discussion 
makes clear, EPA's continuing authority under the Safe Drinking Water 
Act to prevent likely contamination clearly empowers the Agency to act 
before contamination leaves DoD ranges. In addition, nothing in our 
legislative program affects EPA's authority under Section 106 of CERCLA 
to ``issu[e] such orders as may be necessary to protect public health 
and welfare and the environment'' whenever it ``determines that there 
may be an imminent and substantial endangerment to the public health or 
welfare or the environment because of an actual or threatened release 
of a hazardous substance from a facility.'' Such orders are judicially 
enforceable. Because EPA's sweeping section 106 authority covers not 
only actual but ``threatened release,'' our proposal would therefore 
clearly enable EPA to address groundwater contamination before the 
contamination leaves DoD land which is also the objective of DoD's 
existing management policies. Section 106 would also clearly cover on-
range threats. Finally, States and citizens exercising RCRA authority 
under our RRPI RCRA provision addressing off-range migration could 
potentially use that authority to enforce on-range measures necessary 
to redress the migration where appropriate. Under RRPI, our range fence 
lines would not become Chinese walls excluding regulatory action either 
before or after off-range migration occurred. Finally, it is most 
definitely not DoD policy to defer action on groundwater contamination 
until it reaches the fence lines of our operational ranges, when it 
will be far more difficult and expensive to address.
    In addition, I should mention the recently completed DoD Directive, 
``Sustainment of Ranges and Operating Areas'', which was signed by the 
Deputy Secretary of Defense for immediate implementation on January 10, 
2003. This DoDD was developed as part of our overall comprehensive 
range sustainment strategy.
    The Deputy Secretary of Defense tasked the development of this new 
directive with this guidance:

    '' The Directive should assign responsibilities for range 
    sustainability and require the Services to issue implementing 
    directives, which specifically focus on long-term sustainability. 
    Further, it should embrace `working outside the fence' as an 
    overall management approach, and emphasize the importance of 
    partnerships with regulators, the public, and land owners.''

    In fulfilling these requirements, this Directive provides capstone-
level guidance to DoD and the Services on overall policy for test and 
training range sustainment planning, management, coordination and 
outreach. As a Capstone, it is intended to serve as a guide in the 
development or revision of other directives with applicability to range 
sustainment.
    Most importantly, the directive provides that range planning and 
management will identify range requirements for both training and 
testing, identify encroachment concerns and other inhibiting factors to 
the ranges, and develop responsive plans to address conflicts. It also 
calls for functionally integrated decisionmaking operator, 
environmental, legal and other installation/range offices or staffs. 
Coordination and outreach on sustainment issues that include off-range 
stakeholders is also directed, with a goal of promoting understanding 
of range management and use decisions and working with outside groups 
to consider their concerns and work cooperative to address shared 
concerns.
    Active vs. Inactive Ranges. Some commentators have criticized the 
application of our RCRA and CERCLA provisions to both the active and 
the inactive categories of operational ranges, suggesting that it will 
motivate DoD to retain ranges that are never used and should be closed 
as nominally ``inactive'' ranges to defer cleanup costs. This policy 
question was addressed in section 266.201 of EPA's 1997 Military 
Munitions Rule, which established a three-part test designed to prevent 
such manipulation: ``inactive ranges'' must be ``still under military 
control and considered by the military to be potential range area, and 
[must] not [have] been put to a new use that is incompatible with range 
activities.'' This test is codified in the definition of ``operational 
range'' that the Department is proposing, as discussed above.
    We believe that this test will appropriately limit DoD's discretion 
in characterizing ranges as ``inactive'' but still ``operational,'' 
while not providing DoD with excessive incentives to close inactive 
ranges. Our range sustainment policy initiative is based on the 
recognition that DoD will not easily acquire new range lands in the 
future, even though modern precision munitions and weapons systems, 
with their longer ranges, require increasing training areas. Existing 
range lands must therefore be appropriately but not excessively 
husbanded for future needs. DoD believes that the policy embodied in 
the Military Munitions Rule and our proposed ``operational range'' 
definition strikes the correct balance.
    I should also mention that DoD is taking action, in response to 
congressional direction, to make visible our range inventory. This is 
being done in two ways. First, in response to requirements in Section 
311 of the fiscal year 2002 National Defense Authorization Act, DoD 
will make publicly available by May 31st of this year an initial 
inventory of former ranges and other areas which may require a 
munitions response action. We are now working with EPA, the Federal 
Land Managers, the States, and affected Tribes to ensure this list is 
as comprehensive as possible. This list will include Formerly Used 
Defense Sites, BRAC installations, and also, most important to the 
discussion today, a list of closed ranges on active installations. And 
second, in response to the requirements of Section 366 of the fiscal 
year 2003 National Defense Authorization Act, DoD is developing a list 
of operational ranges which will include a delineation of active and 
inactive ranges. Together, these lists will enable an accounting of all 
areas for which we are concerned about in this discussion.
Marine Mammal Protection Act
    Although I realize this committee is not centrally concerned with 
the Marine Mammal Protection Act (MMPA), I would like to take a moment 
to discuss it for purposes of completeness. This year's MMPA proposal 
includes some new provisions. This year's proposal, like last year's, 
would amend the term ``harassment'' in the MMPA, which currently 
focuses on the mere ``potential'' to injure or disturb marine mammals.
    Our initiative adopts verbatim a reform proposal developed during 
the prior Administration by the Commerce, Interior, and Defense 
Departments and applies it to military readiness activities. That 
proposal espoused a recommendation by the National Research Council 
(NRC) that the currently overbroad definition of ``harassment'' of 
marine mammals which includes ``annoyance'' or ``potential to disturb'' 
be focused on biologically significant effects. As recently as 1999, 
the National Marine Fisheries Service (NMFS) asserted that under the 
sweeping language of the existing statutory definition harassment ``is 
presumed to occur when marine mammals react to the generated sounds or 
visual cues'' in other words, whenever a marine mammal notices and 
reacts to an activity, no matter how transient or benign the reaction. 
As the NRC study found, ``If [this] interpretation of the law for 
level--harassment (detectable changes in behavior) were applied to 
shipping as strenuously as it is applied to scientific and naval 
activities, the result would be crippling regulation of nearly every 
motorized vessel operating in U.S. waters.''
    Under the prior Administration, NMFS subsequently began applying 
the NRC's more scientific, effects-based definition. But environmental 
groups have challenged this regulatory construction as inconsistent 
with the statute. As you may know, the Navy and the National Oceanic 
and Atmospheric Administration suffered an important setback last year 
involving a vital anti-submarine warfare sensor SURTASS LFA, a towed 
array emitting low-frequency sonar that is critical in detecting ultra-
quiet diesel-electric submarines while they are still at a safe 
distance from our vessels. In the SURTASS LFA litigation environmental 
groups successfully challenged the new policy as inconsistent with the 
sweeping statutory standard, putting at risk NMFS' regulatory policy, 
clearly substantiating the need to clarify the existing statutory 
definition of harassment that we identified in our legislative package 
last year.
    Second, this year's language will address new concerns resulting 
from the District Court's ruling in the SURTASS LFA case, which 
highlighted a number of structural deficiencies in application of the 
MMPA to military readiness activities that require legislative change. 
In addition to ruling against NOAA's regulatory interpretation of 
``harassment,'' the Court ruled against NOAA's longstanding application 
of the MMPA's ``small numbers'' requirement. The National Research 
Council has recommended that this provision be deleted as not 
scientifically based. Elimination of this requirement, which Congress 
has previously acknowledged is ``incapable of quantification,'' would 
instead appropriately focus impact determinations on the scientifically 
based ``negligible impacts'' standard. In addition, the litigation 
highlighted the difficulty in identifying a ``specific geographical 
region'' for permits applied to military readiness activities. Given 
the migratory nature of marine mammals, varying biological and 
bathymetric features in the environment they occupy, and the worldwide 
nature of naval operations, this requirement is extremely difficulty to 
define as a legal matter. Our proposal would have no effect on NOAA's 
responsibility to satisfy itself that our activities would have 
``negligible impacts'' a finding that necessarily entails full 
consideration of the location and timing of our readiness activities. 
It would, however, prevent critical readiness activities that have been 
validated by such scientific review from being impeded by technical 
legal issues of defining ``regions''.
    The last change we are proposing, a national security exemption 
process, also derives from feedback the Defense Department received 
from environmental advocates last year after we submitted our proposal, 
as I discussed above. Although DoD continues to believe that 
predicating essential military training, testing, and operations on 
repeated invocations of emergency authority is unacceptable as a matter 
of public policy, we do believe that every environmental statute should 
have such authority as an insurance policy. The comments we received 
last year highlighted the fact that the MMPA does not currently contain 
such emergency authority, so this year's submission does include a 
waiver mechanism. Like the Endangered Species Act, our proposal would 
allow the Secretary of Defense, after conferring with the Secretaries 
of Commerce or Interior, as appropriate, to waive MMPA provisions for 
actions or categories of actions when required by national security. 
This provision is not a substitute for the other clarifications we have 
proposed to the MMPA, but rather a failsafe mechanism in the event of 
emergency.
    The only substantive changes are those described above. The reason 
that the text is so much more extensive than last year's version is 
that last year's version was drafted as a freestanding part of title 10 
the Defense Department title rather than an amendment to the text of 
the MMPA itself. This year, because we were making several changes, we 
concluded that as a drafting matter we should include our changes in 
the MMPA itself. That necessitated a lot more language, largely just 
reciting existing MMPA language that we are not otherwise modifying.
    The environmental impacts of our proposed reforms would be minimal. 
Although our initiative would exclude transient, biologically 
insignificant effects from regulation, the MMPA would remain in full 
effect for biologically significant effects not only death or injury 
but also disruption of significant activities. The Defense Department 
could neither harm marine mammals nor disrupt their biologically 
significant activities without obtaining authorization from FWS or 
NMFS, as appropriate.
    Nor does our initiative depart from the precautionary premise of 
the MMPA. The Precautionary Principle holds that regulators should 
proceed conservatively in the face of scientific uncertainty over 
environmental effects. But our initiative embodies a conservative, 
science-based approach validated by the National Research Council. By 
defining as ``harassment'' any readiness activities that ``injure or 
have the significant potential to injure,'' or ``disturb or are likely 
to disturb,'' our initiative includes a margin of safety fully 
consistent with the Precautionary Principle. The alternative is the 
existing grossly overbroad, unscientific definition of harassment, 
which sweeps in any activity having the ``potential to disturb.'' As 
the National Research Council found, such sweeping overbreadth is 
unscientific and not mandated by the Precautionary Principle.
    Enforcement, mitigation, and monitoring, with exactly the same 
degree of transparency, will continue unchanged for naval activities 
likely to disturb biologically significant activities. Indeed, during 
the prior Administration's development of our proposed language, both 
the Interior Department and the Justice Department expressed the view 
that the vagueness of the existing definition of harassment was making 
it difficult to enforce, and that the proposed language would 
facilitate prosecution of violations. The current enforcement, 
mitigation and monitoring affected by our initiative would be that 
directed toward biologically insignificant effects i.e., that which by 
definition does not contribute to marine mammal welfare. Nor will our 
initiative engender more debate: it will merely shift debate to where 
it should be, over biologically significant activities not over the 
nebulous ``potential to disturb'' standard rejected by the prior 
Administration, NMFS, and the National Research Council.
    The Defense Department already exercises extraordinary care in its 
maritime programs: all DoD activities worldwide result in fewer than 10 
deaths or injuries annually (as opposed to 4800 deaths annually from 
commercial fishing activities). And DoD currently funds much of the 
most significant research on marine mammals, and will continue this 
research in future.
    Although the environmental effects of our MMPA reforms will be 
negligible, their readiness implications are profound. Application of 
the current hair-trigger definition of ``harassment'' has profoundly 
affected both vital R&D efforts and training. Navy operations are 
expeditionary in nature, which means world events often require 
planning exercises on short notice. To date, the Navy has been able to 
avoid the delay and burden of applying for a take permit only by 
curtailing and/or dumbing down training and research/testing. For 6 
years, the Navy has been working on research to develop a suite of new 
sensors and tactics (the Littoral Advanced Warfare Development Program, 
or LWAD) to reduce the threat to the fleet posed by ultraquiet diesel 
submarines operating in the littorals and shallow seas like the Persian 
Gulf, the Straits of Hormuz, the South China Sea, and the Taiwan 
Strait. These submarines are widely distributed in the world's navies, 
including ``Axis of Evil'' countries such as Iran and North Korea and 
potentially hostile great powers. In the 6 years that the program has 
operated, over 75 percent of the tests have been impacted by 
environmental considerations. In the last 3 years, 9 of 10 tests have 
been affected. One was canceled entirely, and 17 different projects 
have been scaled back.
Endangered Species Act
    Our Endangered Species Act provision is unchanged from last year. 
The legislation 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, 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. The prior Administration's decision that INRMPs may 
adequately provide for appropriate endangered species habitat 
management is being challenged in court by environmental groups, who 
cite Ninth Circuit caselaw suggesting that other habitat management 
programs provided an insufficient basis for the Fish and Wildlife 
Service 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 
Fish and Wildlife Service's policy from such challenges.
    Both the prior and current Administrations have affirmed the use of 
INRMPs as a basis for possible exclusion from critical habitat. Such 
plans are required to provide for fish and wildlife management, land 
management, forest management, and fish and wildlife-oriented 
recreation; fish and wildlife habitat enhancement; wetland protection, 
enhancement, and restoration; establishment of specific natural 
resource management goals, objectives, and timeframes; and enforcement 
of natural resource laws and regulations. And unlike the process for 
designation of critical habitat, INRMPs assure a role for state 
regulators. Furthermore, INRMPs must be reviewed by the parties on a 
regular basis, but not less than every 5 years, providing a continuing 
opportunity for FWS input.
    By contrast, in 1999, the Fish and Wildlife Service stated in a 
Notice of Proposed Rulemaking that ``we have long believed that, in 
most circumstances, the designation of `official' critical habitat is 
of little additional value for most listed species, yet it consumes 
large amounts of conservation resources, . [W]e have long believed that 
separate protection of critical habitat is duplicative for most 
species.''
    Our provision does not automatically eliminate critical habitat 
designation, precisely because under the Sikes Act, the statute giving 
rise to INRMPs, the Fish & Wildlife Service is given approval authority 
over those elements of the INRMP under its jurisdiction. This authority 
guarantees the Fish & Wildlife Service the authority to make a case-by-
case determination concerning the adequacy of our INRMPs as a 
substitute for critical habitat designation. And if the Fish & Wildlife 
Service does not approve the INRMP, our provision will not apply to 
protect the base from critical habitat designation.
    Our legislation explicitly requires that the Defense Department 
continue to consult with the Fish and Wildlife Service and the National 
Marine Fisheries Service under Section 7 of the Endangered Species Act 
(ESA); the other provisions of the ESA, as well as other environmental 
statutes such as the National Environmental Policy Act, would continue 
to apply, as well.
    The Defense Department's proposal has vital implications for 
readiness. Absent this policy, courts, based on complaints filed by 
environmental litigants, compelled the Fish and Wildlife Service to re-
evaluate ``not prudent'' findings for many critical habitat 
determinations, and as a result FWS proposed to designate over 50 
percent of the 12,000-acre Marine Corps Air Station (MCAS) Miramar and 
over 56 percent of the 125,000-acre Marine Corps Base (MCB) Camp 
Pendleton. Prior to adoption of this policy, 72 percent of Fort Lewis 
and 40 percent of the Chocolate Mountains Aerial Gunnery Range were 
designated as critical habitat for various species, and analogous 
habitat restrictions were imposed on 33 percent of Fort Hood. These are 
vital installations.
    Unlike Sikes Act INRMPs, critical habitat designation can impose 
rigid limitations on military use of bases, denying commanders the 
flexibility to manage their lands for the benefit of both readiness and 
endangered species.
Clean Air Act General Conformity Amendment
    Our Clean Air Act amendment is unchanged since last year. The 
legislation would provide more flexibility for the Defense Department 
in ensuring that emissions from its military training and testing are 
consistent with State Implementation Plans under the Clean Air Act by 
allowing DoD and the states a slightly longer period to accommodate or 
offset emissions from military readiness activities.
    The Clean Air Act's ``general conformity'' requirement, applicable 
only to Federal agencies, has repeatedly threatened deployment of new 
weapons systems and base closure/realignment despite the fact that 
relatively minor levels of emissions were involved.

      The planned realignment of F-14s from NAS Miramar to NAS 
Lemoore in California would only have been possible because of the 
fortuity that neighboring Castle Air Force Base in the same airshed had 
closed, thereby creating offsets.
      The same fortuity enabled the homebasing of new F/A-18 E/
Fs at NAS Lemoore.
      The realignment of F/A-18 C/Ds from Cecil Field, Florida, 
to NAS Oceana in Virginia was made possible only by the fortuity that 
Virginia was in the midst of revising its Implementation Plan and was 
able to accommodate the new emissions. The Hampton Roads area in which 
Oceana is located will likely impose more stringent limits on ozone in 
the future, thus reducing the state's flexibility.

    As these near-misses demonstrate, under the existing requirement 
there is limited flexibility to accommodate readiness needs, and DoD is 
barred from even beginning to take readiness actions until the 
requirement is satisfied.
    Our proposal does not exempt DoD from conforming to applicable 
requirements; it merely allows DoD more time a 3-year period to find 
offsetting reductions. And this period does not apply to ``any 
activities,'' but rather to the narrow category of military readiness 
activities, which characteristically generate relatively small amounts 
of emissions typically less than 0.5 percent of total emissions in air 
regions.
    The Clean Air Act permits the President to issue renewable 1-year 
waivers for individual Federal sources upon a paramount national 
interest finding, or to issue renewable 3-year regulations waiving the 
Act's requirements for weaponry, aircraft, vehicles, or other uniquely 
military equipment upon a paramount national interest finding. Use of 
such time-limited authorities in the context of activities that are (a) 
ongoing indefinitely, and (b) largely cumulative in effect would be 
difficult under a paramount interest standard, and would require 
needless revisiting of the issue annually or triennially.
    This provision is vitally needed to protect readiness. The more 
efficient and powerful engines that are being designed and built for 
virtually all new weapons systems will burn hotter and therefore emit 
more NOx than the legacy systems they are replacing, even though they 
will also typically emit lower levels of VOCs and CO. Without greater 
flexibility, the conformity requirement could be a significant obstacle 
to basing military aircraft in any Southern California location, as 
well as a potentially serious factor for the siting of the Joint Strike 
Fighter and the Marine Corps' Advanced Amphibious Assault Vehicle.
Quantification of Encroachment
    The final issue that I wish to raise as a part of today's hearing 
concerns our ability to better quantify how encroachment affects our 
test and training mission. This has been an on-going criticism of our 
legislative effort as well as our broader range sustainment strategy a 
concern raised as part of GAO's report on encroachment dated April 25, 
2002.\7\ Because of these concerns and as part of the National Defense 
Authorization Act for Fiscal Year 2003, Congress directed the Secretary 
of Defense to develop a plan to address training constraints caused by 
limitations on use of our land, sea, and air resources.
---------------------------------------------------------------------------
     \7\Although some commentators have mischaracterized the GAO report 
as stating that encroachment has had no impact on military readiness, 
the report itself explicitly states that encroachment is having 
demonstrable adverse effects on readiness.
---------------------------------------------------------------------------
    As part of this requirement, DoD has recognized the need for better 
supporting data to substantiate our requests for encroachment relief. 
In response, the Under Secretary for Personnel and Readiness, has 
recently asked the Secretary of each military department to develop and 
submit specific information, to include:

      An assessment of the current and future training 
requirements of their respective Service;
      A report on implementation of a Service range inventory 
system;
      An evaluation of the adequacy of current Service 
resources to meet both current and future training requirements in the 
United States and overseas;
      A comprehensive plan to address operational constraints 
resulting in adverse training impacts caused by limitations on the use 
of, or access to, land, water, air and spectrum that are available or 
needed in the United States and overseas for training; and
      A report on, or specific plans for, designation of an 
office within each of the military departments that will have lead 
responsibility for overseeing implementation of the plan.
Conclusion
    In closing Mr. Chairman, let me emphasize that modern warfare is a 
``come as you are'' affair. There is no time to get ready. We must be 
prepared to defend our country wherever and whenever necessary. While 
we want to train as we fight, in reality our soldiers, sailors, airmen 
and Marines fight as they train. The consequences for them, and 
therefore for all of us, could not be more momentous.
    DoD is committed to sustaining U.S. test and training capabilities 
in a manner that fully satisfies that military readiness mission while 
also continuing to provide exemplary stewardship of the lands and 
natural resources in our trust.
    Mr. Chairmen, we sincerely appreciate your support on these 
important readiness issues. I look forward to working with you on our 
Readiness and Range Preservation legislation.
    Thank you.
                                 ______
                                 
  Responses of Benedict S. Cohen to Additional Questions from Senator 
                                 Inhofe
    Question 1. For the record, about how much time would you say you 
have spent working on this issue?
    Response. I would estimate that I have spent hundreds, if not 
thousands, of hours on the issues presented by the RRPI. However, it 
has not been only my time that has been involved in working on this 
important initiative, but also the time of an almost inestimable number 
of personnel, military and civilian, throughout the Department of 
Defense and the military departments. Here in Washington, numerous DOD 
offices have people working on RRPI, as do each of the military 
departments. Our people attend frequent intra-DOD working group 
meetings, and work in the interagency process to address the concerns 
of other agencies within the Federal family regarding our RRPI 
proposals. They have met frequently with members and staff on Capitol 
Hill, as well as providing information and engaging in outreach efforts 
with State, local and tribal representatives, nongovernmental 
organizations, and private citizens. In developing the proposals, we 
have sought information from the military operators to ensure that the 
proposals met their readiness needs. In many of these cases, requests 
for information, often generated in response to questions from 
congressional members and staff, must be pushed down to the individual 
installations for response. I could only guess at the time dedicated to 
this proposal by the individual installations.

    Question 2. Please describe for me the intent of the DOD here. All 
sorts of nefarious intents have been alleged. Is that true?
    Response. Our intent is to sustain military test and training 
activities in a way that ensures our military can provide overwhelming 
force when engaged in combat actions. We also accept that a vital part 
of this sustainment is protection of human health and the environment. 
We believe we can do both--effectively for our military and our natural 
resources and effectively for the taxpayer.

    Question 3. Please detail your interactions with stakeholders on 
this issue.
    Response. The Services and DOD have worked with a wide range 
stakeholders with a goal to ensure that the RRPI proposal effectively 
balances the imperative of military readiness with our obligations for 
environmental protection. In order to achieve this goal, DOD has 
entered into dialog with a variety of stakeholders to identify mutual 
issues and workable solutions.
    With respect to the specific proposals of the RRPI, DOD has had 
numerous meetings with each Federal agency with special expertise or 
responsibility for the resource implicated by the RRPI. We have made 
myriad modifications to our proposals in order to accommodate their 
important and legitimate interests. We significantly modified our 
proposal regarding Clean Air Act conformity requirements in order to 
address concerns raised by the Environmental Protection Agency and to 
ensure that State Clean Air Act implementation programs are not 
jeopardized by DOD emissions resulting from our military readiness 
activities. We also modified our RRPI proposal as it relates to RCRA 
and CERCLA based on EPA and other stakeholder inputs. We drafted our 
provisions related to the Endangered Species Act and the Marine Mammal 
Protection Act in close consultation with the Department of the 
Interior and the U.S. Fish and Wildlife Service and the National 
Oceanic and Atmospheric Administration. The results were proposals that 
facilitate important readiness considerations and are supported by 
those agencies.
    We have reached out to the States. We have spoken to various 
organizations that represent State interests, to include the 
Environmental Council of States (ECOS) and the Association of State and 
Territorial Solid Waste Management Officials (ATSWMO). In addition, we 
have had discussions with representatives of individual States that 
have expressed concern over the RRPI proposal, to include discussions 
with officials in Colorado, Florida, Texas, Alaska, California, and 
many others. Also, as I noted in my testimony, for ``other than 
operational ranges'' that require cleanup, the Department has 
established a Munitions Response Committee that includes partners from 
the U.S. Environmental Protection Agency, Federal Land Managers, 
States, and Tribes. Although this committee deals with other than 
operational ranges, we have discussed our RRPI proposal with members of 
the committee, and have made modifications based on input to ensure 
that it is clear that our RRPI proposals only apply to operational 
ranges, not those that have closed, transferred, or are transferring.
    DOD is partnering with land trust organizations and State and local 
governments to find ways to create buffer zones and habitat critical to 
threatened and endangered species adjoining our test and training 
ranges. DOD has conducted a national workshop with these organizations 
and is in the process of implementing the two land provisions that were 
passed as part of RRPI by last year's Congress.
    As a member of the ``Pulling Together Initiative,'' DOD has pooled 
resources with other conservation partners to launch coordinated 
efforts to control invasive weeds that damage habitat and increase 
erosion and fire hazards.
    The U.S. Navy has joint environmental research initiatives with the 
Woods Hole Oceanographic Institute, Scripps Institution of 
Oceanography, Cornell University, the University of Washington, the 
University of Hawaii, and Oregon State University to address maritime 
and marine mammal issues related to Navy testing and training 
operations.
    DOD continues to work with local communities on current clean-up 
initiatives underway at military sites across the U.S. DOD intends to 
meet its obligations to clean up contamination from past practices and 
continue our strong pollution prevention and environmental compliance 
programs. In this fiscal year alone, the environmental budget for DOD 
will be $4 billion.
    DOD also meets on a regular basis with representatives from the 
national environmental groups at settings like the ``Brown Bag'' lunch 
discussions sponsored by the Endangered Species Coalition and the 
Sierra Club.

    Question 4. Have you been working on refining the language? Please 
be sure to submit for the record the latest versions, complete with 
changes.
    Response. Yes. As noted in the answer to the previous question, we 
have made numerous revisions to the language in order to address 
stakeholder issues. EPA and DOD have jointly completely revised our 
RCRA and CERCLA provisions to delete provisions addressing any issues 
beyond.our key concern, test and training on operational ranges 
(attached). This revised language makes it unmistakably clear that our 
proposal has no effect whatsoever on; closed ranges, or ranges that 
close in the future; DOD's contractors' activities, or DOD's financial 
obligations to its contractors or any other third parties; DOD's non-
readiness activities, either on-range or off-range (including disposal 
of munitions by such methods as open burn/open detonation, burial, or 
landfilling); or State and EPA regulatory authority over DOD activities 
(including military readiness activities) under the Safe Drinking Water 
Act.
    Moreover, DOD remains engaged in extensive dialog with numerous 
State regulators over the intent underlying our proposals and future 
changes that might be helpful in clarifying that intent. We will keep 
the committee apprised of the results of these continuing discussions.

    Question 5. You have been open to constructive criticism, haven't 
you?
    Response. I believe DOD's aggressive outreach efforts and our 
demonstrated willingness to adjust our proposal based on stakeholder 
input places our openness to constructive criticism beyond question.

    Question 6. What, if any, plans do you have to continue this work?
    Response. We believe the focused proposals we have made in the RRPI 
are an important step in our effort to protect military ranges and 
readiness activities from encroachment. Even if the RRPI becomes law, 
more work remains to be done. DOD is looking beyond just legislative 
fixes for encroachment issues. We are in the process of evaluating all 
of the circumstances that create problems for our test and training 
ranges. Some of these may be solved with administrative or regulatory 
changes. We are working with the military services, other Federal 
agencies, tribes, States and local communities to find ways to better 
balance military, community and environmental needs. DOD is also 
developing a suite of internal policy and procedure adjustments, the 
capstone of which is a new DOD Directive recently signed by the Deputy 
Secretary of Defense to ensure long-range, sustainable approaches to 
range management. In addition, we intend to strengthen and empower 
management structures to deal with range issues. We also have taken a 
pro-active role to protect bases from urbanization effects by working 
with local planning and zoning organizations and other stakeholders. 
Finally, DOD is also planning to address the long-term sustainment 
process by reaching out to and involving other stakeholders. We must 
improve the understanding of readiness needs among affected groups, 
such as State and local governments and non-government organizations. 
We must establish dialog and form partnerships with these groups to 
reach our common goals. This will enable us to take a proactive stance 
against encroachment and protect our bases into the future.

    Question 7. Please describe what military statutes provide in the 
way of emergency exemptions to these laws? Isn't there one that 
provides 5 days of relief? How effective would that be?.
    Response. Seven environmental laws authorize the President to 
exempt Federal agencies from certain legal requirements if he 
determines it to be in the ``paramount interest of the United States.'' 
(Clean Water Act; Resource Conservation and Recovery Act; Clean Air 
Act; Noise Control Act; Safe Drinking Water Act; Marine Protection, 
Research, and Sanctuaries Act; Coastal Zone Management Act) Two 
environmental laws allow the President to exempt DOD from certain 
requirements if he determines that doing so is ``necessary for reasons 
of national security.'' (Comprehensive Environmental Response, 
Compensation, and Liability Act; Toxic Substances Control Act). The 
Endangered Species Act authorizes the Secretary of Defense to direct 
the Endangered Species Committee to exempt DOD actions that are before 
the Committee from certain requirements when he finds that the 
exemption is ``necessary for reasons of national security.'' Other 
environmental statutes, including most notably the Marine Mammal 
Protection Act and the National Environmental Policy Act, contain no 
national security exemption, even for wartime.
    10 USC 2014, to which you refer, allows a delay of at most 5 days 
in regulatory actions significantly affecting military readiness. I 
detailed in my testimony why, although. useful, neither this provision, 
nor those contained in environmental statutes, are a substitute for the 
focused proposals of the RRPI. We do not believe it is good public 
policy to use exemptions for what is an ongoing day-to-day issue for 
our military trainers. We need to fix the root cause of the issue.

    Question 8. Isn't the point here that you need these changes for 
routine operations to prepare for the emergency situations BEFORE the 
emergency situations present themselves?
    Response. That is exactly right. To allow routine test and training 
activities to be degraded in quality until an emergency occurs ensures 
that the troops we dispatch to deal with the emergency do so on the 
basis of compromised, suboptimal training. Only the follow-on forces we 
send after them will have the benefit of such an emergency exemption; 
for them, it will come too late.
    Moreover, I do want to clarify the word ``routine.'' Our proposals 
would cover only military readiness activities, many of which may occur 
on a routine basis. But the RRPI does not cover all day-to-day 
activities engaged in by the military. Our proposal only applies to a 
narrow category of activities, i.e., ``military readiness activities.'' 
Military readiness activities do not include activities on closed 
ranges or ranges that close in the future. Nor are the routine 
installation operating support functions (e.g., water treatment 
facilities, motor pools, industrial activities, construction or 
demolition) included in the definition of ``military readiness 
activities.'' As I stated in my testimony, our initiative is not 
applicable to the Defense Department activities that have traditionally 
been of greatest concern to State and Federal regulators. It does 
address only uniquely military activities-what DOD does that is unlike 
any other governmental or private activity.

    Question 9. Governor Whitman has testified that, ``We have been 
working very closely with the Department of Defense, and I don't 
believe that there is a training mission anywhere in the country that 
is being held up or not taking place because of an environmental 
protection regulation,'' and ``[A]t this point in time I am not aware 
of any particular area where environmental protection regulations are 
preventing desired training.''
    Why do you believe that the environmental legislation proposed by 
the Department of Defense should be enacted when you also apparently 
believe there is no instance where it is needed?
    I want to be clear that as Chairman of the Environment and Public 
Works Committee and as a father of four and a grandfather of eleven, I 
am quite mindful of our nation's future and want to continue the 
improvement in the health of our environment, which EPA statistics 
show.
    Response. DOD faces ever increasing challenges from the cumulative 
effect of urbanization and the increasing application of environmental 
restrictions on military readiness activities. Although DOD has so far 
been able to find ``work-arounds'' to most restrictions, availability 
and fidelity of training have suffered. Our flexibility to continue to 
do these ``work-arounds'' is quickly diminishing. For example, our 
young men and women often must be sent farther and farther from their 
home station to complete training because they cannot accomplish 
training at their home station due to environmental restrictions. As 
you pointed out in a previous question, our intent is to plan ahead, to 
be prepared before an emergency presents itself.
    Lawsuits from private entities currently underway do have the 
ability to dramatically affect our ability to continue training and we 
want to ensure that those types of actions do not stop our military 
readiness activities.
    Because external pressures are increasing, the adverse impacts to 
readiness are growing. Yet future testing and training needs will, only 
further exacerbate these issues, as the speed and range of our weaponry 
and the number of training scenarios increase in response to real-world 
situations our forces will fade when deployed. We must therefore begin 
to address these issues in a much more comprehensive and systematic 
fashion and understand that they will not be resolved overnight, but 
will require a sustained effort.

    Question 10. Will human health and the environment be fully 
protected under this legislative proposal?
    Response. Yes. Each of our proposals has been designed to ensure 
that adverse impacts will be minimal. As we have often pointed out, our 
proposals are not blanket exemptions from environmental law. Rather, 
they are narrow and targeted. They apply only to military readiness 
activities, preserve regulatory ability to take protective action when 
human health or the environment is endangered, and do not eliminate 
DOD's current obligations for environmental compliance or cleanup.

    Question 11. EPA has worked closely with DOD on these proposals. 
Are you absolutely convinced that these proposals are necessary to 
fully accommodate America's military readiness?
    Response. Yes.

    Question 12. What authorities will EPA have to ensure that the 
environment is clean under Superfund?
    Response. EPA, the States, and citizens reserve their current 
ability to enforce compliance/cleanup under CWA and the SDWA on 
operational ranges to protect the health of the public. RPPI does not 
affect that. Current legal requirements and obligations under CERCLA/
RCRA/CWA and the SDWA are maintained for all contaminants that migrate 
off operational ranges. If DOD does not preclude or address the 
migration, the EPA, the States, and citizens retain their current 
rights to enforce compliance/cleanup to also protect the health of the 
public in this case.

    Question 13. What authorities will EPA have to ensure that the 
environment is clean under the Resource Conservation and Recovery Act--
RCRA?
    Response. EPA, the States, and citizens reserve their current 
ability to enforce compliance/cleanup under CWA and the SDWA on 
operational ranges to protect the health of the public. RPPI does not 
affect that. Current legal requirements and obligations under CERCLA/
RCRA/CWA and the SDWA are maintained for all contaminants that migrate 
off operational ranges. If DOD does not preclude or address the 
migration, the EPA, the States, and citizens retain their current 
rights to enforce compliance/cleanup to protect the health of the 
public in this case.

    Question 14. As a former State legislator I want to assure you that 
I am quite cognizant of States' rights. What is the status of States' 
rights under this proposal? Do States maintain protections under this 
proposal? What, if any, rights do States lose under this proposal?
    Response. States will maintain protections under each element of 
the RRPI, and in crafting the RRPI the Department of Defense was 
careful to minimize the impacts the proposal would have on a State's 
rights to enforce environmental requirements. The RCRA/CERCLA provision 
is a codification of current EPA and State policy concerning regulation 
of munitions used on operational ranges. It simply confirms that 
military munitions are subject to EPA's 1997 Military Munitions Rule, 
and that the use of munitions for testing and training is not, by 
itself, a trigger for cleanup requirements on operational ranges, 
unless contamination moves off range. The provision does not apply to 
closed ranges, and it also preserves EPA and State rights to respond to 
cases of imminent endangerment under RCRA and CERCLA, and to protect 
sources of drinking water under the Safe Drinking Water Act.
    Under our proposal for the Clean Air Act, our provision serves only 
to give military readiness activities a modest extension of time to 
conform to State Implementation Plans. It does not exempt our 
activities from compliance, and it ensures that States are not 
penalized during the time DOD is finding offsets for increased 
emissions from readiness activities.
    Our proposal under the Endangered Species Act does not affect the 
current requirement that Integrated Natural Resources Management Plans 
must be prepared in cooperation with the Secretary of the Interior and 
State fish and wildlife agencies and be approved by both.

    Question 15. I am also a former Mayor. What is the status of 
cities' rights under this proposal? Do cities maintain protections 
under this proposal? What, if any, rights do cities lose under this 
proposal?
    Response. As with States, cities' protections and rights are 
maintained by this proposal. As we've noted previously, the RRPI does 
not exempt DOD activities from any provision of environmental law.

    Question 16. Will States lose any tools available to them for 
cleanup?
    Response. No. DOD believes that under existing law, military 
testing and training on operational ranges is neither a waste 
management activity under RCRA or a release under CERCLA. Our proposals 
confirm this interpretation. Therefore, neither EPA, nor the States, 
nor citizens will lose any tools for cleanup that are available to them 
now.

    Question 17. Who is authorized to clean up sites when there is a 
threat of ``imminent and substantial endangerment''--States or the 
Federal Government or both?
    Response. The Federal Government and the States have environmental 
laws that apply to imminent and substantial endangerment of human 
health or the environment.

    Question 18. I know Senator McCain has concerns that there may be a 
loss of funding for cleanup if these legislative proposals are enacted. 
Is there any truth to that? Will EPA change its allocations of funds if 
these proposals are enacted?
    Response. Although we defer to EPA concerning its program funding 
allocation, nothing in RRPI requires or would even imply any change in 
DOD or EPA cleanup funding levels or allocation.

    Question 19. Is it fair to characterize the subsection (a) as 
requiring DOD to estimate and report to the State emissions from 
proposed military training activities? Does subsection (a) also provide 
DOD with a 3-year window of flexibility?
    Response. Yes. Section 2018(a) requires DOD to estimate the 
emissions of any covered criteria pollutants or precursors from 
proposed military readiness activities covered by Clean Air Act (CAA) 
Section 176(c), and to inform State air quality regulators of those 
covered emissions before engaging in the activity. Section 2018(a) 
would also modify existing law to provide military readiness activities 
up to 3 years to demonstrate conformity with the State Implementation 
Plan (SIP) from the date they begin.

    Question 20. Is it fair to characterize subsections (b) through (e) 
as holding States harmless for emissions from military readiness 
activities?
    Response. Yes. Under subsections (b) through (e) State air programs 
will not be penalized for any failure to attain or maintain the 
national ambient air quality standards (NAAQS) that is solely due to a 
military readiness activity's extension of time to meet general 
conformity requirements.

    Question 21. Are cities also held harmless?
    Response. The hold harmless provisions of Sections 2018(b)--(e) 
apply to any SIP for any nonattainment or maintenance area under the 
CAA that involves a covered military readiness activity. To the extent 
that a city is located in such a non-attainment or maintenance area, or 
develops and implements the affected SIP for the area, it will be held 
harmless as well: neither the city nor any other sources will be 
required to compensate for the temporary increase in DOD emissions.

    Question 22. Some States and some cities have expressed the concern 
that they will bear an additional burden upon enactment of these 
legislative proposals. Is there any truth to that burden-shifting 
argument?
    Response. It is not clear to me how it can be argued that the RRPI 
shifts any burden to States or cities. As we've often pointed out, the 
RRPI does not exempt DOD's military readiness activities from any 
requirements of environmental law. Of the RRPI proposals, only one 
proposal (CAA) may result in small increases in pollution, and then 
only for a limited period of time. Even here, the proposal is careful 
to ensure that States are held harmless for these small increases in 
emissions.

    Question 23. Is there any truth to the argument that under these 
proposals we are accomplishing the universally accepted goal of 
supporting our Armed Forces at the ``expense of our nonmilitary 
citizens,'' as Councilmember Lindeman from Aurora, Colorado, states in 
her testimony?
    Response. No. To the contrary, the proposals are very narrow in 
scope and largely codify longstanding policies of State and Federal 
environmental protection agencies. We have worked closely with these 
agencies to ensure that the RRPI balances military readiness with 
environmental protection.

    Question 24. Councilmember Lindeman characterizes these proposals 
as ``blanket exemptions'' from environmental laws. Is that a fair 
characterization?
    Response. Although often repeated, the suggestion that the RRPI is 
a ``blanket exemption'' is simply not accurate. DOD will continue to 
comply with the same environmental laws as private organizations when 
engaged in the same activities. With respect to DOD's unique readiness 
activities, the RRPI initiative does not ``exempt'' them; rather, it 
clarifies and confirms existing regulatory policies that recognize the 
unique nature of our activities. It codifies and extends EPA's existing 
Military Munitions Rule; confirms the prior Administration's policy on 
Integrated Natural Resource Management Plans and critical habitat; 
codifies the prior Administration's policy on ``harassment'' under the 
Marine Mammal Protection Act; ratifies longstanding State and Federal 
policy concerning regulation under RCRA and CERCLA of our operational 
ranges; and gives States and DOD temporary flexibility under the Clean 
Air Act.

    Question 25. I want the experts at EPA to put any unwarranted fears 
to rest once and for all-Are the ramifications from these proposals 
``serious,'' ``untenable,'' and do they pose ``significant potential 
for adverse public health effects in cities with respect to air, 
drinking water, and management of hazardous waste,'' as Councilmember 
Lindemann states in testimony, or does this rhetoric not match the 
reality of the proposal?
    Response. EPA supports our RRPI initiative. I do not believe the 
Department would have EPA support if RRPI presented a significant 
threat to public health.

    Question. 26. Can you tell me why a 3-year window of flexibility 
might be appropriate, as opposed to 1 year or 8 years, for example? Is 
this a reasonable amount of time to offset emissions that might result 
from the deployment of new weapons systems and /or realignment of force 
strength?
    Response. The 3-year window of flexibility resulted from a 
compromise urged by EPA in early 2002. DOD originally proposed a 5-year 
window of flexibility because that is generally how long it takes from 
proposal to receipt of funding and approval to begin construction of 
major MILCON projects. Major MILCON projects, such as a baghouse to 
capture air emissions, are sometimes needed to make military readiness 
activities conform to the SIP. Similarly, the 3 years may be needed to 
obtain funding of emission credits or other emission offsets. We 
believe that the additional 3 years from the date the activity begins 
will be an adequate period of additional time to work with local, 
State, and Federal regulators and others to demonstrate positive 
conformity for new weapons systems or realignments.

    Question. 27. What do you think of the suggestions that we 
accommodate concerns that this window is too much time and thus 
represents too many emissions by going with two and one half years or 2 
years instead of 3 years?
    Response. As discussed above, DOD has already compromised by 
shortening the desired window of flexibility by 2 years. Three years is 
a reasonable period. Anything less would not provide sufficient lead 
time to plan, fund, and construct any MILCON projects needed to bring 
military readiness activities into conformity with a SIP. Considering 
that the vast majority of mobile and fugitive sources of problematic 
emissions in a given air quality area are non-military, and their 
operations are unregulated by CAA Section 176(c), emissions from 
existing and new military readiness activities are not a root cause of 
areas failing to attain or maintain the NAAQS. Military readiness 
activity emissions in a given non-attainment or maintenance air quality 
area are generally miniscule in comparison to all other sources of the 
same pollutant.

    Question 28. Councilmember Lindemann poses a rhetorical question in 
her testimony that I would like to have answered in reality.
    She states, ``Contamination, and subsequent closure, of sources of 
drinking water by military ordnance constituents such as perchlorate, 
RDX and TNT have already occurred in Maryland and Massachusetts--under 
current law. What will happen in these municipalities if the Department 
of Defense is exempted from the relevant statutes?
    Response. There will be no change. There is no request by DOD for 
any exemption from the Safe Drinking Water Act, the law that protects 
drinking water sources. The basis for USEPA's action at the 
Massachusetts Military Reservation will be unchanged.

    Question 29. What is the answer to her question? What would have 
happened in those situations if these legislative proposals had been 
enacted at that time? Would things have proceeded differently?
    Response. No. Things would not have proceeded differently. These 
legislative proposals have no effect on the Safe Drinking Water Act or 
on any contamination that presents a threat to human health.

    Question 30 (Note: The following was mistakenly numbered as a 
separate question. Actual Question/Answer in #31). Councilmember 
Lindemann makes another rhetorical point in her testimony that I would 
like to have answered in reality.

    Question 31. Councilwoman Lindemann makes another rhetorical point 
in her testimony that I would like to have answered in reality.
    She characterizes this proposal as exempting military facilities 
from CERCLA remediation requirements, thereby halting the cleanup of 
the sites and preventing any effective opportunity for redevelopment 
and economic stability in the surrounding community. She makes the case 
that the economy is thus jeopardized. Is there any truth to that 
assertion?
    Response. No. No CERCLA remediation requirements are affected by 
our legislative package. Defense Environmental Response Program (DERP) 
sites and Base Realignment and Closure (BRAC) sites will not be 
affected by the legislation.

    Question 32. Concern has been raised about the usage of the term 
``constituents thereof' in conjunction with the list ``explosives, 
unexploded ordnance, munitions, munitions fragments.'' What, if any, is 
the effect of using the term ``constituents thereof''?
    Response. The use of the term ``constituents thereof' is two-fold. 
First, the intent of RRPI is to codify existing EPA and State policy 
that the use of military munitions on operational ranges does not 
trigger the waste management requirements of RCRA or the cleanup 
obligations of CERCLA as long as the munitions, including all of the 
byproducts of the use of munitions (i.e., their constituents) remain on 
the range. This clarification of policy would be of little value if it 
applied only to components of munitions (explosives, unexploded 
ordnance, munitions and munitions fragments) and not to the chemical 
byproducts of the use of munitions, which otherwise might fall within 
the definition of a hazardous waste or hazardous substance. Second, the 
inclusion of the term ``constituents'' ensures that if the byproducts 
of munitions use leave our ranges, for example, by migrating in 
groundwater, they are subject to RCRA or CERCLA or both.

    Question 33. Do the legislative proposals in any way, either 
directly or by implication, affect the Safe Drinking Water Act over 
which this committee has jurisdiction?
    Response. No.

    Question 34. Mr. Benevento on the second panel has shown himself to 
be thoughtful and analytical in some of his suggestions. He has 
suggested that we make explicit in the statutory language that this 
legislation in no way impacts the Safe Drinking Water Act. Even if this 
language were redundant, wouldn't it be a good idea as a means of 
reassuring States and cities? Would you agree to this suggestion?
    Response. DOD would have no objection to such a clarification.

    Question 35. The ``Military Munitions Rule'' which I have in my 
hand was proposed in 1995 by then-EPA Administrator Carol Browner 
during the Clinton/Gore Administration. The same cast of characters 
finalized the rule in 1997. The rule itself was mandated by a Democrat-
controlled Congress in 1992 legislation called the Federal Facilities 
Compliance Act.
    Some have suggested that merely codifying the Military Munitions 
Rule the work of the Democrats--would be a massively roll back of 
environmental law and would constitute a sweeping exemption. Could this 
allegation be true?
    Response. The request for clarification of language in RCRA and 
CERCLA are basically codifications of the Military Munitions Rule and 
do not represent ``a massive roll back'' of environmental laws. We 
believe the Rule represents a reasonable approach that accommodates 
both the imperative of military training and the need for environmental 
protection.

    Question 36. The allegation is that there is a whole host of 
implications associated with codifying the rule, such as State 
sovereign immunity, et cetera. Can you comment on this allegation?
    Response. The Military Munitions Rule has been adopted by a large 
majority of States. The Rule was promulgated by EPA in 1997 after 
extensive consultation with the States. We do not believe codifying the 
Rule implicates State sovereign immunity. The RRPI does not subject the 
States to regulation or to legal action. To the contrary, it applies to 
the Department of Defense and establishes how DOD will be regulated in 
its conduct of military readiness activities. The RRPI simply reaffirms 
Congress' original intent that test and training with munitions on 
operational ranges does not constitute a waste management activity 
under RCRA or a ``release'' under CERCLA, and is thereby not 
appropriately regulated under those States by either the Federal 
Government of the States.
                                 ______
                                 
  Responses of Benedict S. Cohen to Additional Questions from Senator 
                                 Graham
    Question 37. How many acres of land or water (surface waters and 
ocean waters) will be affected by the proposed exemptions?
    Response. As indicated in my testimony, DOD is not seeking 
exemptions from environmental laws. Further, some of the elements of 
our initiative are not geographic in nature, that is, they apply to 
activities rather than to specific places or facilities so it is not 
possible to determine the number of acres that may be affected with any 
degree of precision. For example, our proposal related to Clean Air Act 
conformity would apply to new military readiness activities at any 
installations where they may occur. Similarly, our proposal for a 
modified definition of ``harassment'' under the Marine Mammal 
Protection Act would apply to activities wherever they occur under the 
coverage of the Act.
    Two elements of our initiative that do apply specifically to 
military lands are the provision related to Integrated Natural 
Resources Management Plans (INRMPs) and the provision related to 
munitions use on operational ranges. The INRMP proposal would apply 
only to DOD installations with approved INRMPs. This provision is not 
an exemption from the Endangered Species Act. Rather, it provides that 
DOD lands that are covered by an INRMP that has been approved by the 
Secretary of the Interior as adequately addressing special management 
considerations related to endangered species will not require 
designation as critical habitat. If the Secretary of the Interior were 
to find that an installation INRMP did not provide adequate protection 
for the species, she would not be precluded from designating critical 
habitat.
    The proposals related to munitions use would apply only at 
operational ranges for those test and training activities which use 
military munitions. The Services are currently compiling detailed 
inventories of all their operational training ranges using a common 
inventory framework to ensure reporting consistency across the 
Services. We intend to submit this inventory with the 2005 Budget as 
specified by Congress.

    Question 38. Has the Department of Defense complied a list of 
installations that will be exempted under the provisions of the 
proposal? If so, I would like to review a copy. If not, when do expect 
to compile such a list?
    Response. Not provided to the committee.

    Question 39. Has the Department of Defense investigated whether or 
not environmental contamination exists at these sites in order to 
create a catalog? I would like to review this information if it is 
available.
    Assuming that contamination exists, what are the plans for cleanup 
of these installations? Have any public health assessments been done to 
ascertain the impact of the CERCL?A/RCRA/CAA exemptions to the health 
of communities on and near bases?
    Response. Contamination on operational ranges is addressed under 
the Defense Environmental Restoration Program and installation-specific 
restoration programs. Known contamination sites are reported to 
Congress annually in the Department's Defense Environmental Quality 
Program Annual Report to Congress. Currently, it is not always possible 
to determine whether a reported contamination site is located on an 
operational range or on some other portion of an installation. The 
Department, however, recently began an intensive effort to identify the 
full range of factors affecting', range sustainability, one of which is 
the need to address environmental contamination migrating from 
operational ranges or threatening drinking water sources. Additionally, 
Sec.  313 of the National Defense Authorization Act for Fiscal Year 
2002 (P.L. 107-107) requires the Department to provide to Congress 
information concerning the projected cost to remediate unexploded 
ordnance, discarded military munitions, and munitions constituents at 
all operational ranges. This information will be provided to Congress 
as soon as it becomes available.
    Known contamination migrating from operational ranges or otherwise 
threatening drinking water sources or human health has been--and 
continues to be--addressed under the Defense Environmental Restoration 
Program and installation-specific restoration plans (although the 
reported information concerning these sites has not always made it 
possible to determine easily whether a site is located on an 
operational range or elsewhere on an installation). In the future, we 
expect our range sustainment efforts will produce information that will 
enable us to determine readily whether a contamination problem emanates 
from an operational range.
    With respect to the provisions of the RRPI related to the CAA, they 
relate primarily to military readiness activities that will occur in 
the future, such as missions realigned to bases from bases closed under 
BRAC (Base Realignment And Closure). As part of the realignment 
process, the military department that is the proponent of the action 
will analyze CAA impacts as part of its assessment of the environmental 
consequences of the action pursuant to the National Environmental 
Policy Act.

    Question 40. Has the military made any attempt to use the existing 
exemptions in the environmental laws or any attempts to clarify their 
process? If not, why?
    Response. The Department of Defense has not used the exemptions in 
the environmental laws to military readiness activities, and for the 
reasons I outlined in my testimony, we do not believe existing 
exemptions are well suited for use in the context of on-going military 
readiness activities. Nevertheless, one of the most frequently heard 
comments on our RRPI proposal is that the Defense Department is seeking 
new legislative flexibility without having explored the flexibility 
inherent in existing law. Although we are convinced that existing 
emergency exemptions cannot adequately substitute for our proposals, we 
did take this criticism to heart, and the Department is developing 
procedures to use existing exemptions in the appropriate circumstances.
    In this regard, I would like to address the March 7, 2003 
Memorandum from Deputy Wolfowitz to the Secretaries of the Military 
Departments concerning the process by which the Department will 
evaluate the use of existing exemptions under Federal environmental 
laws. As DOD has repeatedly testified, our efforts to address 
encroachment are multifaceted, and our legislative proposals are only 
one element of them. Other aspects of encroachment will be addressed 
through collaborative efforts with our State and Federal regulators, 
such as the drafting of the MBTA regulation mandated by Congress last 
year. Still others can be addressed through improvements in the 
internal policies and processes of the Defense Department itself.
    The Deputy Secretary's memorandum falls into this last category--
improvements in our own internal processes. It addresses a critical 
shortcoming in our ability to efficiently and thoughtfully consider the 
use of these existing exemption authorities: the absence of an 
articulated process for developing and considering proposed exemptions. 
Accordingly, Dr. Wolfowitz directed the military departments to develop 
procedures to ensure timely evaluation of the full range of relevant 
considerations. Importantly, the Deputy Secretary required that 
proposals for exemption include, among other things, specific, 
quantified evidence of the impact of the regulation proposed for 
exemption on readiness; an explanation of the reason the readiness 
activity cannot be modified, relocated, or rescheduled to avoid 
conflict with the regulation without compromising readiness; and the 
reasonably practical efforts available to mitigate the environmental 
consequences of proceeding with the training or testing activity in 
question.

    Question 41. There are a number of instances in which the military 
has worked in collaboration with local stakeholders to produce win-win 
solutions at installations for species protection and military 
readiness on a case-by-case basis. Yet a November 24, 2002, cover memo 
from the Secretary of the Navy with policy guidance from the Secretary 
and another cover memo from the: Deputy Commandant of the Marines seems 
to be an attempt to centralize at the Pentagon all decisionmaking on 
proposed critical habitat designations and other ESA actions and to 
forbid locally negotiated ESA solutions tailored to local conditions. 
The Secretary's cover memo states``. . . concessions could run counter 
to the legislative relief we are continuing to pursue with Congress.'' 
A cynic might say that this has the appearance of an attempt to 
manufacture conflict between he military and implementation of the ESA. 
What is your explanation of the November 24 memo? Why should problem 
solving with the local community be discouraged?
    Response. The November 24 memorandum is consistent with DOD's goal 
of establishing a comprehensive and coordinated approach to addressing 
encroachment, including the effects of environmental regulation, on our 
training and testing. Collaborative agreements at the local and 
installation level have always been, and will continue to be, how such 
issues are resolved. DOD does not intend to try to centralize this 
process. However, it is important that the parties consider the broader 
implications of potential agreements, and that such agreements be 
consistent with broader DOD policy. While most mutual agreements 
reached between military installations and regulators on ESA issues 
satisfy the interests of both parties, not all have considered the 
potential implications on readiness due to training work-arounds, which 
are at the core of DOD's concerns over the incremental degradations to 
readiness due to encroachment. The Secretary of the Navy's forwarding 
memo advises that local installation commitments that exceed the 
requirements of the Endangered Species Act need to be carefully 
assessed to ensure that they cumulatively don't adversely impact the 
Navy's Title 10 obligations to ensure readiness.

    Question 42. What is the percentage of encroachment caused by 
environmental laws? What is the percentage of the encroachment caused 
by sprawl and urban suburban development?
    Response. While I cannot offer a complete answer, I can provide an 
example. A March 2003 U.S. Marine Corps study of encroachment at Camp 
Pendleton, California, found that restrictions relating to threatened 
or endangered species or to wetlands have the biggest impact on 
training there out of a variety of encroachment factors studied. This 
study found that 53 percent of restrictions associated with non-firing 
field training tasks at Camp Pendleton were caused by these two 
environmental factors. So current environmental law and regulation 
certainly are significant encroachment factors.
    But I would like to answer your question in broader terms. DOD 
believes that the root cause of most encroachment on military ranges is 
increasing development and urbanization, which in turn increases 
competition for natural resources and conflicts between existing 
military activities and the encroaching development. Many of the 
environmental problems we face on our ranges are the result of 
expanding human activity, outside the fence-line, as well as decreasing 
natural habitat in surrounding areas. Because DOD ranges have been 
generally very successful in protecting habitat and natural resources, 
they have in many cases become defacto refuges for endangered species 
in a region. DOD accepts its role to protect and preserve our national 
heritage and natural resources, and we will continue to fully satisfy 
our environmental obligations, to include endangered species 
protection. However, DOD also needs these ranges to conduct is primary 
mission of preparing our armed forces for battle. Our proposal to use 
INRMPs in lieu of critical habitat designation is intended to increase 
flexibility to test and train while still preserving species and their 
natural environments.

    Question 43. How many acres of land does the Army, Navy, Air Force 
and Marine lease to nonmilitary entities for any activity not directly 
related to military operations such as grazing leases, energy leases, 
business park leases, logging leases, airports (and/or their 
extensions), highways and other transportation leases, etc? Can you 
also supply this committee with the percentage of lands (based on the 
total number of land acres) such leases encompass?
    Response. Many of our ranges work with NGO's, surrounding 
communities, businesses and other interests to provide access to DOD 
lands for a variety of purposes. In addition to the uses you cite, some 
DOD lands are made available for farming, hunting and fishing, public 
communications facilities, wastewater treatment areas, State parks, and 
myriad other uses that benefit the surrounding regions. I cannot give 
you a specific answer as to the number of acres involved or the 
percentage of DOD lands such uses encompass without a substantial and 
expensive data-collection activity. It is important to keep in mind 
that as a rule, leases or other agreements with outside parties are 
only allowed when they do not conflict with the military mission. More 
importantly, I want to be quite clear that the RRPI reforms we advocate 
apply only to military readiness activities. None of the non-readiness 
activities on DOD lands that you describe would be benefited in any way 
by our proposals.

    Question 44. The Department of Defense's rationale for requesting 
exemption from environmental laws is that the compliance with such laws 
negatively affects military readiness. Given that, I was surprised to 
see that the fiscal year 2004 budget request cut funding for 
environmental programs by approximately $400 million. Is it your 
understanding that the budget cut was made in anticipation of receiving 
exemptions?
    Response. No, the fiscal year 2004 Budget Request was not made 
anticipating passage of the RRPI. The reduction in the funding request 
for environmental programs in each of the environmental program 
elements as based on reasons entirely unrelated to RRPI.
      Restoration: The RCRA/CERCLA provisions of the RRPI would 
apply only to operational ranges and therefore would have no impact on 
Defense Environmental Restoration Program requirements or environmental 
liability.
      BRAC: The fiscal year 2004 budget request for the total 
fiscal year 2004 BRAC program (including environmental and caretaker 
costs) represents a 34 percent reduction from fiscal year 2003. When 
considering BRAC environmental costs only, the planned value of the `04 
program ($412.0 million) represents a 24 percent reduction from fiscal 
year 2003 ($540.2 million). A significant portion of the difference is 
attributed to revenues anticipated from land sales of base closure 
properties, thus reducing the 2004 budget request.
      Compliance and Pollution Prevention: The Department's 
Compliance and Pollution Prevention ``must fund'' policy remains 
unchanged--DOD Components must fund their environmental requirements at 
a level to ensure compliance with legally mandated standards. The 
President's Budget request for compliance does account for all legally 
mandated requirements. The Department's total requirement is reduced 
for Fiscal Year 21104 because the DOD Components have completed several 
expensive, long-term programs. Examples of actions completed include:
      The Navy completed buying and installing pulpers and 
shredders on ships to reduce discharges at sea;
      The Navy's requirement to fund the UXO removal at 
Kaho'olawe ended in fiscal year 2003;
      The Military Departments finished an effort to fix a 
number of drinking water systems;
      All of the Military Departments have implemented 
``pharmacies'' to reduce the use of hazardous materials;
      All the Military Departments have met the last Toxic 
Release Inventory reduction goal and 2001 is the baseline for a new 
reduction goal (only now can they identify where they need to make 
reductions and the associated investments will be in fiscal year 2005 
and fiscal year 2006); and
      All of the DOD Components are reducing compliance costs 
each year through Pollution Prevention and Environmental Management 
Systems.

    Question 45. Has the Department of Defense done any kind of 
assessment to ascertain the impact of military training and, by 
extension, exemptions on drinking water supplies?
    Response. Groundwater impact assessments have been done, 
particularly at ranges of particular sensitivity or concern, such as 
the Massachusetts Military Reservation, among others. An effort is 
underway to do a more systematic assessment of potential drinking water 
issues. As part of its fiscal year 2004 Defense Planning Guidance, the 
Department has initiated an effort to assess potential hazards from 
off-range munitions and begin remediation by fiscal year 2008. This 
will include characterization of potential areas of munitions 
contamination, as well as consideration of hydrology and potential 
issues associated with drinking water supplies.

    Question 46. The National Policy Dialogue on Military Munitions, 
composed of a variety of stakeholders, resulted in several DOD 
directives and produced a focused, joint effort by the Department and 
the Armed Forces to identify and manage the environmental challenges 
facing military training, weapons testing, and disposal practices 
related to munitions. Why then has the Department of Defense decided to 
pursue legislation first rather than pursuing the recommendations of 
the National Policy Dialogue on Military Munitions?
    Response. The Department is pursuing the recommendations of the 
National Policy Dialogue, which resulted in Departmental directives and 
instructions on improving management of munitions from ``cradle to 
grave.''
    The Department continues the process of fully implementing the 
Munitions Action Plan that resulted from the Munitions Dialogue. The 
Operational and Environmental Executive Steering Committee for 
Munitions (OEESCM) continues to meet with senior leadership's 
participation and guidance. The many goals in the Munitions Action Plan 
are being implemented by numerous subcommittees who regularly report 
progress to the OEESCM full committee.
    The overall Range Readiness and Sustainment Initiative has multiple 
pieces, of which the legislation is but one.

    Question 47. Last year, Congress rejected DOD's proposals for new 
exemptions from public health and environmental laws. However, Congress 
did require the Department to ``develop a comprehensive plan for using 
existing authorities available . . . to address training constraints,'' 
including ``an assessment of current and future training range 
requirements'' and ``an evaluation of the adequacy of current 
resources.'' Congress also required the Secretary of Defense to submit 
a report describing progress made, including the plan for using 
existing authorities and an inventory of existing training ranges and 
their capabilities. What is the status of the comprehensive plan? What 
is the status of the progress report and range inventory? When can 
Congress expect to be presented with these reports?
    Response. Satisfying the requirements of Section 366 of the Bob 
Stump National Defense Authorization Act for fiscal year 2003 (P.L. 
107-314) is a high priority for the Department of Defense. First, as 
noted in my response to question 39, the Department is developing 
processes for the use of existing exemptions under Federal 
environmental laws. The March 7, 2003, Memorandum from Deputy Secretary 
Wolfowitz directs the Secretaries of the Military Departments to 
develop procedures to ensure timely evaluation of proposals for 
exemptions, considering the full range of relevant considerations, 
including the readiness impact of the environmental requirement from 
which a exemption is sought as well as reasonably practical measures 
which may be taken to mitigate he environmental impacts of proceeding 
with the readiness activity.
    Further, DOD has extensive efforts underway to better characterize 
encroachment and its effects on our ability to meet current and future 
training requirements; these efforts, however, will require some time 
to complete. In January, each service was tasked to complete a 
comprehensive response to Section 366 no later than November 15, 2003. 
The Office of the Secretary of Defense will compile a final Department 
report to be submitted to Congress with the President's fiscal year 
2005 Budget request early in calendar year 2004. This comprehensive 
report will address each of the Congress's Section 366 areas of 
concern:
      Training Range Sustainment Plan: Each of the Services was 
directed to assess current and future training range requirements; to 
evaluate the adequacy of existing training resources to meet these 
requirements; and to develop a comprehensive approach to resolving 
identified issues or deficiencies.
      Encroachment Impact Reporting: Service and OSD efforts to 
quantify encroachment effects on our installations and ranges are 
underway. The Services have been directed to include explicit data on 
encroachment effects in their reports.
      Training Range Inventory: The Services presently are 
completing detailed inventories of all their operational training 
ranges. The Department is developing the common inventory framework and 
the data definitions needed to ensure reporting consistency across the 
Services.
    Characterizing accurately the effects of encroachment on military 
ranges and developing a balanced and comprehensive plan to mitigate 
encroachment effects on military readiness are complex undertakings. 
The information being developed is of great importance, both to answer 
Congress's request and as a baseline for the Department's long-term 
range-sustainment effort.
                                 ______
                                 
  Responses of Benedict S. Cohen to Additional Questions from Senator 
                                Jeffords
    Question 48. Has any training range experienced encroachment on 
training as a result of the requirements of the Clean Air Act? If so, 
what bases and by what percent of training capability was training at 
that facility impaired?
    Response. To date, individual conformity determinations have been 
addressed on a case-by-case each resolved in a different manner. The 
planned realignment of F-14s from NAS to NAS Lemoore in California was 
only possible because of the fortuity that neighboring Castle Air Force 
Base in the same air shed had closed, creating emissions offsets. The 
same coincidence enabled the home basing of new F/A-18E/Fs at NAS 
Lemoore. The realignment of F/A-18 C/Ds from Cecil Field, Florida to 
NAS Oceana in Virginia was made possible only because Virginia happened 
to be in the midst of revising its Implementation Plan and was able to 
accommodate the new emissions. As these near misses demonstrate, under 
the requirement there is limited flexibility to accommodate readiness 
needs and DOD is barred from even beginning to take readiness actions 
until the requirement is satisfied. In these examples, the ability to 
come home base these aircraft at the desired locations was dependent 
upon the right set of circumstances, not on existing flexibility in the 
law.
    In addition, most of our readiness activities in non-attainment 
areas preceded the Act and its subsequent amendments. As long as those 
pre-existing and continuing activities remain relatively unchanged the 
Act's General Conformity prohibition does not apply. However, any 
significant changes in those continuing and recurring activities 
potentially fall within the proscriptions of the Act's General 
Conformity provision. For example, most of the weapons systems 
currently being operated in non-attainment areas were operating in 
those areas long before (in some instances for decades) the General 
Conformity requirement was enacted as part of the Act's Amendments of 
1990. Thus, if we had no need to keep our forces modern our activities 
might never be adversely impacted by the current Act.
    However, when we must replace aging legacy systems (e.g., aircraft, 
vehicles, or equipment) in a given non-attainment or maintenance area 
with new ones, the Act strictly prohibits us from replacing even one 
weapon system, such as replacing an F-15C with an F-22, without first 
demonstrating that the entire action--replacing all the F-15Cs with F-
22s at that installation--conforms to the State Implementation Plan 
(SIP). Thus, while the current Act has not yet adversely impacted our 
continuing and recurring activities, we anticipate that our 
modernization will be adversely impacted by the Act without the 
proposed extension of time to comply.

    Question 49. Have any public health assessments been done to 
ascertain the impact of the CERCLA/RCRA/CAA exemptions to the health of 
communities on and near bases?
    Response. Because there is no effect on ongoing environmental 
cleanup programs or on environmental compliance programs, there will be 
no impact to health or the environment from the RRPI legislative 
request. Known contamination migrating from operational ranges or 
otherwise threatening drinking water sources or human health has been--
and would continue to be--addressed under the Defense Environmental 
Restoration Program and installation-specific restoration plans. In the 
future, we expect our range sustainment efforts will produce 
information that will enable us to determine readily whether a 
contamination problem emanates from an operational range.
    With respect to the provisions of the RRPI related to the CAA, they 
relate primarily to military readiness activities that will occur in 
the future, such as missions realigned to bases from bases closed under 
BRAC. As part of the realignment process, the military department that 
is the proponent of the action will analyze CAA impacts as part of it's 
assessment of the environmental consequences of the action pursuant to 
the National Environmental Policy Act. However, as noted by EPA 
Administrator Carol Browner in a June 17, 1997 letter to Secretary of 
Defense William Cohen``. . . Defense sources are a small part of the 
air quality problem. . . .'' Therefore, we do no anticipate that the 
limited extension provided by the RRPI to the CAA conformity 
requirement will significantly impact neighboring communities.

    Question 50. Your agency has sought to rationalize the need for 
Clean Air Act exemptions. In one case, DOD has asserted that air 
quality regulations prohibit training with graphite smoke at Fort 
Irwin, California. In actuality, however, such graphite smoke is 
created by trailer-mounted generators that are classified as mobile 
sources under the Clean Air Act, meaning they are not the purview of 
air quality regulators. Please comment on this discrepancy.
    Response. The Ft. Irwin example was used as an example of the 
impact of Endangered Species Act requirements on readiness and 
training, not Clean Air Act restrictions. At Ft. Irwin, the US Fish and 
Wildlife Service (USFWS) is concerned about the potential dietary and 
respiratory impact of graphite smoke on the desert tortoise. The Army 
will not be able to use graphite smoke until studies are accomplished 
to show the effects on desert tortoise. The USFWS and Ft. Irwin have 
exchanged information on studies required. To date, protocols governing 
the studies have not been established.

    Question 51. What does the phrase ``under the jurisdiction, custody 
or control of the Secretary'' mean in DOD's proposed definition of 
range? Must the range be on land owned by the United States, or can a 
range be under the jurisdiction, custody or control of the Secretary if 
it is not on land owned by the United States? Provide citations to any 
cases, statutes, or regulations that you rely on in answering this 
question.
    Response. The term ``jurisdiction, custody, or control'' is a term 
of art from the world of Federal real property law and flows from the 
requirements relating to real property accountability that Federal 
property managers face. All Federal property is owned by, and title is 
in, the United States; it is not owned by any particular agency: the 
agency only manages the property. When we refer to land being owned by, 
for example, the Air Force, we are really speaking in shorthand and 
referring to real property accountability, not ownership.
    The term ``jurisdiction, custody, or control'' is an expansive 
term, applying to any property under the jurisdiction, or custody, or 
control of the Secretary concerned. This means that it could apply to 
leased property, i.e., privately owned land that we are using under a 
lease or other similar legal agreement. It would also apply to lands, 
such as national forest lands or refuge lands, that have been withdrawn 
for military use. Such lands continue to be under the jurisdiction of 
the original agency (USDA or DOI), but are currently under the 
jurisdiction, custody, and control of the DOD. The language 
``jurisdiction, custody, or control'' was used in defining the term 
``operational range'' in 10 U.S.C. sec. 2710, which directs the 
Secretary of Defense to develop an inventory of defense sites 
containing unexploded ordnance, discarded munitions, or munitions 
constituents. It is also used in DOD Directive 3200.15 in defining the 
term ``operational range'' for purposes of establishing DOD's policy on 
range sustainment.
    This language is designed to capture all lands used by DOD for 
ranges, but only while those lands are so used. For instance, private 
land leased land to DOD for use as an operational range would be 
covered by this definition, but only so long as the land continued to 
be leased by DOD and used as an operational range in accordance with 
the definition. As soon as it ceases to meet the requirements of the 
definition--under the jurisdiction, custody, or control of the 
Secretary concerned and either used for range activities or still be 
considered to be a range and not to an incompatible use--it ceases to 
be an operational range by operation of law. So, although range need 
not necessarily be owned by the U.S., it does have to be under our 
jurisdiction, custody, or control in accordance with some legal 
agreement.

    Question 52. Please provide a citation to the administrative or 
statutory authority under which the Secretary designates land or water 
on a range.
    Response. Title 10, United States Code, Sec.  3013, 5013, and 8013, 
gives the Secretaries of the Military Departments the responsibility 
and authority to carry out various functions, subject to the authority, 
direction and control of the Secretary of Defense. These functions 
include ensuring the training of personnel. In carrying out their 
training and other functions, the Secretaries are authorized to acquire 
real property, construct facilities, and formulate and execute policies 
and programs. The Federal Government has always taken the position that 
the ability to acquire and designate areas as training ranges is 
inherent in these responsibilities and functions.

    Question 53. Which specific DOD facilities will be affected by the 
suggested legislative changes? In addition, utilizing the definition of 
``operational range'' in the bill, provide a list of all operational 
ranges under the jurisdiction, custody or control of the Secretary. For 
each range, provide:
      the location and size of the range;
      documentation of the administrative or legislative 
decision designating the range;
      a notation that the range is currently being used, or the 
date on which it was last used; and
      information as to whether any portion of any range is 
located above a wellhead protection area designated by a State pursuant 
to the Safe Drinking Water Act, or has been designated byte 
Administrator of the EPA as a sole or principal drinking water source.
    Response. All operational DOD ranges and training areas used for 
readiness activities will be affected or potentially affected by the 
proposed RRPI changes.
    DOD currently lacks a complete inventory of ranges and their 
environmental issues--a concern raised as part of GAO's report on 
encroachment dated April 25, 2002. Because of these concern and as part 
of the National Defense Authorization Act for Fiscal Year 2003, 
Congress directed the Secretary of Defense to develop a plan to address 
training constraints caused by limitations on use of our land, sea, and 
air resources.
    DOD is in the process of developing a more accurate and complete 
answer to the number, location and size of the operational ranges in 
the DOD inventory. The services have all been preparing a complete 
inventory of their ranges over the past year. Based on this 
information, DOD is compiling an overall DOD range inventory that will 
put the range numbers for all the services into common terms. This 
inventory information will be part of a report to Congress due in early 
2004. This report will include:
    -An assessment of the current and future training requirements of 
their respective Service;
    -A report on implementation of a Service range inventory system;
    -An evaluation of the adequacy of current Service resources to meet 
both current and future training requirements in the United States and 
overseas;
    -A comprehensive plan to address operational constraints resulting 
in adverse training impacts caused by limitations on the use of, or 
access to, land, water, air and spectrum that are available or needed 
in the United States and overseas for training; and
    -A report on, or specific plans for, designation of an office 
within each of the military departments that will have lead 
responsibility for overseeing implementation of the plan.
    The Department's report will respond to a number of the factual 
inquiries in your question.

    Question 54. Can you tell the Committee what the DOD budget request 
for INRMP development and, most importantly, implementation is for 
2004?
    Response. DOD does not break out INRMP development and 
implementation cost projections from its overall budget requests for 
Natural Resource programs. However, as required by the Sikes Act, we do 
track how much is spent on INRMP implementation and include that 
information for previous fiscal years in our Environmental Quality 
Annual Report to Congress. For fiscal year 2100, our investment in 
INRMP implementation was $40 million. In fiscal year 2001 it was $43 
million. The fiscal year 2002 report is currently being prepared and 
should be final in the near future. For conservation (natural and 
cultural resource) programs overall, the Department has requested $143 
million for fiscal year 2004.

    Question 55. Can you identify the military facilities and the 
species that the DOD proposal, if enacted, would impact:
    Response. DOD lands host over 300 species on the Endangered Species 
list, spread among a large number of installations. While our proposal 
will only apply to species with designated critical habitat, now a 
relatively small proportion of the 300 on our lands, the number of such 
designations is projected to increase dramatically in coming years. 
This proposal is therefore perhaps most significant in terms of future 
decisions. We do not believe the proposals will adversely impact any 
species; instead we will continue to effectively manage designated T&E 
species nder approved INRMPs as opposed to critical habitat designation 
at ranges that qualify for this approach.

    Question 56. EPA estimates that 60,000+ people are dying 
prematurely annually from fine particulate pollution. What share of 
that pollution inventory comes from military facilities?
    Response. As former EPA Administrator Browner said:
    [I]t is clear that military training activities are actually among 
the smallest sources of PM2.5 in areas likely to have a fine 
particle problem. While military activities contribute some primary 
PM2.5, secondary particles such as sulfates are by far the 
largest component of PM2.5. The major sources of fine 
particles include sulfates from power plants and nitrate from power 
plants and other large combustion sources.
    .. Defense sources are a small part of the air quality problem and 
provide a unique and critical need for the Nations' security. Letter 
from Carol Browner, Administrator, Environmental Protection Agency, to 
William Cohen, Secretary of Defense 2-3 (Jun 17, 1997).
    With respect to our Clean Air Act proposal, any new emissions the 
legislation would temporarily authorize :are typically less than .5 
percent of the total emissions in air regions.
                                 ______
                                 
  Responses of Benedict S. Cohen to Additional Questions from Senator 
                                 Boxer
    Question 57. Repeatedly you argue that environmental provisions 
have reduced military readiness. But, you have been unable to provide 
examples where these laws have actually hampered military readiness. 
You have given some examples in California where training activities 
had to be modified to accommodate endangered species. Modification of 
practices does not necessarily impact our readiness. Evidence that DOD 
has had to modify its behavior is not the issue. The issue is specific 
evidence that our military readiness has been compromised. I have yet 
to see that evidence. GAO has yet to see that evidence. Where are the 
data to support your claims?
    Response. As I stated in my testimony, DOD needs to better quantify 
how encroachment affects our test and training mission, and we are 
actively working to develop a mechanism to quantify training 
constraints caused by limitations on use of land, air, and sea 
resources. However, there is a significant body of evidence that 
readiness is being adversely impacted. GAO has recognized this fact. 
While it is true that GAO raised a concern regarding DOD's ability to 
precisely quantify readiness impacts, it is important to clarify that 
its report explicitly states that encroachment is having demonstrable 
adverse effects on readiness.
    Critical habitat designation under the Endangered Species Act also 
has vital implications for readiness. One instance in which the 
damaging effects of training modifications on training has recently 
been very precisely quantified and documented is Marine Corps training 
at Camp Pendleton in California, where ``modification of practices'' 
has very clearly degraded training. Marines who trained at Marine Corps 
Base (MCB) Camp Pendleton in the 1970's and 1980's report that 
restrictions on training have increased markedly and that today's 
training is much less realistic. The study completed in March 2003 
validates these observations and found that, because of encroachment on 
maneuver corridors, training areas and landing beaches, a Marine 
Battalion Landing Team could only complete about 68 percent of the 
Marine Corps' combat training standards, for non-firing tasks at Camp 
Pendleton. Courts, based on complaints filed by environmental 
litigants, compelled the Fish and Wildlife Service to re-evaluate ``not 
prudent'' findings or many critical habitat determinations, and as a 
result FWS proposed to designate over 56 percent of the 125,000-acre 
Camp Pendleton and over 50 percent of the 12,000-acre Marine Corps Air 
Station (MCAS) Miramar. 72 percent of Fort Lewis and 40 percent of the 
Chocolate Mountains Aerial Gunnery Range were designated as critical 
habitat for various species, and analogous habitat restrictions were 
imposed on 33 percent of Fort Hood. At Fort Hood, our use of 150,000 
acres of training land for training purposes is restricted because of 
the requirement to protect habitat from any damage and the seasonal 
presence of threatened and endangered species. At the Goldwater range 
in Arizona, the Air Force already redirects or cancels numerous live-
drop missions every year to avoid jeopardizing the Sonoran Pronghorn 
even though critical habitat has not yet been designated there. In 
calendar year 2001, 32 percent of scheduled live-ordnance training 
missions' at the Goldwater range were canceled or relocated to less-
optimum training targets. The use of less-optimum targets results in 
degraded training. Designation of critical habitat for the pronghorn on 
the range would further extend these restrictions on training and could 
lead to fighter pilots with inadequate skills to safely accomplish 
potential bombing missions.
    DOD has relied upon more frequent and extensive ``work-arounds,'' 
which go beyond being an inconvenience to fundamentally undercut the 
realism and quality of training. Among the many examples:
      Aircrews taking off, recovering or dropping ordnance from 
non-tactical altitudes; examples include Naval Air Station Oceana, 
Virginia, plus many other installations;
      Navy ships not being able to use their sonar equipment 
during key training events, including training and testing activities;
      Soldiers not actually digging fighting positions or 
equipment emplacements during basic and intermediate training (Fort 
Hood and Camp Pendleton are only two of many thus restricted;
      In Hawaii, endangered species restrictions and NEPA-based 
litigation at the Army's Makua Valley Military Reservation mean that 
local units cannot meet training requirements. Specifically, units of 
the 25th Infantry Division (Light) have to travel to mainland ranges to 
complete Combined Arms Live-fire Exercises. As a result, other Hawaii-
based DOD components; Marine Corps, Army Reserve and National Guard, 
have no access to Makua.

    Question 58. Why do you need these waivers when all of these laws 
have provisions that specifically exempt military activities in the 
case of national security?
    Response. A number of environmental statutes contain no wartime 
waivers at all, such as the Marine Mammal Protection Act and the 
Migratory Bird Treaty Act. However, even for those environmental laws 
with an exemption, most statutes envisage that the national security 
exemptions are to be rarely utilized. Invocation of an exemption is 
characteristically to be based on ``the paramount interests'' of the 
United States--an exceptionally high standard. Further, most national 
security exemptions in current environmental laws provide relief that 
is brief in duration and focuses on individual activities, facilities, 
or pollution sources. Such exemptions are ill-suited to ongoing, 
widespread actions, including many categories of military readiness 
activities that individually would not meet the requisite standard for 
an exemption, but which are cumulatively essential to maintaining 
military readiness. The readiness activities we are concerned with are 
not ``one-time'' exceptional events, but part of the day-to-day 
training regimen for our forces.

    Question 59. We have long heard that this administration is a 
defender of State and local rights. However the DOD exemption proposals 
are opposed by a wide variety of State and local organizations.
    Is it correct that the National Association of Attorneys General 
passed a resolution in March opposing DOD's exemptions from 
environmental laws?
    Response. That is correct. However, the resolution assumed a number 
of things about our legislation that DOD did not in fact intend, 
including a suggestion that the RRPI would preempt State and EPA 
authority over a broad range of sites or activities, including DOD non-
readiness activities, DOE facilities, defense contractor sites, and up 
to 16 million acres of former ranges. In reality, the RRPI provisions 
related to munitions apply only to test and training at operational 
ranges under the jurisdiction, custody, or control of the Department of 
Defense. In any case, the Department and EPA have subsequently 
completely revised our military munitions proposal in consultation with 
State officials to clarify the limited scope of our legislation 
(attached). To the best of our knowledge, neither NAAG nor any other 
State officials' organization has expressed views on this new language.

    Question 60. Is it correct that the State and local air pollution 
regulators oppose DOD's exemptions from environmental laws?
    Response. You are correct that STAPPA-ALAPCO has expressed concerns 
about our Clean Air Act proposal. This concern is based on the 
assumption that the Department can use Section 118 of the Clean Air Act 
to ask for an exemption based on ``paramount interest of the United 
States to do so''. The Department believes that it is not good public 
policy to ask for exemptions to permit necessary activities for 
military readiness. We believe that it is more prudent to address the 
root problem. Again, opposition is also based on the assertion that DOD 
seeks to exempt itself from environmental laws, and that opposition is 
also misplaced. Although I made the statement in my written testimony 
that DOD does not seek, and the RRPI.proposal does not contain, 
provisions for exemptions from environmental laws, it bears repeating 
here.

    Question 61. Is it correct that the State and local water quality 
regulators oppose DOD's exemptions from environmental laws?
    Response. We are aware that officers of the Association of 
Metropolitan Water Agencies, American Water Works Association, National 
Association of Water Companies, and the Association of California Water 
Agencies signed a letter in opposition to certain provisions of the 
RRPI. Again, however, we believe that this opposition is based on 
assumptions about RRPI that DOD does not intend. For example, their 
concern that human health and environmental affects would have to occur 
beyond the boundaries of an operational range before response action 
could be taken does not reflect DOD's intentions. As noted in answers 
to previous questions, Federal and State authority to act to protect 
drinking water sources under the Safe Drinking Water Act are completely 
unaffected. Similarly, the RRPI expressly preserves EPA's authority to 
respond to imminent and substantial endangerment issues from munitions 
and constituents on range pursuant to CERCLA section 106. DOD is 
actively engaged in an ongoing dialog with these and other stakeholders 
to clarify our intentions, and is revising our proposal to address 
their concerns.

    Question 62. Is it correct that Ingrid Lindemann, Councilmember 
from Aurora, Colorado, and representative of the National League of 
Cities finds that ``the ramifications of a blanket exemption for 
military facilities and activities from such laws will be serious and 
untenable at the local level''?
    Response. Ms. Lindemann testified to that effect before this 
Committee. For many of the same reasons noted in the previous three 
responses, we believe she has misunderstood the scope and intent of the 
RRPI. In addition to my responses to the previous questions, it bears 
special note that Ms. Lindemann's written testimony suggests her belief 
that the RRPI proposals related to RCRA and CERCLA would apply to 
ranges that have been transferred. In fact, she makes special note that 
our RCRA proposal would impact munitions disposal and cleanup at an 
estimated 16 million acres of transferred ranges around the country. 
This provision does not apply to transferred ranges. This is clearly 
not the impact of the RRPI proposal since it specifically applies only 
to ranges currently under the jurisdiction, custody and control of DOD, 
not to ranges that have transferred out of DOD control.

    Question 63. Does it concern the DOD that the there is widespread 
local and State opposition to DOD's proposed exemptions?
    Response. DOD is very concerned that there is opposition to our 
proposal. A measure of our concern is the public outreach effort we 
have undertaken regarding the RRPI initiative. We believe that engaging 
in dialog with stakeholders regarding the purpose of the initiative 
will serve to convince those interested in both the environment and 
national defense that the RRPI is a narrow, targeted and reasonable 
approach to balancing military readiness and environmental protection. 
In addition, as noted above, DOD and EPA are extensively revising 
several of our proposals to address these concerns. DOD has been 
gratified by increasing State and local support for our proposals.

    Question 64. The DOD exemption proposal before us would exempt DOD 
from many of the environmental laws and regulations that apply to the 
private sector. Is this administration abandoning the longstanding 
policy that the Federal Government, including DOD, should be held to 
the same environmental enforcement standards, enforcement and rules as 
the private sector?
    Response. DOD is subject to all Federal environmental laws. The 
changes we seek 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. The military also has a unique 
responsibility to prepare for and win armed conflicts--an activity 
unlike any private organization, State, or local government--and has 
land specially set aside to test and train for that purpose. The 
changes we propose are narrowly focused on that testing and training, 
i.e., on ``military readiness activities.''
    Further, not only are the activities that the RRPI focuses on 
unique to the military, the majority of the environmental requirements 
that RRPI addresses do not impact the private sector in the same manner 
as they affect Federal agencies, such as DOD. The conformity 
requirements of the Clean Air Act have no private sector equivalent. 
Critical habitat designation under the ESA can have mission-stopping 
impacts on military installations, but has more limited consequences on 
private lands. The flexibility given to commercial fisheries through 
Incidental Take Reduction Plans under the Marine Mammal Protection Act 
is not available to DOD.

    Question 65. At how many current, and at how many former DOD sites 
across the Nation are Superfund or RCRA being used to manage cleanup?
    Response. The Defense Environmental Restoration Program (DERP) 
contains 24,869 sites at active and BRAC installations and 4,827 
Formerly Used Defense Sites (FUDS). 2,307 sites are in the Military 
Munitions Response Program (MMRP) category of the DERP. 616 MMRP sites 
are at active and BRAC installations and 1,691 are FUDS. The 
Department's five environmental restoration accounts (Army, Navy, Air 
Force, FUDS and Defense-wide) and the BRAC account are the source of 
funding for cleanup requirements at these sites. The Resource 
Conservation and Recovery Act (RCRA) and Comprehensive Environmental 
Response, Compensation, and Liability Act (CERCLA) proposals contained 
in the Department's Readiness and Range Preservation Initiative (RRPI) 
only apply to operational ranges and, if enacted, will not have any 
impact on DOD's current DERP cleanup requirements.

    Question 66. How many of these sites have perchlorate 
contamination?
    Response. There are no DOD sites under CERCLA 106 orders for 
perchlorate. However, DOD is concerned and is studying the perchlorate 
issue.

    Question 67. At how many current, and at how many former, DOD sites 
is the Safe Drinking Water Act being used to manage cleanups?
    Response. The only site where SDWA is being used to manage a 
cleanup is at the Massachusetts Military Reservation on Cape Cod, 
Massachusetts.

    Question 68. At how many of the current, and at how many of the 
former, Superfund and RCRA sites would partial or total cleanup be 
waived were the recommendations before us now already in place?
    Response. None.

    Question 69. At how many sites is EPA using its imminent and 
substantial endangerment authority to oversee CERCLA cleanups? How many 
of these are DOD sites? How many of these sites have perchlorate 
contamination? How many of these sites are DOD perchlorate 
contamination sites?
    Response. EPA has never issued a unilateral administrative order 
pursuant to CERCLA Section 106 (EPA's imminent and substantial 
endangerment authority) to a DOD facility. We must defer to EPA 
regarding the number of such orders it has issued for non-DOD 
facilities.
                                 ______
                                 
  Responses of Benedict S. Cohen to Additional Questions from Senator 
                                  Reid
    Question 70. Is it DOD's position that DOD is bound by State safe 
drinking water standards where there is no Federal standard in place? 
Specifically, is DOD bound by a State safe drinking water standard for 
perchlorate even if no Federal safe drinking water standard has been 
promulgated?
    Response. The answer to both of these questions is yes.

    Question 71. As you know, the environmental laws within the 
jurisdiction of the Senate Environment Committee and amended by the 
Department's proposal each contain case-by-case exemption procedures. 
Please list each case involving a Nevada operational range (as 
currently defined by the Department) where such exemptions have been 
sought under each of these laws (i.e., CAA, RCRA, CERCLA, and ESA), the 
reason for the request, and the disposition of the request.
    Response. No exemptions have been sought under either the CAA, 
CERCLA, or the ESA. Section 6961 (a) of RCRA provides that the 
President of the United States can exempt ``any solid waste management 
facility of any department, agency, or instrumentality in the executive 
branch from compliance with such a requirement if he determines it to 
be in the paramount interest of the United States to do so.'' Since 
1998, Presidents Clinton and Bush have annually exempted the United 
States Air Force's operating location near Groom Lake, Nevada, from any 
Federal, State, interstate, or local provision respecting control and 
abatement of solid waste or hazardous waste disposal that would require 
the disclosure of classified information to any unauthorized persons.
    Presidents Clinton and Bush have found that it is in the paramount 
interest of the United States to exempt the facility (the subject of 
litigation in Kasza V. Browner (D. Nev. CV-S-94795-PMP) and Frost v. 
Perry (D. Nev. CV-S-94-714-PMP)), from any applicable requirement for 
the disclosure to unauthorized persons of classified information 
concerning that operating location. The Presidential orders have stated 
that nothing contained therein is intended to: (a) imply that in the 
absence of such a Presidential exemption, RCRA, or any other provision 
of law, permits or requires disclosure of classified information to 
unauthorized persons; or (b) limit the applicability or enforcement of 
any requirement of law applicable to the Air Force's operating location 
near Groom Lake, Nevada, except those provisions, if any, that would 
require the disclosure of classified information.
    This annual exemption is an excellent illustration of the serious 
limitations of exemptions. Because of one lower court decision which 
both the Clinton and Bush Administrations regarded as clearly 
erroneous, a decision memorandum must annually be sent up the chain 
through the Chief of Staff of the Air Force to the Secretary of the Air 
Force, then through the Defense Department General Counsel to the 
Deputy Secretary of Defense, then to the National Security Advisor, and 
the Counsel to the President, and finally to the President. Such a 
cumbersome, months-long process is obviously completely inadequate to 
safeguard widespread, ongoing test and training activities that occur 
on virtually every active range.

    Question 72. The Clean Air Act exemptions sought by the Department 
would remove clean air protections for at least 3 years for communities 
surrounding operational ranges, a term which it appears is within the 
discretion of the Department to modify or expansively interpret to 
include ranges not in current operation. It further provides that 
Department air emissions newly exempt under the proposal need not be 
offset by other pollution sources, thereby assuring a net increase of 
emissions localized around operational ranges. Please explain what 
measures the Department intends to take to protect the communities 
surrounding those facilities from harmful exposure to ozone, 
particulate matter, carbon monoxide and the other criteria air 
pollutants.
    Response. The Department is not seeking to remove existing Clean 
Air Act protections. Nor does the proposal alter the ultimate 
obligation on the part of the DOD installation to conform its military 
readiness activities to the SIP. The legislation only provides an 
extension of time to demonstrate that conformity. Well over 90 percent 
of the sources of criteria pollutant emissions in a given non-
attainment or maintenance area are usually private or non-Federal 
sources not subject to CAA Sec. 176(c)'s conformity provision. The DOD 
therefore has limited ability to protect surrounding communities from 
the major source of harmful air emissions. With respect to our own 
emissions, Clinton Administration EPA Administrator Carol Browner 
recently affirmed that ``Defense sources are a small part of the air 
quality problem . . . .'' Letter from Carol Browner, Administrator, 
Environmental Protection Agency, to William Cohen, Secretary of Defense 
2-3 (Jun 17, 1997). Your concern over emissions associated with 
``ranges not in current operation'' is misplaced since military test 
and training activities that might generate emissions will by 
definition not occur on such inactive ranges; should other military 
readiness activities besides test and training occur on such inactive 
ranges, they would characteristically result in the range being 
transferred from inactive range status to non-range status. (This is 
because one of the tests for an inactive range is that it cannot have 
been put to a use inconsistent with future use as a range.) Finally, 
the environmental planning processes required by the National 
Environmental Policy Act (NEPA) will still be implemented for new 
military readiness activities, and that NEPA process will identify-
those opportunities that the installation will have to mitigate or 
reduce its air pollutant emissions.

    Question 73. The small community of Fallon, Nevada, is currently 
the subject of the first government-led cancer cluster investigation in 
over 20 years. In the past several years, 16 children have fallen ill 
with leukemia. Three children have died.
    A. Under the Department's proposal, is it the case that the Fallon 
Naval Air Station would be exempt from Clean Air Act compliance for at 
least-three years?
    B. How would the Department propose to assure that residents of 
Fallon are not exposed to harmful levels of air pollution from the Air 
Station during that time period?
    C. Similarly, is it the case that under the Department's proposal, 
contamination from the Kinder-Morgan jet fuel pipeline would similarly 
be exempt from regulation under RCRA and cleanup under CERCLA?
    If you do not believe that exemptions would apply in cases A, B, or 
C, please provide the rationale--based on the specific language of the 
Department's proposal--which would ensure that these laws applied to 
activities at the Air Station.
    Response. A. Our CAA provision does not apply to emissions 
associated with non-military readiness activities like construction, 
power generation, wastewater treatment, industrial processes, or even 
activities in direct support of military readiness like aircraft 
fueling and maintenance. DOD's proposal provides the following 
definition of ``military readiness activities":
    The term ``military readiness activities'' includes all training 
and operations that relate to combat, and the adequate and realistic 
testing of military equipment, vehicles, weapons, and sensors for 
proper operation and suitability for combat use. The term does not 
include the routine operation of installation operating support 
functions, such as administrative offices, military exchanges, 
commissaries, water treatment facilities; storage, schools, housing, 
motor pools, laundries, morale, welfare and recreation activities, 
shops, avid mess halls, nor the operation of industrial activities, or 
the construction or demolition of such facilities.
    In addition, no existing military readiness activity at Fallon is 
subject to our proposal. The RRPI Clean Air Act provision provides 
``[i]n all cases in which the [conformity] requirements of section 
176(c) of the Clean Air Act would have applied to proposed military 
readiness activities, the Department shall not be prohibited from 
engaging in such military readiness activities, but shall . . . ensure 
that military readiness activities conform with the requirements of 
section 176(c) within 3 years of the date new activities begin.'' 
(emphasis added). Only new military readiness activities would receive 
a temporary grace period for compliance with one provision of the Act. 
Finally, our proposal does not modify any provision of the Clean Air 
Act other than the conformity provision of section 176(c). All other 
provisions are unaffected; if an activity requires an air permit, must 
undergo new source review, or meet any other requirement of the CAA 
other than conformity, that requirement must still be met.
    B. As described above, the range of activities at NAS Fallon that 
would be subject to our provision is quite small. Indeed, unless and 
until new activities occur at Fallon, no activities there would be 
covered, and there would be no increase in emissions attributable to 
our provision. Even should new military readiness activities occur, 
they are likely to generate only small increases in emissions, as 
discussed elsewhere in my testimony. As Carol Browner, Administrator of 
EPA during the Clinton Administration, has noted, ``Defense sources are 
a small part of the air quality problem `` Letter from Carol Browner, 
Administrator, Environmental Protection Agency, to William Cohen, 
Secretary of Defense 2-3 (Jun 17, 1997)
    C. It is not the case that the Kinder-Morgan jet fuel pipeline will 
be exempt from regulation under our proposed revisions to RCRA and 
CERCLA. Our RCRA and CERCLA provisions apply only to ``military 
readiness activities.'' As noted above, such activities do not include 
``the routine operation of installation operating support functions, 
such as . . . the operation of industrial activities . . . .'' The 
operation of a fuel pipeline clearly falls outside the scope of the 
definition of a ``military readiness activity'' such language.

    Question 74. As you may know, the 1,375 square mile Nevada Test 
Site has been a critical facility,--for the training of our military 
and the testing of weapons. The site was first established in 1940 as 
the Las Vegas Bombing and Gunnery Range. In 1950, the search for a 
continental U.S. site for nuclear testing led to the establishment of 
the Nevada Test Site by President Truman in roughly the same location. 
From 1951 to 1992, approximately 928 nuclear and related tests were 
conducted at NTS.
    Following the moratorium on nuclear testing in 1992, the site has 
continued to be critical to the training of our military personnel and 
testing of munitions. The NTS also hosts a Hazardous Materials Spill 
center where chemicals and other toxic substances are released into the 
air and ground to test their behavior and cleanup methods. Further, NTS 
hosts a facility for the testing and cleanup of biological 
contaminants. Finally, the NTS is now one of the nation's premier 
training centers for counter-terrorism in the United States.
    On a recent visit to NTS, officials indicated that NTS has no 
difficulties conducting its operations within the confines of the 
current environmental laws and the case-by-case exemptionr procedures 
those laws afford. NTS obtains permits under the CAA and other laws to 
conduct its training and testing of munitions and chemicals. When 
endangered desert tortoises are discovered on NTS, they are relocated.
    Perhaps more than any other site in the nation--considering its 
nuclear, chemical and biological testing history and its extensive 
training activity--NTS conducts a broad range of activities that 
implicate the environmental laws that are the subject of the Department 
of Defense proposal, yet has demonstrated its ability to use the 
exemptions provided within them to enable training and testing to 
continue unhindered. That ability is not a function of the remoteness 
of the NTS, as the exemptions relate to activities conducted on the 
site.
    If a facility like NTS can conduct such a broad range of activities 
within the ambit of the , environmental laws the Department would amend 
in the name of readiness, why is the Department unable to replicate the 
NTS example at its other facilities? Has the Department sought the 
assistance of NTS officials in assisting at other operational ranges?
    Response. The Department does not seek to exempt its readiness 
activities from environmental laws; rather, it seeks to clarify and 
confirm existing regulatory policies that recognize the unique= nature 
of our activities. The RRPI proposal codifies and extends EPA's 
existing Military Munitions Rule; confirms the prior Administration's 
policy on Integrated Natural Resource Management Plans and critical 
habitat; codifies the prior Administration's policy on ``harassment'' 
under the Marine Mammal Protection Act; ratifies longstanding State and 
Federal policy concerning regulation under RCRA and CERCLA of our 
operational ranges; and gives States and DOD temporary flexibility 
under the Clean Air Act. The proposals are of the same nature as the 
relief Congress provided under the Migratory Bird Treaty Act last year, 
which codified the prior Administration's position on DOD's obligations 
under the Migratory Bird Treaty Act. The Department is, and will 
remain, subject to precisely the same regulatory requirements as the 
private sector when we perform the same types of activities as the 
private sector. We seek alternative forms of regulation only for the 
things we do that have no privatesector analogue: military readiness 
activities.
    Specifically with respect to NTS, the Department is proud of the 
strong environmental program there and the success it has achieved in 
accomplishing its military mission while protecting the environment. 
The Department strongly believes that NTS, like other installations, 
would face critical problems executing its vital military mission were, 
for example, the Fish and Wildlife Service compelled by litigation to 
designate critical habitat on the facility notwithstanding its 
excellent Integrated Natural Resource Management Plan; or were 
litigants able to secure court decisions that the test and training on 
the facility were actually waste management activities under RCRA or 
``releases'' under CERCLA, triggering crippling regulatory 
requirements; or State and Federal officials denied the flexibility 
under the Clean Air Act to temporarily accommodate modest emissions 
increases resulting from new military readiness activities. Our RRPI 
proposals simply seek to assure that these destructive outcomes, which 
are already threatening bases across the country, do not occur at NTS 
or elsewhere.

    Question 75. The Department's RCRA proposal at section 
2019(a)(2)(D) provides that constituents of munitions are not solid 
wastes if they ``are deposited, incident to their normal and expected 
use, of an operation range, and are promptly rendered safe or 
retrieved.''
    A. Is the standard ``promptly rendered safe or retrieved'' a legal 
term of art or otherwise defined in environmental law or other Federal 
laws?
    B. If not, what does this term mean?
    C. Who will determine whether a munition or constituent thereof has 
been rendered ``promptly rendered safe or retrieved''? What role, if 
any, does the Department anticipate for the expert agency in these 
matters--EPA--to have over making this judgment?
    D. Does a munition, etc., need to originate from an operational 
range to be covered by the exclusion envisioned in section 
2019(a)(2)(D)?
    Response. A. Yes, this standard is taken from EPA's Military 
Munitions Rule, which states ``a used or fired munition is a solid 
waste . . . if the munition lands off-range and is not promptly 
rendered safe and/or retrieved.'' 40 C.F.R. 266.202(d). The Munitions 
Rule was adopted by the Clinton Administration in 1997 after extensive 
consultation among Federal agencies, State regulators, and other 
stakeholders. The rule has subsequently been adopted by over 30 States.
    B. See A above.
    C. The status of off-range fired munitions is an explosives safety 
determination. The fact that the item may have malfunctioned in the 
course of its use raises concerns first for the safety of the public 
and the technicians whose job it is to eliminate the explosives safety 
hazard. The Military Munitions Rule explicitly acknowledges the role 
that explosives or munitions emergency response personnel and the 
Department of Defense have under such circumstances. See 40 CFR 260.10; 
262.10(i); 266.201';'262.20(f); 263.10(e); 264. 1 (g)(8)(i)(D); and 
265. 1 (c)(1 1)(i)(D). Likewise, the National Contingency Plan 
recognizes DOD as the ``removal response authority with respect to 
incidents involving DOD military weapons and munitions or weapons and 
munitions under the jurisdiction, custody, or control of DOD.'' 40 CFR 
300.120(d). In each instance, the determination as to explosives safety 
matters rests with DOD, while EPA provides regulatory oversight.
    D. As the portion of our proposal you have quoted above states the 
munitions must be, ``deposited . . . off an operational range.'' 
Characteristically, such munitions would also originate on-range, in 
the sense that the source of the munition--e.g., a rifle, artillery 
piece, or aircraft would be on-range at the time the munition was 
fired. However, this provision would also apply were the platform for 
the munition delivery was off-range at the time of firing. For example, 
if naval gunfire from a ship located off-range landed outside the range 
that was its target, this provision would nevertheless apply were the 
munition promptly rendered safe or retrieved. This would also be the 
case if a long-range stand-off munition were fired from and off-range 
aircraft and landed outside the range that was its intended target.
    As noted above, this treatment of off-range munitions was adopted 
by EPA under the Clinton Administration and has subsequently been 
adopted by a large majority of the States. It would therefore continue 
to apply to our ranges and munitions whether or not our RRPI proposal 
is adopted.

    Question 76. The Department's RCRA proposal at section 2019(a)(3) 
provides ``(3) Nothing in paragraphs (1) and (2) hereof affects the 
legal requirements applicable to explosives, unexploded ordnance, 
munitions, munition fragments, or constituents thereof that have been 
deposited on an operational range once the range ceases to be an 
operational range.''
    What standards and process does the Department use and apply to 
determine whether a range ceases to be ``operational''? Please provide 
me with a list of examples of ranges that were declared by the 
Department to be no longer operational.
    Response. Although the precise details of the processes applied by 
each military department to determine whether a range is no longer an 
operational range may differ, the basic underlying standard is as 
represented by the legislative proposal of the Department to define 
``operational range''. That definition requires that a range be used 
for range activities or, if not currently used for range activities, be 
capable of being and intended to be used for range activities; it also 
requires that the range be under the jurisdiction, custody, or control 
of the Secretary concerned. If an operational range is put to a use 
that is incompatible with range activities or if it leaves DOD control, 
it ceases to be an operational range. Because the term ``operational 
range'' is relatively new, there is no example of a range being 
declared as non-operational. There are, however, numerous examples of 
ranges being closed, which is the prior terminology used when an 
operational range ceased to be an operational range. In recent times, 
many of those ranges were the result of base realignment and closure 
actions, such as the artillery range at the former Fort Ord in 
California. Other ranges were closed due to their no longer being 
either necessary because of changes in mission or viable because of 
encroachment. Many of these ranges qualify as Formerly Used Defense 
Sites (FUDS) because they were closed many years ago.

    Question 77. The Department's RCRA proposal at section 2019(a)(3) 
provides ``(3) Nothing in paragraphs (1) and (2) hereof affects the 
legal requirements applicable to explosives, unexploded ordnance, 
munitions, munition fragments, or constituents thereof that have been 
deposited on an operational range once the range ceases to be an 
operational range.''
    Should the Department face a significant contamination problem at 
an operational range that it no longer needs to maintain for training 
and readiness (or other DOD purpose), what incentive does the 
Department have to declare that range non-operational and thereby 
trigger cleanup responsibility under RCRA?
    Response. Both the existing Military Munitions Rule definition of 
``inactive range'' and our proposed statutory definition of that term 
provide a strong incentive for DOD not to maintain unneeded inactive 
ranges, since those definitions require the Department to avoid any 
current use of the land that would be inconsistent with its future use 
as a range. EPA and DOD carefully considered this issue during the 
promulgation of the MMR under the Clinton Administration, and concluded 
that the MMR's three-part test for when a range was inactive was a 
sufficient safeguard against unnecessarily maintaining ranges in 
inactive status to avoid incurring cleanup costs.
    By the same token, your question presumes that DOD has little, or 
no obligation or incentive to clean up contamination on inactive 
ranges. DOD policy reflects our understanding that it is more cost-
effective to clean up contamination on both active and inactive ranges 
before it has migrated than to wait until it crosses the range 
boundary. As part of its fiscal year 2004 Defense Planning Guidance, 
the Department has initiated an effort to assess potential hazards from 
offrange munitions and begin remediation by fiscal year 2008. This will 
include characterization of potential areas of munitions contamination, 
as well as consideration of hydrology and potential areas associated 
with drinking water supplies. Our RRPI proposal explicitly waives its 
protections in the event of off-range migration of munitions 
constituents, providing a powerful incentive for the Department to 
proactively cleanup ranges to prevent such migration and the loss of 
the RRPI protections. These incentives are powerfully reinforced by 
existing State and Federal authority under the Safe Drinking Water Act 
(SDWA), which the RRPI does not affect. Under Section 300i of the SDWA, 
EPA may issue such orders as it deems necessary to protect against not 
only actual but also ``likely'' contamination of drinking water 
sources, as the Agency has done at Massachusetts Military Reservation. 
Finally, RRPI preserves EPA's similar order authority under Section 106 
of CERCLA. All of these authorities and policies provide powerful 
incentives for DOD to assess and cleanup contamination on even inactive 
ranges.

    Question 78. The Department's RCRA proposal at section 2019(a)(3) 
provides ``(3) Nothing in paragraphs (1) and (2) hereof affects the 
legal requirements applicable to explosives, unexploded ordnance, 
munitions, munition fragments, or constituents thereof that have been 
deposited on an operational range once the range ceases to be an 
operational range.''
    Would there by any way to legally complete the Department to 
declare the site nonoperational and thereby trigger cleanup 
responsibility under RCRA?
    Response. DOD believes that litigants could not force the 
Department to designate a range as nonoperational. However, as 
discussed below, citizens, EPA, and States and localities could compel 
cleanup, even of an operational range, where contamination was 
threatened. Moreover, EPA would retain the right to use the existing 
interagency process if it believed DOD was improperly categorizing a 
range as inactive to avoid cleanup costs.

    Question 79. The Department's RCRA proposal at section 2019(a)(3) 
provides ``(3) Nothing in paragraphs (1) and (2) hereof affects the 
legal requirements applicable to explosives, unexploded ordnance, 
munitions, munition fragments, or constituents thereof that have been 
deposited on an operational range once the range ceases to be an 
operational range.''
    Could a community surrounding such a facility legally compel in any 
manner the cleanup of that site?
    Response. Under our RRPI proposal, a community or citizen could 
invoke RCRA remedies to address any contamination migrating off-range 
that presented an imminent and substantial threat to them hich DOD was 
not addressing under CERCLA.

    Question 80. Similarly, the Department's CERCLA proposal excludes 
from the definition of release--the legal trigger for action under 
CERCLA--``the deposit or presence on an operational range of ny 
explosives, unexploded ordnance, munitions, munitions fragments, or 
constituents thereof t at are or have been deposited thereon incident 
to their normal and expected use and remain thereon.''
    Should an operational range posing contamination problems become 
unnecessary or unable to be used for training and readiness (or other 
DOD purpose), what incentive would the Department have to declare that 
range non-operational and thereby trigger cleanup responsibility under 
CERCLA?
    Response. Please see my answer to Question 77. The same incentives 
would exist in this case as well.

    Question 81. Similarly, the Department's CERCLA proposal excludes 
from the definition of release--the legal trigger for action under 
CERCLA--``the deposit or presence on an operational range of any 
explosives, unexploded ordnance, munitions, munitions fragments, or 
constituents thereof that are or have been deposited thereon incident 
to their normal and expected use and remain thereon.''
    Would they be any way to legally compel the Department to declare 
the site nonoperational and thereby trigger for force cleanup 
responsibility under CERCLA?
    Response. Please see my answer to Question 78.

    Question 82. Similarly, the Department's CERCLA proposal excludes 
from the definition of release the legal trigger for action under 
CERCLA--``the deposit or presence on an operational range of any 
explosives, unexploded ordnance, munitions, munitions fragments, or 
constituents thereof that are or have been deposited thereon incident 
to their normal and expected use and remain thereon.''
    Could a community surrounding such a facility legally compel in any 
manner the cleanup of that site?
    Response. Please see my answer to Question 79.

    Question 83. Please describe the Department's definition of 
``operational range,'' the authority for such definition, and what 
constraints--if any--exist on the Department modifying this definition.
    Response. The proposed definition of ``operational range'' is taken 
from the already enacted definition of the term in 10 U.S.C. 2710. The 
definition in 10 U.S.C. 2710 was designed specifically for that section 
and, in transposing the definition to apply to all of Title 10, it was 
necessary to slightly alter it to make reference to the ``Secretaries 
concerned'' because operational ranges are real estate under the 
jurisdiction, custody, and control of the Military Departments.
    The proposal was recently further revised to move the requirement 
that a range be ``under the jurisdiction, custody, or control'' to the 
beginning of the definition so that this important qualification would 
apply to both active and inactive ranges, rather than the original 
version which only had the qualifier apply to inactive ranges. It was 
not the intent of the Defense Department to have ``under the 
jurisdiction, custody, or control'' apply only to inactive ranges, and 
the U.S. Environmental Protection Agency noted that the original 
language would allow the definition to apply to privately controlled 
active ranges. Since it is the intention of the Defense Department that 
the definition only apply to DOD ranges and not to those of any private 
entity, such as a Defense contractor, we rearranged the wording to 
ensure there was no confusion. As currently proposed, the language 
clearly provides that an operational range must, in all instances, be 
under the jurisdiction, custody, or control of the Defense Department. 
This excludes the possibility of a private entity claiming that a range 
under its control is an operational range.
    As background, the term ``operational range'' was developed within 
the Defense Department to allow us to clearly delineate the difference 
between our ranges and all other property. In the past, various terms 
had been applied to refer to various types of properties, primarily in 
the context of the presence of unexploded ordnance (UXO). Such terms 
included ``active range,'' ``inactive range,'' ``closed range,'' 
``transferred range,'' and ``transferring range.'' These terms were not 
particularly accurate and had the significant defect that they only 
referred to lands that are or once were ranges. It happens that UXO can 
be located on many types of properties and many of those properties 
were never ranges. It was the desire of the Defense Department to 
ensure that in discussing the subject of UXO, we included all locations 
where it might be located, not just ranges and former ranges. So it was 
our intention to adopt terms that would make a clear distinction 
between those lands currently used as ranges and all other properties, 
whether those properties were former ranges or not and without regard 
to whether those properties were still military lands.

    Question 84. Under the Department's proposal, what authority would 
exist to address perchlorate contamination of groundwater before 
contaminated groundwater emanated from the confines of an operational 
range? If there are other such authorities, may they be invoked by 
States or by concerned citizens?
    Response. The Department of Defense is committed to addressing any 
contamination that poses an unacceptable risk to human health and the 
environment. If, for any reason, perchlorate in the groundwater within 
the confines of an operational range poses an imminent and substantial 
danger to the public health or welfare, the DOD has the responsibility 
to take appropriate action under section 104(a)(1) of CERCLA. 
Additionally, under the Safe Drinking Water Act (SDWA), the EPA 
Administrator is empowered to take action necessary to protect the 
public health from an imminent and substantial endangerment created by 
a contaminant that is present in, or likely to enter, an underground 
source of drinking water. EPA has used the latter authority in issuing 
an order at the Massachusetts Military Reservation to address 
perchlorate contamination in the groundwater.

    Question 85. In questioning during the hearing, Senator Inhofe 
indicated that the exemptions in our environmental laws must be granted 
by the President. You seemed to agree with him in that assessment. Is 
there any reason why the President couldn't delegate this 
responsibility to a lower official?
    Response. I believe the President could delegate his authority in 
accordance with title 3 United States Code, sections 301 and 302. 
Nevertheless, even a delegation of all such authorities to the 
Secretary of Defense does not satisfy the concerns addressed by the 
RRPI initiative. Most national security exemptions in current 
environmental laws provide relief that is brief in duration and focused 
on individual activities, facilities, or pollution sources. Such 
exemptions are illsuited to ongoing, widespread actions, such as 
military readiness activities that are long-term, continuous, and 
ubiquitous--such as the live-fire test and training that occurs at 
virtually all our ranges.

    Question 86. Please provide each example where P.L. 105-85 has been 
invoked by the Secretary of Defense. That law gives the Secretary of 
Defense the general authority to suspend any administrative action that 
would have significant adverse effect on the military readiness of any 
of the armed forces . . . ``10 U.S.C. Sec 2014
    Response. The Secretary has never invoked this authority, for two 
reasons. First, the provision largely codifies the inherent ability 
executive branch officials have always possessed to consult concerning 
proposed actions and, in the event of unresolved disputes, to alleviate 
such disputes for resolution. The Defense Department engages in such 
consultation on a daily basis, as it did prior to enactment of this 
authority. The specific innovation included in Section 2014 has proven 
of limited use because it permits DOD to suspend other agencies' 
administrative actions for at the most 5 days. Experience has shown 
that resolution or elevation of disputes of any complexity cannot be 
accomplished on such a time schedule. For example, DOD's work with the 
Interior Department to resolve disputes over proposed critical habitat 
designation at Camp Pendleton and at NAS Miramar consumed months of 
work at all levels of both agencies.

    Question 87. You noted in testimony before the committee that 10 
U.S.C. Sec 2014 provides the Department no defense in litigation. 
Please provide a list of active litigation concerning the laws the 
department seeks to amend and a brief summary describing its subject. 
With respect to resolved litigation, please describe the disposition of 
that litigation. (You indicated in your testimony that no litigation 
thus far has been resolved against the Department.) Please distinguish 
between litigation brought under each of the four environmental laws 
(CAA, RCRA, CERCLA, and ESA) implicated by the Department's proposal 
(and in EPW operations under other authorities (State law, local land 
use law, etc.) and for the purpose of limiting noise and munitions 
training.
    Response. In response to an inquiry from the Chairman of the 
Committee on Government Reform, the Department of Justice prepared case 
summaries of actions bought against the Department of Defense under 
various environmental statutes (attached). As you know, the Department 
of Justice represents Federal agencies in litigation brought against 
them. We have referred'these summaries to the military departments for 
their review and assessment to determine how the RRPI would impact 
their outcome, and for supplementation as appropriate.

    Question 88. Please provide a list of each Defense Department 
operational and non-operational range site, Formerly Used Defense Site 
(FUDS), joint contractor-DOD owned sites where perchlorate production 
and/or contamination exists. What estimate, if any, has DOD conducted 
concerning the cleanup costs of such contamination?
    Response. Efforts to survey for perchlorate occurrence are 
described in EPA's Perchlorate Environmental Contamination: 
Toxicological Review and Risk Characterization, dated 16 Jan 02. The 
document is available at the following web site:
    http://cfpub.epa.p,ov/ncea/cfm/recordisplav.cfm?deid=24002 Figure 
1-3 identifies locations of specific perchlorate manufacturers or other 
users identified through responses to EPA Information Requests from 
current manufacturers and through investigations by State and local 
authorities, and Figure 1-4 identifies locations of reported 
environmental releases of perchlorate to groundwater, surface water, or 
soil. Table 1-1 shows occurrences and potential sources of perchlorate 
releases to the environment as of November 2001, including DOD 
locations. Cleanup costs will depend upon the cleanup standards 
established by State or Federal regulatory agencies, and could reach 
billions of dollars, representing a significant portion of the DOD 
budget.
    EPA's assessment guidance does not establish cleanup standards. The 
1999 Interim assessment guidance specifically recommends that ``risk 
assessors and risk managers continue to use the standing provisional 
RfD range of 0.0001 to 0.0005 mg/kg-day for perchlorate related 
assessment activities.'' In absence of site specific risk assessment 
factors, this provisional RfD range can be converted to a preliminary 
remediation goal of 4-18 ppb, and is a screening tool and/or point of 
departure in performing site-specific risk assessment activities. For 
example, at cleanups conducted pursuant to CERCLA, the NCP (40 CFR 
300.430(e) (2) (i)) states, ``Preliminary remediation goals should be 
modified, as necessary, as more information becomes available through 
the RI/FS:'' Under CERCLA, risk managers consider other factors in 
determining remediation requirements, such as cost, effectiveness, 
community acceptance, protectiveness, and implementability of remedial 
alternatives. Thus, for completed pathways of exposure, results of the 
site-specific risk assessment are used to establish acceptable exposure 
levels for a site, and are evaluated along with other factors in the 
NCP in selecting remedial alternatives. The preliminary nature of the 
RfD and the process for considering perchlorate for regulation under 
the Safe Drinking Water Act leave uncertainty for current response 
actions. Under these circumstances, it is appropriate for remediation 
managers to carefully consider focusing their efforts on cost-effective 
measures to disrupt human exposure pathways to mitigate human health 
risk while development of regulatory standards proceeds. [from EPA's 
Q&As: http://www.epa.gov/swerffrr/documents/perchlorate qa.htm]

    Question 89. In its June 2002, report entitled: Military Training: 
DOD Lacks a Comprehensive Plan to Manage Encroachment on Training 
Ranges, the General Accounting Office found that ``DOD officials 
believe that encroachment of incompatible civilian activities 
compromises the effectiveness of their training activities . . . DOD 
officials report that local residents have filed lawsuits because they 
believe that military operations have impacted their property's value 
or restricted its use.'' GAO at 8. Several complaints made by the 
Department to the GAO involved non-environmental related matters (or 
matters not addressed in the Department's proposal) such as competition 
for frequency spectrum, noise abatement requirements, and incompatible 
nearby land uses. GAO highlighted that ``[m]any encroachment issues 
result from or are exacerbated by population growth and urbanization.'' 
GAO at 9. And that ``DOD is particularly affected because urban growth 
near 80 percent of its installations exceeds the national average. 
'According to DOD officials, new inhabitants near installations often 
view military activities as an infringement of their rights, and some 
groups have organized in an effort to reduce range operations such as 
aircraft and munitions training.'' Id.
    What provisions of the Department's proposal would affect local 
land use decisions made surrounding operational ranges? Would the 
Department's proposal limit the population growth near operational 
ranges? If so, how?
    Response. No provisions of this year's proposal would affect local 
land use decisions. However, last year Congress passed two provisions 
which were concerned with land use. One of those provisions gives DOD 
the authority to enter into third party partnerships with either 
nongovernment organizations or State and local governments for the 
purposes of creating conservation easements around our training ranges. 
The second allows the Department to convey excess DOD land to a 
conservation organization or local entity for the purposes of 
conservation.
                               __________
Statement of Hon. John Peter Suarez, Assistant Administrator, Office of 
  Enforcement and Compliance Assurance, U.S. Environmental Protection 
                                 Agency
    Mr. Chairman and members of the committee: Thank you for inviting 
me to speak with you today on behalf of the U.S. Environmental 
Protection Agency (EPA) about the Administration's proposed National 
Defense Authorization Act of Fiscal Year 2004. We believe the proposed 
bill appropriately addresses two important national priorities: 
military readiness and the protection of human health and the 
environment. These priorities can both be achieved at the same time, 
and we appreciate the Defense Department's willingness to work with us 
to craft the proposals before you today.
    As you know, the proposed bill would make changes to certain 
pollution control laws that EPA administers and to laws concerning 
wildlife protection and habitat preservation, which are the province of 
other Federal agencies. I'll confine my remarks here today to the laws 
under EPA's jurisdiction.
    In the wake of September 11th, we understand more than ever the 
importance of military readiness in combating traditional and emerging 
foes. Both EPA and DoD leadership recognize the vital importance of 
both the mission of protecting human health and the environment and the 
mission of protecting national security. Both believe that neither 
mission should be sacrificed at
    the expense of the other. Toward that end, EPA and DoD have for 
years worked cooperatively toward achieving these goals, with tangible 
benefits to the American people.
    The bill before this committee is the result of just such 
collaboration. Together, the two agencies resolved key issues in a way 
that allows the Services to continue to ``train the way they fight,'' 
while protecting the health of our citizens and safeguarding our 
natural resources. Indeed, we have recently reached agreement with DoD 
on language clarifying that the proposed changes to solid waste and 
Superfund laws apply only to operational ranges under the jurisdiction 
and control of the military services. The Administration has cleared 
this language and intends to send it to Congress in the near future. 
This action underscores the Administration's interest in keeping any 
changes limited and sharply focused.
    Today, I would like to highlight for the committee several of these 
proposed statutory changes the two agencies developed to facilitate our 
twin missions.
    Proposed changes to the Clean Air Act provide the armed forces with 
needed flexibility, while protecting air quality
    EPA recognizes that military readiness depends on DoD's ability to 
move assets and materiel around the Nation perhaps on short notice. 
Such large-scale movements of people and machines may have impacts on 
State Implementation Plans (or SIPs) for air quality.
    Accordingly, EPA and DoD developed proposed changes to the Clean 
Air Act's SIP provisions to allow the armed forces to engage in such 
activities while working toward ensuring that its actions are 
consistent with a SIP's air quality standards. Under the proposed bill, 
the armed forces would still be obliged to quantify and report their 
impacts on air quality prior to initiating the readiness activity, but 
would be given 3 years to ensure that their actions are consistent with 
a given state's SIP. We believe this compromise effectively addresses 
military readiness concerns, while ensuring timely compliance with air 
quality standards.
Proposed changes to RCRA will allow flexible and appropriate munitions 
        oversight
    The Administration's bill also proposes two changes to the Resource 
Conservation and Recovery Act, or RCRA, the nation's solid and 
hazardous waste law. First, the bill contains language that would 
change the statutory definition of ``solid waste'' under RCRA to 
provide flexibility for DoD regarding the firing of munitions on 
operational ranges, while clarifying that the definitional exemptions 
are not applicable once the range ceases to be operational. This change 
comports with existing EPA policy and the Military Munitions Rule that 
have defined EPA's oversight of fired munitions at operational ranges 
since 1997. The bill specifically maintains the ability of EPA, the 
states and citizens to take actions against the U.S. Government in 
accordance with the law in the event that munitions or their 
constituents migrate off-range and may pose an imminent and substantial 
endangerment to human health or the environment, if such materials are 
not addressed under the Comprehensive Environmental Response, 
Compensation and Liability Act (CERCLA).
    Second, the agencies worked together to craft a clear, common-sense 
definition of ``range.'' Under the revised definitions of ``solid 
waste'' and ``range,'' the armed forces will have statutory assurance 
that EPA will not intervene in the firing of or training with 
munitions, while the public may rest secure in the knowledge that EPA, 
states and citizens have authority to take action against the U.S. 
Government in accordance with the law if munitions pose a threat off-
range or after a range is closed.
    The history of interaction between EPA and DOD demonstrates that 
the two can work together effectively to achieve their respective 
missions, and this should instill confidence that the two agencies will 
continue to work together well to carry out those missions under the 
proposed legislation. EPA has in only one instance found it necessary 
to take an enforcement action that resulted in the cessation of live 
fire training at a military base namely, at the Massachusetts Military 
Reservation (MMR) on Cape Cod, Massachusetts. There, EPA took action 
under the Safe Drinking Water Act when it determined that the 
groundwater aquifer underlying MMR, the sole source of drinking water 
for hundreds of thousands of Cape Cod residents, was threatened with 
contamination and only after efforts to support voluntary action failed 
to stop the spread of contamination. Today at MMR, EPA is overseeing 
cleanup work to ensure that the drinking water supply for Cape Cod 
residents meets all relevant standards now and in the future. In 
response to EPA's decisions, the Defense Department shifted some of 
this training to another facility and limited its training at MMR to 
using small arms, as well as other training without using explosives, 
propellants and pyrotechnics.
Analogous changes to CERCLA will preserve the Agency's Superfund 
        authority to address contamination which presents an imminent 
        and substantial endangerment
    The Administration's bill proposes analogous changes to the 
Comprehensive Environmental Response, Compensation and Liability Act 
(CERCLA), also known as the Superfund law. It would exempt from the 
definition of ``release'' under CERCLA explosives and munitions 
deposited during normal use while on an operational range. It is 
important to note that EPA would retain authority to take action to 
abate an imminent and substantial endangerment to public health and the 
environment due to the deposit or presence of explosives and munitions 
on an operational range. As with the proposed changes to RCRA, the 
change to CERCLA affords flexibility to the armed forces in handling 
munitions at operational ranges, but ensures that EPA has the ability 
to act when necessary to address the most important public health and 
environmental concerns.
Ongoing collaboration on munitions
    Meanwhile, EPA continues to collaborate with DoD and state and 
tribal regulators to develop a new approach to cleaning up ordnance, 
explosives and munitions at non-operational ranges throughout the 
United States. This new approach, an expected product of the Munitions 
Response Committee (MRC), is designed to work within the framework of 
existing Federal and state authorities. Under the new process, Military 
Departments, EPA, Federal Land Managers, and the states and tribes will 
coordinate, where appropriate, and integrate their respective statutory 
and administrative authorities under Federal and state environmental 
laws. The development of Federal, state and tribal partnerships and 
public participation will be key characteristics of the new process. We 
believe that the proposed bill complements the partnerships we are 
building through the Munitions Response Committee and will help the 
Agency ensure that munitions at both operational and non-operational 
ranges are subject to sound environmental management.
The new proposal would authorize the transfer of obsolete vessels for 
        use as artificial reefs
    The bill would also authorize the Secretary of the Navy to transfer 
certain vessels for use as artificial reefs, but retain key 
environmental safeguards under CERCLA, RCRA and the Toxic Substances 
Control Act (TSCA). These ships are often contaminated with asbestos 
and polychlorinated biphenyls (PCBs). EPA is working closely with the 
Maritime Administration to determine if and when reefing is 
appropriate, and to find suitable ship-scrapping facilities at home or 
abroad to dispose of obsolete ships in a safe and environmentally sound 
manner.
Proposed changes in wetlands mitigation banking
    One other environmental provision of the bill deserves mention 
here. It would allow military departments to use military construction 
funds to make payments to wetlands mitigation banking programs and 
consolidated user sites when the Department is engaged in an activity 
that may adversely affect a wetland. A wetlands mitigation bank is 
typically a privately owned site in many instances, prior converted 
crop land where wetlands are restored. Wetlands mitigation banks have 
enjoyed increasing acceptance and success since the mid-1990's, and the 
new bill would simply clarify that military funds could be used for 
this purpose.
Conclusion
    Working together, EPA and DOD have developed a legislative proposal 
that addresses the concerns of the armed forces about future 
applications of EPA's statutes and regulations, while at the same time 
preserving the Agency's ability to protect public health and the 
environment. In the context of MMR, for example, EPA would still have 
the authority to protect the drinking water from imminent and 
substantial endangerment under the provisions of the proposed bill.
    Similarly, the proposed legislation would codify the so-called 
``munitions rule'' under RCRA an existing EPA regulation that sets 
forth the conditions under which EPA and the states can respond under 
RCRA to environmental threats at both operating and closed military 
ranges. The proposed legislation also states clearly that EPA is 
authorized under CERCLA section 106 to address imminent and substantial 
environmental threats at both operating and closed ranges.
    In conclusion, both the Administrator and I support this bill. We 
believe that it appropriately takes account of the interests of the 
American people in military readiness and in environmental protection. 
I am confident that DoD and EPA can work together within the framework 
of the proposed law to ensure that America's armed forces are able to 
train to carry out their national security mission and that the Agency 
is able to carry out its mission of protecting human health and the 
environment.
    This concludes my prepared remarks. Thank you for the opportunity 
to present EPA's views. At this time, I would be happy to answer any 
questions you may have.
                                 ______
                                 
Responses of John P. Suarez to Additional Questions from Senator Inhofe
    Question 1. Mr. Suarez, I was pleased to meet you yesterday, and I 
look forward to working with you in the future. For my first question 
of you I would like you to reconcile some testimony for me.
    You have testified that Governor Whitman and indeed EPA as an 
entity supports the President's military encroachment legislative 
request. You testified that, ``[T]he Administration's bill 
appropriately takes account of the interests of the American people in 
military readiness and in environmental protection. I am confident that 
DoD and EPA can work together within the framework of the proposed law 
to ensure that America's armed forces are able to train to carry out 
their national security mission and that the Agency is able to carry 
out its mission of protecting human health and the environment.''
    At the same time, Governor Whitman's testified that, ``We have been 
working very closely with the Department of Defense, and I don't 
believe that there is a training mission anywhere in the country that 
is being held up or not taking place because of an environmental 
protection regulation,'' and ``[A]t this point in time I am not aware 
of any particular area where environmental protection regulations are 
preventing desired training.''
    Why do you believe that the environmental legislation proposed by 
the Department of Defense should be enacted when you also apparently 
believe there is no instance where it is needed?
    Response. When Defense Department officials approached EPA in early 
2002 to discuss draft legislation, they recognized that EPA's 
enforcement of the statutes and regulations it administers was not 
presenting a current impediment to training and readiness. Instead they 
indicated that their concerns were about possible future applications 
of EPA requirements, including legal challenges to the nation's 
training and readiness activities. Working together, we developed 
legislative language to ensure that America's armed forces are able to 
train effectively and that our health and environment are protected in 
the process.

    Question 2. I want to be clear that as Chairman of this Environment 
and Public Works Committee and as a father of four and a grandfather of 
eleven, I am quite mindful of our nation's future and want to continue 
the improvement in the health of our environment, which EPA statistics 
show.
    Mr. Suarez, according to EPA, will human health and the environment 
be fully protected under this legislative proposal?
    Response. The Administration's fiscal year 2004 Defense 
Reauthorization Bill promotes future military readiness without 
jeopardizing public health and environmental protection under EPA's 
laws. The EPA's fundamental environmental protections for air, water 
and waste remain in place. We can still exercise enforcement authority 
to protect human health and the environment. While a few provisions of 
EPA's laws have been modified, the reauthorization bill does not 
represent a ``sweeping exemption'' from our environmental requirements.
    Under the proposed bill EPA retains authority under both CERCLA and 
the Safe Drinking Water Act to address conditions that may pose an 
imminent and substantial endangerment to human health or the 
environment.

    Question 3. In this time of war, and as someone who has served in 
the Army and someone who has for some years served as Chairman of the 
Readiness Subcommittee of the Senate Armed Services Committee, and I 
want to assure the American people that I share with them a concern for 
our troops in combat.
    Mr. Suarez, have you worked closely with DoD on these proposals and 
are you absolutely convinced that these proposals are necessary to 
fully accommodate America's military readiness?
    Response. I believe the proposed bill appropriately addresses two 
equally compelling national priorities: military readiness and the 
protection of human health and the environment.

    Question 4. What authorities will EPA have to ensure that the 
environment is clean under Superfund?
    Response. The bill explicitly preserves EPA's Superfund authority 
under CERCLA Sec. 106 to order an abatement of any imminent and 
substantial endangerment created by munitions used for their intended 
purpose on an operational range. For munitions that migrate off-range 
or munitions not used for their intended purpose or, indeed, for 
releases of other hazardous substances, pollutants and contaminants EPA 
retains all of its CERCLA response authorities. The same is true for 
munitions on closed ranges.

    Question 5. What authorities will EPA have to ensure that the 
environment is clean under the Resource Conservation and Recovery Act 
RCRA?
    Response. The bill provides a limited RCRA exemption only for 
military munitions used for their intended purpose on an operational 
range. Nevertheless, such munitions will be subject to all RCRA 
authorities, if they are recovered, collected and then disposed of by 
burial or landfilling or if they migrate off the operational range and 
are not addressed by a Superfund response action. This provision does 
not apply to munitions on closed ranges. All other waste handling 
activities will be subject to the usual RCRA requirements.

    Question 6. As a former State legislator I want to assure: What is 
the status of States' rights under this proposal? Do States maintain 
protections under this proposal? What, if any, rights do States lose 
under this proposal?
    Response. Under the proposal, States would retain rights under 
environmental laws, with limited exceptions as described below. States 
would retain authorities under RCRA and CERCLA for munitions that are 
handled as waste on operational ranges. The bill specifically maintains 
the ability of States and citizens to take actions against the military 
in the event that munitions or their constituents migrate off-range and 
may pose an imminent and substantial endangerment to human health or 
the environment, if such materials are not addressed by a response 
action under CERCLA. The proposal has no effect on closed ranges, or 
ranges that close in the future. The proposed changes to the Clean Air 
Act's SIP provisions still require the military to quantify and report 
its impacts on air quality to States, but would give the military 3 
years to ensure that its actions are consistent with a given State's 
SIP.
    The proposed change to the statutory definition of solid waste 
under RCRA would remove State imminent hazard authority under RCRA or 
State hazardous waste laws over environmental contamination caused by 
explosives, ordnance, munitions or unexploded ordnance (UXO) on 
operational ranges used for their intended purpose and which remain on 
the range. In addition, the proposed legislation would provide for 
removal to Federal court of CAA and SDWA penalty actions brought by 
States against Federal agencies.

    Question 7. What is the status of cities' rights under this 
proposal? Do cities maintain protections under this proposal? What, if 
any, rights do cities lose under this proposal?
    Response. Under the proposal, cities also would retain rights under 
environmental laws, with limited exceptions. The bill specifically 
maintains the ability of States and citizens, including cities, to take 
actions against the military in the event that munitions or their 
constituents migrate off-range and may pose an imminent and substantial 
endangerment to human health or the environment, if such materials are 
not addressed under the Comprehensive Environmental Response, 
Compensation and Liability Act (CERCLA). The bill has no effect on 
cities' legal authorities on closed ranges. Cities would no longer have 
imminent hazard authority under RCRA or State hazardous waste laws over 
environmental contamination caused by explosives, ordnance, munitions 
or unexploded ordnance (UXO) on operational ranges used for their 
intended purpose and which remain on the range.

    Question 8. Will States lose any tools available to them for 
cleanup?
    Response. Please see the answer to Question 6, above.

    Question 9. Who is authorized to clean up sites when there is a 
threat of ``imminent and substantial endangerment'' States or the 
Federal Government or both?
    Response. Both EPA and States are authorized under the imminent and 
substantial endangerment provisions of a variety of State and Federal 
anti-pollution laws to compel cleanup of sites where conditions may 
pose a threat of imminent and substantial endangerment.

    Question 10. I know Senator McCain has concerns that there may a 
loss of funding for cleanup if these legislative proposals are enacted. 
Is there any truth to that? Will EPA change its allocation of funds if 
these proposals are enacted?
    Response. DOD is in a better position to address any impact these 
legislative proposals might have on DOD funding for cleanup of DOD 
sites. The legislative proposals would not likely, however, have a 
significant impact on how EPA allocates cleanup funds.

    Question 11. Let us run through the 5 subsections of the CAA 
proposal for one moment. Is it fair to characterize the subsection (a) 
as requiring DoD to estimate and report to the State emissions from the 
proposed military training activities?
    Response. Yes, in the version of the legislation to which you are 
referring, the Department of Defense would have had to estimate and 
report to the State.

    Question 12. Does subsection (a) also provide DoD with a 3-year 
window of flexibility?
    Response. Yes, under this version of the bill DoD would have been 
provided with a 3-year window of flexibility.

    Question 13. Is it fair to characterize subsections (b) thru (e) as 
holding the State harmless for emissions from military readiness 
activities? Are cities also held harmless?
    Response. Yes, both cities and States would have been held 
harmless.

    Question 14. Some States and some cities have expressed the concern 
that they will bear an additional burden upon enactment of these 
legislative proposals. Is there any truth to that burden-shifting 
argument?
    Response. We do not believe that this legislation, if enacted, 
would place greater burdens on States and cities. For example, the 
proposed changed to the Clean Air Act would give the military 
flexibility to move people and materiel around the country, without 
first having to demonstrate compliance with air quality requirements. 
Ultimately, however, DoD would have to comply fully with air quality 
requirements.

    Question 15. Is there any truth to the argument that under these 
proposals we are accomplishing the universally accepted goal of 
supporting our Armed Forces at the ``expense of our non-military 
citizens,'' as Councilmember Lindeman from Aurora, Colorado states in 
her testimony?
    Response. The proposed legislation, in our view, strikes an 
appropriate balance between ensuring military readiness and 
environmental protection. The legislation, if enacted, would preserve 
essential authorities for EPA to protect human health and the 
environment.

    Question 16. Councilmember Lindeman characterizes these proposals 
as ``blanket exemptions'' from environmental laws. Is that a fair 
characterization?
    Response, No. As indicated above, the proposed provisions to the 
Clean Air Act provide extensions to certain deadlines but ultimately 
require compliance with air quality requirements. The proposed changes 
to RCRA and CERCLA are limited to the application of those laws to 
munitions used for their intended purpose on an operational range, and 
that remain on an operational range. EPA retains its full authorities 
with respect to a broad range of other DoD activities.

    Question 17. I want the experts at EPA to put any unwarranted fears 
to rest once and for all Are the ramifications from these proposals 
``serious,'' ``untenable,'' and do they pose ``significant potential 
for adverse public health effects in cities with respect to air, 
drinking water, and management of hazardous waste,'' as Councilmember 
Lindeman states in testimony, or does this rhetoric not match the 
reality of the proposal?
    Response. We respect the concerns expressed by Councilmember 
Lindeman, as well as others, regarding the effects of the proposed 
legislation. EPA has worked with the Department of Defense and others 
within the Administration to ensure that the proposed legislation, if 
enacted, would have few, if any, adverse effects on public health and 
the environment. We believe that the proposed legislation would 
preserve EPA's essential authorities to protect public health and the 
environment.

    Question 18. Mr. Suarez, in working with DoD on this proposal, can 
you tell me from EPA's perspective why a 3-year window of flexibility 
might be appropriate, as opposed to 1 year or 8 years, for example? Is 
this a reasonable amount of time to offset emissions that might result 
from the deployment of new weapons systems and/or realignment of force 
strength?
    Response. After discussions with the DoD and other departments, we 
concluded that a 3-year window of flexibility would have been the 
appropriate option for ensuring that the military could accomplish 
their training and move military equipment in a way that minimizes air 
quality impacts while ensuring readiness. A time line of less than 3 
years might not have given the military adequate time to account for 
the added emissions generated by the movement of troops and/or 
equipment. We considered extending the flexibility to 5 years, but 
determined that the length of time (or longer time periods) may not 
have matched up well with the deadlines for achieving and maintaining 
clean air.

    Question 19. What do you think of the suggestion that we 
accommodate concerns that this window is too much time and thus 
represents too many emissions by going with two and + years or 2 years 
instead of 3 years?
    Response. As stated in the preceding answer, we believe that 3 
years would have been the appropriate length of time.

    Question 20. Councilmember Lindemann poses a rhetorical question in 
her testimony that I would like to have answered in reality.
    She states, ``Contamination, and subsequent closure, of sources of 
drinking water by military ordnance constituents such as perchlorate, 
RDX and TNT have already occurred in Maryland and Massachusetts under 
current law. What will happen in these municipalities if the Department 
of Defense is exempted from the relevant environmental statutes?"
    What is the answer to her question? What would have happened in 
those situations if these legislative proposals had been enacted at 
that time? Would things have proceeded differently?
    Response. The proposed bill does not alter EPA's authorities under 
the Safe Drinking Water Act authorities EPA has used in the past to 
address drinking water contamination at the Massachusetts Military 
Reservation (Cape Cod, Massachusetts), for example.

    Question 21. Councilmember Lindemann makes another rhetorical point 
in her testimony that I would like to have answered in reality. She 
characterizes this proposal as exempting military facilities from 
CERCLA remediation requirements, thereby halting the cleanup of the 
sites and preventing any effective opportunity for redevelopment and 
economic sustainability in the surrounding community. She makes the 
case that the economy is thus jeopardized. Is there any truth to that 
assertion?
    Response. We believe that the proposed legislation would not have 
significant impacts on opportunities for redevelopment and economic 
sustainability. The CERCLA provisions would affect only munitions used 
for their intended purpose on an operational range, meaning that DoD is 
continuing to use the land for military readiness activities. The 
CERCLA provisions would NOT affect DoD's obligation to remediate 
contamination off of operational ranges or on ranges that are no longer 
operational.

    Question 22. Concern has been raised about the usage of the term 
``constituents thereof'' in conjunction with the list ``explosives, 
unexploded ordnance, munitions, munitions fragments.'' What, if any, is 
the effect of using the term ``constituents thereof?"
    Response. As EPA understands it, if the term ``constituents 
thereof'' is not included then an operational range would remain 
potentially subject to RCRA or CERCLA authorities based on the premise 
that once the constituents of the explosives, unexploded ordnance, 
munitions or munitions fragments become separated they are no longer 
``explosives, unexploded ordnance, munitions or munitions fragments'' 
and, arguably no longer covered by these legislative proposals.

    Question 23. Do the legislative proposals in any way, either 
directly or by implication, affect the Safe Drinking Water Act over 
which this committee has jurisdiction?
    Response. No.

    Question 24. Mr. Benvenuto on the next panel has shown himself to 
be thoughtful and analytical in some of his suggestions. He has 
suggested that we make explicit in the statutory language that this 
legislation in no way impacts the Safe Drinking Water Act. Even if this 
language were redundant, wouldn't it be a good idea as a means of 
reassuring States and cities? Would EPA agree to this suggestion?
    Response. EPA does not believe it is necessary to include a 
specific reference to the Safe Drinking Water Act (SDWA) in this 
legislative proposal. We would recommend providing the assurance to 
States and citizens in the accompanying legislative history instead of 
adding redundant language to the statute.

    Question 25. The ``Military Munitions Rule'' which I have in my 
hand was proposed in 1995 by then EPA Administrator Carol Browner 
during the Clinton/Gore Administration. The same cast of characters 
finalized the rule in 1997. The rule itself was mandated by a Democrat-
controlled Congress in 1992 legislation called the Federal Facilities 
Compliance Act.
    Some have suggested that merely codifying the Military Munitions 
Rule the work of the Democrats would be a massively [sic] roll back of 
environmental law and would constitute a sweeping exemption. Could this 
allegation be true?
    The allegation is that there are a whole host of implications 
associated with codifying the rule, such as State sovereign immunity, 
etc. Can you comment on this allegation?
    Response. As I testified before the Senate Environment and Public 
Works Committee: ``We believe the proposed bill appropriately addresses 
two important national priorities: military readiness and the 
protection of human health and the environment. These priorities can 
both be achieved at the same time, and we appreciate the Defense 
Department's willingness to work with us to craft the proposals before 
you today.'' We believe the proposed changes to the law are limited and 
sharply focused.
                                 ______
                                 
   Responses of John P. Suarez to Additional Questions from Senator 
                                Jeffords
    Question 1. The Administration has testified that the bill would 
not affect the nation's ability to address perchlorate in groundwater 
because EPA would retain its ``imminent and substantial endangerment'' 
authority under both Superfund and the Safe Drinking Water Act. Am I 
correct that those emergency authorities cannot be invoked by either 
States or concerned citizens?
    Response. Yes, neither citizens nor States may take action under 
Section 1431 of the Safe Drinking Water Act (SDWA) to abate an imminent 
and substantial hazard. Nevertheless, any person (including citizens 
and States) may commence an action under Section 1449 of the SDWA 
against anyone who is alleged to be in violation of any SDWA 
requirement.

    Question 2. Am I correct that EPA's military munitions regulation 
does not (1) alter the statutory definition of ``solid waste'', (2) 
limit EPA's statutory authority to respond to ``imminent and 
substantial endangerments'' under RCRA 7003, (3) narrow the scope of 
RCRA's 6001 sovereign immunity provision, and thus does not affect the 
ability of States to enforce their own hazardous waste laws, (4) alter 
the scope of the citizen suit provision of RCRA 7002, or (5) alter the 
rule governing the cleanup of hazardous constituents from military 
munitions?
    Response. That is correct.

    Question 3. Under this proposal, toxic waste from military 
munitions that leach off an operational range would remain subject to 
the Federal hazardous waste laws only if they are not ``addressed under 
Superfund.'' Please explain what ``addressed'' means, whether EPA or 
DOD would be responsible for making such a determination and the 
process they would follow?
    Response. It is our understanding that an off range release would 
be ``addressed under Superfund'' if the release is the subject of a 
response action under CERCLA. Generally, Executive Order 12580 
delegates the President's CERCLA response authority to DOD for releases 
on or from a facility under the jurisdiction, custody or control of 
DOD. Therefore, DOD would determine whether to initiate a response 
action.
                                 ______
                                 
 Responses of John P. Suarez to Additional Questions from Senator Boxer
    Question 1. Why does the DoD need these waivers when all of these 
laws have provisions that specifically exempt military activities in 
the case of national security?
    Response. DoD has stated that wholesale, repeated use of emergency 
exemptions for routine, ongoing readiness activities make little sense 
given that such activities could easily be accommodated by minor 
clarifications and changes to existing law.

    Question 2. When you testified before us on April 2, you stated 
that you were unaware that State and local air regulators were opposed 
to DOD's proposed exemptions.
    What efforts has this administration made to reach out to, and 
solicit the input of, the local and State regulators concerning these 
proposals?
    To which local and State representatives did this administration 
reach out? Did the administration's efforts include outreach to the 
State and Territorial Air Pollution Program Administrators?
    Did the Administration's efforts include outreach to the States' 
Attorneys General?
    Did the administration's efforts include outreach to the State and 
local solid and hazardous waste program managers?
    Did the administration's efforts include outreach to the League of 
Cities?
    Response. EPA did not manage the comment-gathering process on this 
proposed legislation. We submit that such questions may be better 
addressed to DoD.

    Question 3. The DoD exemption proposal before us would exempt DoD 
from many of the environmental laws and regulations that apply to the 
private sector. Is this administration abandoning the long-standing 
policy that the Federal Government, including DoD, should be held to 
the same environmental enforcement standards, enforcement and rules as 
the private sector?
    Response. No, this Administration remains fully committed to the 
principle that Federal facilities should be held to the same standards 
as the private sector.

    Question 4. In your testimony before this committee you asserted 
that EPA fully supports DoD's request for exemptions from RCRA and 
CERCLA as reflected in Section 2019 of the Readiness and Range 
Preservation Initiative (RRPI). However, is it not correct that in EP 
A's official comments to OMB on the DOD proposal, EPA stated that: 
``EPA opposes this section''?
    Did EPA in its official comments to OMB also state that one of 
these reasons is because current laws and regulations already address 
DoD's concerns?
    Did EPA in its official comments to OMB also state that EPA's 1997 
Military Rule substantially addresses the concerns raised by DoD?
    Did EPA in its official comments to OMB also state that the RCRA 
and CERCLA language ``eliminates'' the ability of a State or other 
person to request that the President exercise his authority under 
section 106(a) to address an ``imminent and substantial endangerment to 
health or welfare or the environment?"
    And, third, is it correct that EPA in its official comments to OMB 
also opposed this proposal because ``it fails to provide for the rights 
of States and citizens to address imminent and substantial endangerment 
issues at Federal facilities?"
    Am I correct that EPA took the position in its official comments to 
OMB on the DOD proposals on RCRA and CERCLA that ``an across the board 
exemption for potentially hundreds of 'operational ranges' is too 
sweeping''?
    Response. EPA's comments pertain to a draft version of the proposed 
legislation that was substantially changed in large measure, a result 
of interagency dialog between DoD and EPA in the final Administration 
proposal to Congress.

    Question 5. According to EPA's official comments to OMB, under the 
DOD proposal, EPA and States would have to ``wait for human health and 
environmental effects to occur beyond the boundaries of the operational 
range before the Agency or State could take action.'' In other words, 
EPA and States would have to wait until perchlorate migrated off an 
active range and contaminated drinking water before it could undertake 
clean-up activities. While many believe that the proposal is broader 
than the administration asserts, even were the administration's 
interpretation correct, it would seem that it does not make sense to 
wait for perchlorate or other contaminants to migrate off of an active 
range and actually contaminate drinking water or harm people before 
taking action to prevent the spread of the contamination. EPA's 
official comments to DOD's proposal state that DoD's proposed policy 
``ignores the substantial benefits, including reduced cost to respond, 
that could be generated under RCRA/CERCLA response prior to 
contamination migrating off an operational range.'' In fact, it has 
long been EPA's policy to try and stop the spread of contamination 
instead of just waiting to clean it up after it occurs. Has EPA changed 
its policy regarding drinking water protection?
    Response. No, EPA has not changed its policy regarding drinking 
water protection. Indeed, the Administration's proposal leaves the Safe 
Drinking Water Act untouched. We believe that EPA would retain 
sufficient authorities under the proposed legislation to protect human 
health and the environment.

    Question 6. There are numerous hazardous waste sites across the 
Nation, such as the Aerojet site near Sacramento, where perchlorate is 
being cleaned up using Superfund. Since this proposal would exempt DoD 
ranges from CERCLA, won't this bill restrict EPA's ability to remedy 
perchlorate contamination under CERCLA? Please explain.
    Response. The Aerojet site near Sacramento, California is not an 
``operational range,'' as that term was defined in the proposed 
readiness legislation. Accordingly, none of the proposed legislative 
changes would apply to the Aerojet site, and current law will continue 
to control.
    The proposed legislation expressly preserves EPA's authority to 
take action under CERCLA Sec. 106 for munitions that pose an imminent 
and substantial endangerment on an operational range. Under the bill, 
the remainder of EPA's CERCLA remedial authorities for munitions on 
operational ranges are simply postponed until after a range ceases to 
be operational.

    Question 7. Although you assert that the modifications to RCRA and 
CERCLA will not hamper cleanup of perchlorate, is it not correct that 
CERCLA and RCRA are the laws that govern cleanup of hazardous waste 
sites?
    Response. It is correct that CERCLA and RCRA are two of the laws 
that govern cleanup of hazardous waste sites. The proposed bill leaves 
untouched EPA's authority under the Safe Drinking Water Act. EPA has 
used this authority to order investigation of and evaluation of 
treatment technologies for perchlorate at the Massachusetts Military 
Reservation on Cape Cod.

    Question 8. At how many current, and at how many former, DoD sites 
across the Nation are Superfund or RCRA being used to manage cleanup?
    Response. The fiscal year 2002 Defense Environmental Response 
Program Report (DERP) to Congress identifies 3,479 installations under 
DERP (page B-3). According to this report there are 1,745 active and 
closing installations with cleanup work and 1,734 Formerly Used Defense 
Sites (FUDS).

    Question 9. How many of these sites have perchlorate contamination?
    Response. Attached is a list of 29 DoD facilities with known 
perchlorate releases. Also attached is a list of private facilities 
which may include some former Defense sites. Because PRP searches are 
still ongoing at a number of sites and because liability has not been 
established for all the private party sites, at this time EPA cannot 
precisely identify which ones may have the Department of Defense as a 
potentially responsible party. [Note: documents are retained in 
committee files.]

    Question 10. At how many current, and at how many former, 
Department of Defense (DoD) sites is the Safe Drinking Water Act (SDWA) 
being used to manage cleanups?
    At how many of the current, and at how many of the former, 
Comprehensive Environmental Response, Compensation and Liability Act 
(CERCLA or Superfund) and Resource Conservation and Recovery Act (RCRA) 
sites would partial or total cleanup be waived were the recommendations 
before us now already in place?
    At how many sites is the EPA using its imminent and substantial 
endangerment authority to oversee CERCLA cleanups? How many of these 
are DoD sites? How many of these sites have perchlorate contamination? 
How many of these sites are DoD perchlorate contamination sites?
    Response. The following numbers have been gathered from various EPA 
data bases and from the various EPA Regions and offices. There are many 
bodies that are involved in the enforcement of these statutes, 
including the States, EPA and the Department of Justice. The 
information requested may not have been comprehensively maintained or 
recorded and, therefore, the numbers may not reflect all possible 
incidents.
    Clean ups have been managed under the SDWA at only one DoD 
facility. EPA issued the Massachusetts Military Reservation (MMR) 
unilateral orders under Section 1431 of the SDWA on three separate 
occasions. The orders issued to MMR also relied on EPA's imminent and 
substantial endangerment authorities under RCRA.
    The records of Superfund and RCRA sites that have undergone partial 
or total cleanups do not reveal whether the proposed legislative 
exemptions would effectively waive those cleanups. The proposal draws a 
distinction between munitions deposited an operational range incident 
to their normal and expected use and munitions handled in other ways. 
In any event, the proposed legislation would postpone, not waive, DoD's 
obligation to clean up munitions deposited on operational ranges 
incident to their normal and expected use.
    There are a number of sites at which EPA has used its imminent and 
substantial endangerment authority under CERCLA Sec. 106 to oversee 
cleanups. As maintained in CERCLIS, EPA's online data base for CERCLA 
actions, approximately 153 sites have received unilateral orders under 
CERCLA Sec. 106, including 151 private party sites and 2 Federal 
facility sites. No unilateral orders under CERCLA Sec. 106 have been 
issued to a DoD facility. Perchlorate has not been named as a 
contaminant in the records of these sites.
                               __________
 Statement of Craig Manson, Assistant Secretary for Fish and Wildlife 
                 and Parks, Department of the Interior
    Mr. Chairman and members of the Subcommittee, 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. Some outstanding examples of 
these partnerships are included at the end of my statement.
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 FWS office, 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 FWS office.
    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 buildupon the relationship we have 
established.
Recent Court Decision on 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 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.
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, the 
Department of Defense 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.
                                 ______
                                 
                               Attachment
    examples: fws-doi cooperation in endangered species conservation
    United States Air Force Academy, Colorado.--The U.S. Air Force 
Academy recognized the value of long-range planning when it 
commissioned a baseline study of small mammals in 1994. The survey 
aided the Air Force in identifying the presence of the Preble's meadow 
jumping mouse, which at the time was a candidate for listing. A species 
receives protection under the ESA when it is listed as endangered or 
threatened. In order to help DOD agencies plan their activities, the 
Fish and Wildlife Service shares information on listing candidates and 
upcoming listing actions. As a result, the Academy entered into a 
partnership with the Colorado Natural Heritage Program to study the 
mouse and provide information for management and conservation 
strategies.
    When the jumping mouse was listed as threatened in 1998, the Fish 
and Wildlife Service took steps to ensure that the Academy would be a 
full partner in the species' management and recovery. The Academy's 
natural resources manager is a member of the Science Advisory Team, a 
group of scientists and managers dedicated to compiling the best 
science available to support the conservation of the mouse throughout 
its range. An Academy representative also holds a position on the 
executive committee for a habitat conservation plan (HCP) under 
development for El Paso County, Colorado. Through the HCP process, the 
Academy will coordinate with non-Federal entities in the development of 
regional conservation strategies for the mouse. In addition, at the 
request of the Fish and Wildlife Service, the Academy's natural 
resources manager is representing the Air Force on the Preble's Meadow 
Jumping Mouse Recovery Team, which is charged with developing a plan to 
restore the species to a secure status. The Air Force also initiated a 
programmatic formal consultation under section 7 of the ESA for its 
Preble's meadow jumping mouse conservation management plan and 
conservation agreement. The biological opinion provided by the Fish and 
Wildlife Service on the Academy's conservation management plan 
significantly reduced the regulatory burden on both the Academy and the 
Fish and Wildlife Service by removing the need for section 7 
consultations for each instance of regular maintenance.
    Camp Pendleton, California.--In 1999, substantial areas of Camp 
Pendleton were included in proposed designations of critical habitat 
for 5 of the 18 listed species that are present on the base. The Fish 
and Wildlife Service was able to work within the provisions of the ESA 
to avoid designating critical habitat on the training areas within Camp 
Pendleton.
    The ESA requires the Fish and Wildlife Service to determine whether 
designation of critical habitat is prudent and determinable. Under 
sections 4(b)(2) of the ESA, the Secretary of the Interior can exclude 
areas from critical habitat designations when economic or policy 
interests outweigh the expected benefits of designation. The Fish and 
Wildlife Service has used military readiness as a reason to exclude 
training areas from critical habitat designations many times now.
    For example, the 1999 proposals for critical habitat on Camp 
Pendleton would have designated over 50 percent of the base as critical 
habitat for listed species, including the California gnatcatcher, the 
Tidewater goby, the Riverside fairy shrimp, the San Diego fairy shrimp, 
and the arroyo toad. As a result of the exclusion process discussed 
above, the Fish and Wildlife Service was able to exclude most of Camp 
Pendleton from the designated critical habitat due to Marine Corps 
concerns about the effects the designations could have on military 
training critical to national security. The land area currently 
designated as critical habitat on Camp Pendleton encompasses less than 
4 percent of the 125,000 acre, over half of which is located on land 
leased by the State, rather than the base proper.
    Fort Hood, Texas.--Under the section 7(a)(2) of the ESA, Federal 
agencies are required to consult with the Fish and Wildlife Service to 
ensure that actions they authorize, fund, or carry out are not likely 
to jeopardize the continued existence of listed species or adversely 
modify designated critical habitats. A good example of this process 
occurred recently at Fort Hood. As one of the largest heavy artillery 
training sites in the country, it conducts live weapons fire and 
aviation training and houses more than 500 tanks. Much of the 220,000-
acre base resembles barren, scorched battlefields with ruts as deep as 
trenches. However, it also contains essential nesting habitat for two 
endangered songbirds, the golden-cheeked warbler and black-capped 
vireo. Fort Hood is balancing its military mission with environmental 
stewardship.
    As part of its responsibility under the ESA, the post manages 
66,000 acres, more than 25 percent of the land on base, for the 
recovery of these two endangered species. The post also provides a 
haven to wintering bald eagles, occasional visiting whooping cranes, 
peregrine falcons, and other rare plant and animal species.
    The Army entered into an interagency consultation with the Fish and 
Wildlife Service under section 7 of the ESA. In 1993, the Fish and 
Wildlife Service issued a ``no jeopardy'' Biological Opinion (BO). 
Following the issuance of the BO, Fort Hood contracted with the Nature 
Conservancy of Texas for further research and monitoring of the birds. 
In conjunction with Fish and Wildlife Service and Army biologists, 
Conservancy researchers are compiling the most comprehensive body of 
information on the birds to date. Fort Hood has followed the 
requirements of the 1993 BO (including a version amended in 2000) and 
has funded valuable research and management strategies that can be 
applied to warbler and vireo issues range-wide. The birds are 
benefiting from our partnership with the Garrison Commander and base 
natural resources staff.
    Fort Bragg, North Carolina.--For listed species, recovery is the 
ultimate goal. Section 7(a)(1) of the ESA directs Federal agencies to 
use their statutory authorities to fulfill this goal. The Sandhills 
region of North and South Carolina supports the largest population of 
red-cockaded woodpeckers (RCW) in the United States. Fort Bragg is the 
only Federal authority managing lands in that region for the recovery 
of RCW's. The area around Fort Bragg is being rapidly developed, and if 
critical tracts are not protected soon, they will be lost to the 
woodpecker. Loss of these lands due to development also would limit 
Fort Bragg's ability to sustain current and future military training. 
In response, the Army launched a Private Lands Initiative with The 
Nature Conservancy and other partners to purchase land or conservation 
easements from willing sellers. The lands will not only become 
available for red-cockaded woodpecker recovery, but also for compatible 
military training activities and recreation.
    Fort McCoy, Wisconsin.--Fort McCoy encompasses 59,750 acres and is 
home to a diversity of vegetation, including wild lupine, which is the 
only known food plant for larvae of the endangered Karner blue 
butterfly. Since 1990, when the installation discovered Karner blues on 
its land, military training and the butterflies have coexisted and 
thrived. Fort McCoy officials began coordinating with the Fish and 
Wildlife Service on the impact of both military and non-military 
activities affecting the Karner blue butterfly in 1992. In early 1994, 
the Fish and Wildlife Service issued Fort McCoy a no-jeopardy BO that 
included ``reasonable and prudent measures'' and ``terms and 
conditions,'' both as provided under the ESA. As part of an effort to 
fulfill those terms, Fort McCoy submitted a draft Karner Blue Butterfly 
Conservation Plan to the Fish and Wildlife Service in 1995. The plan 
outlined the direction Fort McCoy would take to manage its lands for 
the butterfly while allowing for the successful completion of the 
installation's military training mission. The final conservation plan 
was completed in 1997. Fort McCoy has been able to comply with the ESA 
while having only minimal impact on military training.
    Pearl Harbor, Hawaii.--A Navy team recently created some critical 
mudflat habitats for endangered waterbirds on the shores of Pearl 
Harbor. These mudflats are home to a number of Hawaiian waterbirds, 
including four endangered species and a variety of migratory birds. The 
site is a small pond within a unit of the Pearl Harbor National 
Wildlife Refuge. While the underlying land and water is owned by the 
Navy, the refuge is managed by the Fish and Wildlife Service. Over the 
years, the pond has provided decreasing value to waterbirds because of 
the increasing growth of invasive plants and weeds. Fish and Wildlife 
Service staff had attempted to create clear spaces by changing the 
water levels, but it wasn't enough to make the area suitable habitat 
for waterbirds. Additional work with heavy equipment was needed to 
create conditions favorable for wildlife.
    In August 2000, a Navy Seabee unit answered the Refuge Manager's 
request for help and at the same time benefited from some real-life 
training. Two Seabee heavy equipment operators maneuvered a bulldozer 
and grader to sculpt the bottom of the pond. Putting their Navy 
engineering skills to work in this training exercise, they reshaped 
mudflats for endangered Hawaiian stilts and constructed a drainage 
system according to a refuge restoration plan. This project was just 
one example of the Navy's strong partnership with the Fish and Wildlife 
Service's national wildlife refuge in Pearl Harbor. For years, sailors 
and their families also have volunteered numerous weekend hours 
creating new habitats and clearing away trash and excess vegetation at 
the refuge.
    Air Force in Alaska and Peregrine Falcon Recovery.--Since the early 
1980's, the Air Force has worked with the Fish and Wildlife Service to 
minimize or eliminate impacts of Air Force activities on peregrine 
falcons in Alaska. Through the section 7 consultation process, the Air 
Force and the Fish and Wildlife Service identified major peregrine 
nesting areas in proposed Air Force training locations. Much of this 
training involves very low-level and high-speed flights, a combination 
with the potential to disturb many wildlife species, including nesting 
peregrine falcons. The Air Force agreed to a protective ``no-fly'' zone 
of 2 miles horizontal distance and 2,000 feet above the nest level in 
these dense nesting areas. Additionally, the Air Force is monitoring 
several nearby peregrine populations that fall outside the protected 
areas. This monitoring effort, which has continued since 1995, shows 
that the protective zones appear to provide adequate protection in the 
densest nesting areas and that the incidental loss of nestlings outside 
these zones is below the levels originally anticipated. Rather than 
making a minimal effort to comply with the ESA, the Air Force actively 
pursued programs to promote peregrine recovery, which helped make it 
possible to remove this magnificent bird from the threatened and 
endangered species list in 1999.
                                 ______
                                 
   Responses of H. Craig Manson to Additional Questions from Senator 
                                 Inhofe
    Question 1. Wouldn't you agree, as was noted by at least two 
Federal courts in their rulings and indicated on the chart to my right, 
that the United States Fish and Wildlife Service--regardless of which 
party is administering the Service--has long held the policy position 
that critical habitat designations are unhelpful, duplicative, and 
unnecessary?
    Response. I believe that is a valid characterization of the 
agency's position.

    Question 2. Isn't it also empirically true, as was noted by at 
least two Federal courts in their rulings, that although the United 
States Fish and Wildlife Service must designate critical habitat once a 
species is listed, ``the FWS has typically put off doing so until 
forced to do so by court order?"
    Response. While this is true, I believe the U.S, Fish and Wildlife 
Service's (Service) lack of action does need some further explanation. 
The Endangered Species Act (ESA) calls for designation of critical 
habitat ``to the extent prudent and determinable.'' Previously, the 
Service adopted a policy that in most circumstances designation of 
critical habitat was ``not prudent,'' as it did not provide sufficient 
additional benefits to the species over and above that provided by 
listing to warrant the commitment of agency resources that would be 
involved in the designation. The Service was not ignoring the 
requirement to designate, it was making ``not prudent'' findings based 
on a policy that the courts have determined to be in conflict with the 
applicable statutory requirements.

    Question 3. Do you agree with the Department of Defense when' they 
state that the Integrated Natural Resources Management Plans (INRMPs) 
are a more ``holistic'' approach to species conservation than merely 
designating critical habitat?
    Response. Yes, in almost every case, active coordinated management 
of land provides far greater benefit to listed species than the 
protection which may accompany a critical habitat designation.

    Question 4. Do you have some sympathy for the approach that former 
Clinton Administration Fish and Wildlife Service Director Jamie Clark, 
who will testify on the next panel, originally took when in the Final 
Determination of Critical Habitat for the Coastal California 
Gnatcatcher of October 24, 2000, she determined that because ``a final 
INRMP that provides for sufficient' conservation management and 
protection'' and ``meets the [appropriate] three criteria,'' lands on 
Marine Corps Base Miramar do not meet the definition of critical 
habitat?
    Response. This Administration has continued that policy, and it is 
the basis for the proposed critical habitat provisions iii the 
Administration's Readiness and Range Preservation Initiative.

    Question 5. Moreover, do you think as a general rule that it would 
be a good idea to adopt the proposal of the Department of Defense to 
allow the more holistic approach of INRMPs in lieu of designating 
critical habitat?
    Response. Yes, we fully support that proposal.

    Question 6. Are you convinced that this proposal is important for 
our national security?
    Response. It seems very clear that designation of critical habitat 
on military lands used for training or other readiness purposes can 
have the effect of delaying and restricting the military's ability to 
use those lands due to the need for additional consultations. In 
today's environment, we cannot afford unnecessary restrictions on the 
military's ability to train and deploy.

    Question 7. Are you convinced that species can be protected using 
INRMPs just as well if not better using INRMPs instead of designating 
critical habitat?
    Response. A properly prepared and implemented INRMP would be of far 
greater benefit to the conservation of all species, listed and 
unlisted, than the mere designation of the same area as critical 
habitat,

    Question 8. Would the Department of Defense still have to have 
their INRMPs approved by the U.S. Fish and Wildlife Service?
    Response. Yes, there is nothing in the Administration's Readiness 
and Range Preservation Initiative that alters the current process by 
which INRMPs are developed and approved.

    Question 9. Will you please amplify your testimony with more of the 
background and specifics of the recent Arizona court decision involving 
designation of critical habitat?
    Response. The Court made a number of findings in that case with 
which we do not agree. The one most directly applicable to the pending 
proposal relates to the definition of critical habitat.
    The portion of the definition of critical habitat in question is: 
``specific areas . . . on which are found those physical or biological 
features--(1) essential to the conservation of the species and (II) 
which may require special management considerations or protection.''
    The overall issue in this case was a challenge to the Service's 
decision to exclude Forest Service lands from the designation of 
critical habitat on the grounds that the National Forest management 
plans provided adequate management protection for owls and that, 
therefore, ``special management considerations or protections'' were 
not needed.. This is the same policy used to exclude military lands 
with approved INRMPs from critical habitat.
    In the portion of the decision most directly addressing this issue, 
the court ruled:

    The phrase `which may require special management considerations or 
    protection' can be rephrased as `can require' or `possibly 
    requires' without altering its meaning. Hence, a plain reading of 
    the definition of `critical habitat' means lands essential to the 
    conservation of a species for which special management or 
    protection is possible.
    Whether habitat does or does not require special management by 
    Defendant or FWS is not determinative of whether or not the habitat 
    is `critical' to a threatened or endangered species. What is 
    determinative is whether or not habitat is `essential to the 
    conservation of the species' and special management of that is 
    possibly necessary. Thus, the fact that a particular habitat does, 
    in fact, require special management is demonstrative evidence that 
    the habitat is `critical.' Defendant, on the other hand, takes the 
    position that if a habitat is actually under `adequate' management, 
    then that habitat is per se not critical,' This makes no sense. A 
    habitat would not be subject to special management and protection 
    if it were not essential to the conservation of the species. The 
    fact that a habitat is already under some sort of management for 
    its conservation is absolute proof that such habitat is `critical.' 
    [Emphasis in original.]

    We believe that this decision ignores a great many valid and 
applicable factors which would normally, and reasonably, be taken into 
account in making such determinations. These include the fact that 
there are many reasons, including statutory or policy requirements 
apart from the ESA why any given area might have a conservation 
management plan; and that landowners not required to provide 
conservation management for their property might well not do so if that 
resulted in their land being definitionally classified as critical 
habitat,

    Question 10. Does the lawsuit by an eco-radical special interest 
group have some bearing here?
    Response. The portion of the court's ruling cited above is directly 
applicable to the issue of excluding military lands with approved 
INRMPs from critical habitat, as the court voided the policy upon which 
this is based. While this decision is only applicable to the Forest 
Service lands that were the subject of this specific case, it is 
available as precedent in other cases challenging the Service's 
exclusion of military lands from critical habitat.

    Question 11. There was some confusion here on Capitol Hill 
yesterday regarding what the Arizona case actually states. Doesn't the 
lawsuit specifically say that ``the ESA compels designation [of 
critical habitat] despite other methods of protecting the species the 
Secretary [through FWS] might consider more beneficial?
    Response. The ruling actually goes a step further than that. While 
prior litigation, such as NRDC v. U.S. Department of the Interior, 113 
F.3d 1121 (9"' Cir, 1997), resulted in ruling such as you describe, 
this decision says that critical habitat must be designated because of 
the existence of other, more beneficial, methods of protecting species.
    While the military and many other Federal agencies have statutory 
obligations to conserve listed species and to complete and implement 
beneficial management plans, this is not at all true of State and 
private landowners. Were this decision to become applicable nationally, 
it would likely destroy one of the primary incentives for non-Federal 
landowners to take positive steps to conserve and assist in recovery of 
listed species, as few if any would do so if they knew the reward for 
their actions would be the designations of their lands as critical 
habitat.

    Question 12. Doesn't the lawsuit specifically suggest that the 
Department of the Interior rethink critical habitat designation?
    Response. The court did so suggest. The court noted that a large 
number of other courts had also ruled against the Service's decisions 
not to proposed critical habitat. It then ' mistakenly characterized 
those court rulings as involving the issue of ``special management 
considerations or protection,'' when they were in fact based on the 
``not prudent'' policy referenced above, and then it suggested that the 
Service should reverse its prior policy and, by implication, begin to 
designate critical habitat based on the criteria set forth by the court 
and quoted above.

    Question 13. We have heard allegations that this legislation is 
overly broad. Isn't it true that the legislation is actually quite 
narrowly tailored?
    Response. The provisions relating to critical habitat under the ESA 
and to the Marine Mammal Protection Act are quite narrow. The critical 
habitat provision codifies a policy first initiated in the previous 
Administration, and the proposals relating to the Marine Mammal 
Protection Act are also contained in the Administration's proposal for 
reauthorization of that Act, but are applicable to all regulated 
parties in that proposal. I defer to the other appropriate agencies' 
witnesses with respect to the other portions of the Initiative,

    Question 14. Does this legislation appropriately respond to the 
restrictions the case now imposes?
    Response. As indicated in my written statement, in response to this 
court ruling, we believe a slight modification to the original proposal 
is in order. We 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.

    Question 15. Wasn't the subject of that case--the underlying rule--
a matter that commenced in the Clinton Administration?
    Response. The initial lawsuit seeking designation of critical 
habitat for the Mexican spotted owl was filed in 1994, during the 
Clinton Administration. There have been a number of legal actions and 
revisions to proposed and designated critical habitat for the species 
since that time. The critical habitat designation which was the subject 
of this particular suit was done based on a court order requiring a 
decision by January 15, 2001, also within the previous Administration.

    Question 16. Didn't the judge rule that the actions of the previous 
Fish and Wildlife Service over which Ms. Jamie Clark presided were 
``nonsensical,'' ``impermissible and contrary to law,'' and ``knowingly 
unlawful?"
    Response. The judge in this case did make those findings.

    Question 17. As the court again noting in the recent Arizona case, 
didn't the Fish and Wildlife Service argue in the 1997 NRDC case 
regarding the gnatcatcher, in defense of its decision not to designate 
critical habitat for the endangered gnatcatcher, that a ``far 
superior'' state-run protection program adequately protected the 
habitat?
    Isn't it a valid scientific conclusion that the holistic management 
plans can protect species in a way ``far superior'' to mere designation 
of critical habitat?
    Response. Yes, the Service did make that argument, and we believe 
that argument is factually valid, even though it was found legally 
insufficient under the existing provisions of the ESA. Well-designed 
and implemented conservation management plans will, in virtually every 
case, provide far greater benefits to a species than a requirement, 
which is applicable only to Federal agencies, to avoid damage to the 
same habitat,
                                 ______
                                 
   Responses of H. Craig Manson to Additional Questions from Senator 
                                 Graham
    Question 1. 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 as the Secretary of 
Defense used this provision for activities that fall under the scope of 
your agency?
    Response. To the best of my knowledge, this has not been used for 
any activities under the jurisdiction of the Service.

    Question 2. Does the need to manage former military lands with 
major contamination limit your ability to carry out other activities? 
Could you also please provide the committee with a list of contaminated 
military facilities transferred to Interior since 1990, including a 
brief description of the contamination?
    Response. Yes, the need to manage these lands can limit our 
abilities to carry to out other activities in at least two ways,
    First, given that we do not routinely receive additional funding to 
clean up, oversee cleanup, or manage these lands either when or before 
they transfer to us we routinely must use existing Service staff and 
base funds to perform these needed or required functions.
    Second, it can actually physically limit how or what we can do to 
manage the land and associated biological resources. A few examples are 
the presence of unexploded munitions or significant contamination, 
which may prevent us from actively managing the land (e.g., mowing, 
plowing, controlled burning, sign posting or fencing) to maximize the 
benefit to the biological resources (e.g., animals, plants, or habitat) 
that we are trying to manage. In addition, for safety or liability 
reasons it can result in restricting access of both employees and the 
public.
    Moreover, Attachment I lists the military facilities transferred to 
the Service since the beginning of fiscal year 1990 (starting October 
1, 1989) and associated contaminants of concern at the time of 
transfer.' Note that some of the reported contaminants of concern may 
since have been remediated. The list was provided from the Service's 
Division of Realty; the list of contaminants of concern was obtained 
from our data bases and files and from coordination with appropriate 
regional and field Environmental Contaminants staff.
                                 ______
                                 
   Responses of H. Craig Manson to Additional Questions from Senator 
                                Jeffords
    Question 1. The Sikes Act requires that INRMPs be prepared in 
cooperation with the Service and the State fish and wildlife agencies. 
In addition, the Service must comment on implementation and 
effectiveness of the INRMPs and be involved in the formal review 
process every 5 years.
    In fiscal year 2002, the Service spent $3.1 million and staff hours 
equal to 30 fulltime employees on INRMPs. What is the Service's budget 
request for this in 2004 and what would the impact be on the Service's 
budget if the DoD proposal was enacted?
    Response. To clarify our expenditures in fiscal year 2002, it 
should be rioted that the Service spent $897,000 of its appropriated 
funds and $2.2 million of Defense Department-provided funds. The 
Service has not requested additional appropriations pursuant to the 
Sikes Act authority in any year, including fiscal year 2004, due to 
many competing priorities for limited funds. The Service carries out 
its Sikes Act-related work using existing base funds, The Service's 
cooperation and coordination on INRMPs is a continuing process, All 
INRMPs are reviewed by military installations on a yearly basis and our 
feedback is requested concerning the implementation and effectiveness 
of the plans. Also, INRMPs will go through a formal review process at 
aa minimum every 5 years. This formal review process is conducted by 
DOD and involves coordination with the Service and State fish and 
wildlife agencies to again obtain mutual agreement on the plan's 
conservation, protection, and management of fish and wildlife 
resources.
    The importance of early involvement of the Service in the planning 
process will be even more crucial if the DOD proposal is enacted. Early 
coordination will ensure the adequacy of INRMPs in protecting 
threatened and endangered species and their habitats, and facilitate 
our final approval of the plans.

    Question 2. In fiscal year 2002, the Service was involved in the 
development, review and implementation of INRMPs for 225 military 
installations. It' enacted, what impact will the DoD proposal have on 
existing INRMPs?
    How many species would be impacted?
    Response. There would be no impact from this proposal on existing 
INRMPs or the species found on the installations covered by these 
plans. The Administration's proposal provides only that a facility with 
an approved INRMP for the species in question is precluded from having 
critical habitat designated for that species. This makes no change in 
the requirements for the preparation and approval of INRMPs, to the 
requirements for their contents, or in the requirement for the facility 
to consult under section 7 of the ESA due to the presence of the listed 
species.
                                 ______
                                 
Responses of H. Craig Manson to Additional Questions from Senator Boxer
    Question 1. Why does the DoD need these waivers when all of these 
laws have provisions that specifically exempt military activities in 
the case of national security?
    Response. For the issue on which the Department of the Interior has 
the primary responsibility, critical habitat, the question of 
timeliness is more of an issue than the ultimate outcome, and it is 
generally the ultimate outcome of a consultation--certainly with 
respect to the ESA--that would trigger an exemption. We do acknowledge 
that any new consultation could result in restrictions that might 
impact the military's ability to train its personnel, but the primary 
problem facing the military under the ESA is that the additional time 
needed for consultations and reinitiation of consultation if critical 
habitat were designated may preclude needed training activities.
    There are additional concerns with the accumulation of various 
restrictions from multiple critical habitat designations, none of which 
in itself may be sufficient to warrant invoking the very cumbersome 
exemption process, but which cumulatively may degrade military 
readiness and training capabilities.

    Question 2. We have. long heard that this Administration is a 
defender of State and local rights. However, the DoD exemption 
proposals are opposed by a wide variety of State and local 
organizations.
    Is it correct that the National Association of Attorneys General 
passed a resolution in March opposing DoD's exemption from 
environmental laws?
    Is it correct that the State and local air pollution regulators 
opposed DoD's exemptions from environmental laws?
    Is it correct that the State and local water quality regulators 
opposed DoD's exemptions from environmental laws?
    Is it correct that Ingrid Lindemann, Council member from Aurora, 
Colorado, and representative of the National League of Cities finds 
that ``the ramification of blanket exemption for military facilities 
and activities from such laws will serious and untenable at the local 
level?
    Does it concern the Department of the Interior that there is 
widespread local and State opposition to DoD's proposed exemptions?
    Response. From the nature of your question it appears that many of 
these statements of opposition are based on provisions of the Readiness 
and Range Preservation Initiative which are not within the jurisdiction 
of the Department of the Interior. The exemptions proposed for critical 
habitat and the Marine Mammal Protection Act would not impact on or 
relate to the responsibilities of any of these organizations or the 
governmental responsibilities of their members. Nevertheless, we take 
seriously all expressions of opinion and concern from State and local 
governments.

    Question 3. The DoD exemption proposal before us would exempt DoD 
from many of the environmental laws and regulations that apply to the 
private sector. Is this administration abandoning the longstanding 
policy that the Federal Government, including DoD, should be held to 
the same environmental enforcement standard, enforcement and rules as 
the private sector?
    Response. Again, responding to the issue for which the Department 
'of the Interior is the lead, critical habitat, it has been the policy 
of this Administration, as initiated by the previous Administration, to 
apply this definitional exclusion from critical habitat designations on 
both public and private lands for which adequate management plans are 
in place. The only difference is that we are now seeking to codify the 
policy for Department of Defense lands so as to avoid adverse impacts 
to military readiness and national security should the policy be 
overturned by the courts.
                              Attachment 1

                                       DoD Transfers to FWS: FYs 1990-2002
----------------------------------------------------------------------------------------------------------------
                                                                                            Contaminant(s) of
              Base Name                      Refuge Name              State/Region               Concern
----------------------------------------------------------------------------------------------------------------
Kingman Reef (Navy)..................  Kingman Reef NWR.......  Pacific Islands/1......  Munitions and munitions
                                                                                          constituents
Midway Islands (Navy)................  Midway Atoll NRW.......  Pacific Islands/1......  Petroleum products,
                                                                                          PCBs, lead-based
                                                                                          paint, metals
Ritidian Point (Navy)................  Guam NWR...............  Pacific Islands/1......  Petroleum products,
                                                                                          metals
Fort McClellan (Army)................  Mountain Longleaf NWR..  Alabama/4..............  Munitions and munitions
                                                                                          constituents, lead
Naval Ammunition Support Detachment    Viequez NWR............  Puerto Rico/4..........  Munitions and munitions
 Viequez.                                                                                 constituents,
                                                                                          petroleum products,
                                                                                          metals, solvents
Driver Naval Radio Transmission        Part of Nansemond NWR..  Virginia/5.............  PCBs (partially
 Facility (Navy).                                                                         remediated)
Eastern Shore/Fisherman's Island       Fisherman's Island NWR.  Virginia/5.............  Petroleum products, DDT
 (Army).                                                                                  (remediated)
Fort Meade (Army)....................  Patuxent Research        Maryland/5.............  Munitions and munitions
                                        Refuge.                                           constituents, lead,
                                                                                          PCBs, pesticides,
                                                                                          solvents
Galeville Airport (Army).............  Shawangunk Grasslands    New York/5.............  Petroleum products
                                        NWR.                                              (mostly remediated)
Loring Air Force Base (Air Force)....  Aroostook NWR..........  Maine/5................  Petroleum products,
                                                                                          PCBs, pesticides,
                                                                                          solvents (mostly
                                                                                          remediated)
Nomans Land Island (So. Weymouth       Nomans Land Island NWR.  Massachusetts/5........  Munitions and munitions
 Naval Air Station) (Navy).                                                               constituents
Pease Air Force Base (Air Force).....  Great Bay NWR..........  New Hampshire/5........  Petroleum products,
                                                                                          solvents, arsenic
                                                                                          (mostly remediated
Sudbury Training Annex, Fort Devens    Assabet River NWR......  Massachusetts/5........  Munitions and munitions
 (Army).                                                                                  constituents, arsenic
Woodbridge Research Facility/Harry     Occoquan Bay NWR.......  Virginia/5.............  PCBs (mostly
 Diamond Lab (Army).                                                                      remediated)
Multiple DoD Facilities*.............  Multiple Alaskan NWRs..  Alaska/7...............  Petroleum products,
                                                                                          PCBs, munitions and
                                                                                          munitions
                                                                                          constituents, drilling
                                                                                          muds, metals,
                                                                                          pesticides----
----------------------------------------------------------------------------------------------------------------
* A large number of military sites in Alaska are within refuges; when DoD revokes a withdrawal on one of these
  sites, the land reverts to the refuge in which it is located pursuant to the Alaska National Interest Lands
  Conservation Act and, consequently, the Service becomes a Responsible Party in the chain of liability for
  these contaminated sites,

                               __________
 Statement of Frank J. Gaffney, Jr., President and CEO, The Center for 
                            Security Policy
         support the troops--by assuring their combat readiness
    Chairman Inhofe, I would like to preface my remarks by expressing 
my personal appreciation--and, I am sure, that of all the men and women 
who wear our Nation's uniform--for your extraordinary leadership on 
issues bearing on their readiness for combat.
    I can think of no one who has devoted himself more tirelessly and 
more courageously than you have to tackling decisions that may, at some 
point, determine whether those who serve have been properly trained. 
You do so, of course, because you appreciate that the difference can 
seem inconsequential at the time the training takes place. But it can 
prove determinative--even literally a matter of life and death--in 
combat situations.
    You deserve particular recognition for your efforts to ensure that 
Atlantic-based U.S. forces continue to be able to and experience as 
part of their training the closest thing to actual combat conditions: 
large-scale, live-fire combined arms exercises. It is nothing less than 
a travesty that shortsighted political considerations have been allowed 
to trump longstanding--and abiding--national security requirements, 
denying the American military future use of its only facility in the 
Atlantic dedicated to this purpose: the island of Vieques.
    Today, as we witness American servicemen and women risking their 
lives for our safety and security, it is simply unfathomable that we 
would stint in any way on assuring theirs.
    The harrowing experiences being televised hourly from the 
battlefields of Iraq; the sorts of threats our troops are encountering 
there, in Afghanistan and other theaters of the war on terror; the 
manifest need for adaptability in the face of unexpected forms of enemy 
action--all underscore the necessity of affording the maximum latitude 
to conduct realistic training to those charged with preparing our 
troops for war.
    As you know, Mr. Chairman, I had the privilege of working early in 
my career for the late Senator Henry M. Jackson of Washington State. In 
his capacity as chairman of the Senate Energy and Natural Resources 
Committee, Scoop was the principal author of, and prime-mover behind, 
the Environmental Protection Act and numerous other legislative 
initiatives aimed at protecting our habitat.
    Like you, Scoop was also committed to the national security of the 
United States. I believe he would be horrified at the situation that 
confronts our military today as a result of environmental legislation, 
regulations and judicial rulings run amok. In fact, I am confident 
that--were Senator Jackson still with us--he would be joining you in 
supporting at least the modest redress the Defense Department seeks in 
the form of the proposed ``2003 Readiness and Range Preservation 
Initiative'' now before the Congress.
    If anything, I would respectfully suggest that far more relief is 
needed than that called for in these minimalist proposals.
    Especially in time of war, we should return the training ranges and 
facilities our government and people have dedicated to the military's 
use to their fullest necessary utilization. By failing to do so, we are 
clearly subordinating national security to what is--under present and 
foreseeable circumstances--an excessive, and currently insupportable, 
regard for the habitats of certain endangered species.
    One of our military's finest leaders, Lieutenant General Edward 
Hanlon, Jr. USMC, spoke for all those in uniform when he testified in 
May 2001 before the House Armed Services Committee in his capacity at 
the time as the Commanding General of Camp Pendleton:

     . . . Our ability to train effectively is being slowly eroded by 
    encroachment on many fronts. Urbanization, increasing environmental 
    restrictions, and increasing civilian demands for airspace, land, 
    sea space, and radio frequencies threaten the long-term, sustained 
    use of Marine Corps bases and ranges. Encroachment is a serious and 
    growing challenge.
    Solutions are possible--we must achieve the necessary and right 
    balance between military readiness, encroachment pressures, and 
    stewardship responsibilities. . . .

    Mr. Chairman, I believe the ``2003 Readiness and Range Preservation 
Initiative'' does strike a balance. I fear, frankly, that it favors too 
much the status quo concerning environmental protection--at the expense 
of military training and the consequent ability of our service 
personnel to survive and prevail in combat.
    I hope that the Congress will, at an absolute minimum, provide the 
relief envisioned in this legislative initiative. I would urge the 
members of this committee, however, to give serious consideration as 
well to further steps that can materially contribute to the realism and 
utility of our military training exercises--and, therefore, to the 
likelihood that our loved ones in uniform will be able to conduct their 
missions safely and successfully.
    I appreciate being afforded the opportunity to contribute to the 
committee's deliberations on this important matter and look forward to 
responding to the members' questions.
                                 ______
                                 
 Responses of Frank Gaffney to Additional Questions from Senator Inhofe
    Question 1. As you noted in your testimony, your former employer 
Washington Democrat Senator Scoop Jackson was a prime mover behind the 
National Environmental Policy Act.
    This committee has oversight over NEPA and it has been a problem 
for the military. Let's talk about this problem for a moment in this 
oversight hearing.
    For example, the Navy spent 20 million dollars on an environmental 
impact statement and study and documentation just to test its LFA 
SONAR. For that it took 6 years. After it was all over, the Navy was 
sued by NRDC who said that this analysis was insufficient, and the Navy 
is in the process of losing that case by all indications of the judge.
    A loss of that case would mean the United States cannot use this 
SONAR system.
    Can you tell me about the need for the use of this sonar system?
    Response. As I indicated in the course of the hearing, the LFA 
Sonar is one of the tools the Navy desperately needs to counter a real 
and growing danger: the proliferation worldwide of very quiet diesel-
and battery-powered submarines capable of eluding many, if not all, of 
the United States' currently deployed anti-submarine warfare sensor 
technologies.
    I think this proliferation should be considered no less serious 
than that of other weapons of mass destruction insofar as such a 
submarine could, in the event it is able to penetrate Navy battle group 
defenses, be able to destroy aircraft carriers and other ships manned 
by hundreds or even thousands of U.S. personnel.
    As a result, I am deeply troubled by the use of environmental 
regulations to impede or prevent the development of the LFA Sensor 
technology. I fear that if allowed to continue, it will result in the 
tragic--and avoidable--loss of life among American servicemen and 
women.

    Question 2. Can you tell me you thoughts about what your former 
boss Scoop Jackson would have thought about this use of NEPA?
    Response. As I also indicated during the hearing, I am convinced 
that, were Senator Jackson alive today, he would have been appalled by 
what he could only perceive as an abuse of NEPA to the detriment of the 
national security, whose enhancement he considered to be his surpassing 
responsibility. By the way, I am joined in that assessment by Dr. 
Robert Kaufman, the author of an outstanding biography of Senator 
Jackson's long and distinguished career in public service.

    Question 3. Can you tell me where our military could end up without 
being able to continue to operate at least under the conditions that 
the Clinton Administration applied?
    Response. My assessment is that the United States military will, 
over time, become ever less capable of performing the tasks assigned to 
it unless relief is provided from the combined effects of civilian 
encroachment and creeping--if not actually galloping--environmental 
restrictions at least to the extent proposed by the Clinton 
Administration. There is, of course, no way to say in advance at 
exactly what point these effects will give rise to an intolerable 
situation (e.g., one in which elements of the armed forces are 
demonstrably unready for combat). But there can be little doubt that 
that day will inexorably arrive if corrective actions are not taken.
    When that day does come, the repercussions will probably be 
measured in the avoidable death of both military personnel and of 
civilians they are sworn to defend. As Chairman Inhofe has observed, 
some of the former have already been lost in friendly fire accidents in 
Kuwait directly attributable to the lack of live-fire training now no 
longer available to Atlantic-based servicemen and women being sent into 
harm's way. Do we need to suffer still more such losses before 
addressing this danger?

    Question 4. We see each other quite regularly, so I know the answer 
to this question, but for the record and the audience, would you mind 
going into your qualifications regarding defense policy?
    Response. Over the past twenty-seven years, I have been privileged 
to work in a number of national security-related positions, both in 
government and out. From 1976 until 1983, I served in various 
capacities in the U.S. Senate including: working for the Permanent 
Subcommittee on Investigations on foreign and defense policy matters; 
for its then-chairman, Senator Jackson, as a legislative assistant 
supporting him in his capacity as a member of the Armed Services 
Committee; and as a professional staff member of that committee under 
Chairman John Tower.
    From 1983-1987, I was the Deputy Assistant Secretary of Defense for 
Nuclear Forces and Arms Control Policy. During the last 7 months of 
that period
    I acted as the Assistant Secretary of Defense for International 
Security Policy following my nomination to that post by President 
Reagan.
    Since 1988, I have been the President and CEO of the Center for 
Security Policy, a non-profit institute focused on national security 
and foreign policy issues. Over the past 15 years, I have been a 
consultant to the Defense Department, a columnist for the Washington 
Times and numerous other publications and a frequent commentator on 
national and international television and radio programs concerning 
international affairs and related matters.

    Question 5. In your expert opinion, then, are you convinced this 
legislation is advisable?
    Response. In my opinion, the pending legislation, intended 
basically to preserve the status quo with respect to environmental 
restrictions on U.S. military and training activities, is the bare 
minimum required. I would personally like to see still-greater latitude 
afforded to the Defense Department to ensure that its military 
personnel are fully prepared to perform their vital missions. At the 
very least, I strongly urge that the Congress provide no less relief in 
this area than that sought by the President.
                               __________
 Statement of Barry W. Holman, Director Defense Infrastructure Issues, 
                       General Accounting Office
 military training: dod approach to managing encroachment on training 
                         ranges still evolving
    Mr. Chairman and members of the committee: I am pleased to have the 
opportunity to discuss the results of our work involving the 
constraints that encroachment places on military training. As you know, 
senior Department of Defense (DOD) and service officials have testified 
that they face growing difficulties in carrying out realistic training 
at installations and training ranges\1\ because of so-called 
``encroachment''\2\ issues, which limit their ability to train military 
forces at the desired levels and proficiencies. The eight encroachment 
issues identified by DOD are urban growth around military 
installations, competition for radio frequency spectrum; air pollution; 
noise pollution; competition for airspace; unexploded ordnance and 
munitions components;\3\ endangered species habitat; and protected 
marine resources.
---------------------------------------------------------------------------
     \1\The term ``training ranges'' in this testimony refers to air, 
live-fire, ground maneuver, and sea ranges.
     \2\DOD defines encroachment as the cumulative result of any and 
all outside influences that inhibit normal military training and 
testing.
     \3\Unexploded ordnance are munitions that (1) have been primed, 
fused, armed, or otherwise prepared for action; (2) have been fired, 
dropped, launched, projected, or placed in such a manner as to 
constitute a hazard to operations, installations, personnel, or 
material; and (3) remain unexploded either by malfunction, design or 
any other cause. Munitions components--which DOD calls 
``constituents''--include things such as propellants, explosives, 
pyrotechnics, chemical agents, metal parts, and other inert components 
that can pollute the soil or groundwater.
---------------------------------------------------------------------------
    My testimony is largely built on work we reported on last year 
concerning the effects of encroachment in the continental United States 
on military training and readiness.\4\ Last year we also reported on 
the constraints on training of U.S. forces overseas.\5\ The findings of 
the two reviews have some similarities. Today, I would like to briefly 
highlight our findings regarding (1) the growing impact of encroachment 
on training range capabilities, (2) DOD's efforts to document the 
effects of encroachment on readiness and costs, and (3) DOD's process 
in addressing encroachment.
---------------------------------------------------------------------------
     \4\U.S. General Accounting Office, Military Training: DOD Lacks a 
Comprehensive Plan to Manage Encroachment on Training Ranges, GAO-02-
614 (Washington, DC.; June 11, 2002). The chairmen of the Committee on 
Government Reform and its Subcommittee on National Security, Emerging 
Threats and International Relations, House of Representatives, 
requested this review.
     \5\U.S. General Accounting Office, Military Training: Limitations 
Exist Overseas but Are Not Reflected in Readiness Reporting, GAO-02-525 
(Washington, DC.: Apr. 30, 2002). The chairman of the Subcommittee on 
Readiness and Management Support, Committee on Armed Services, U.S. 
Senate, requested this review.
---------------------------------------------------------------------------
Summary
    On the basis of our observations and discussions with officials at 
installations and major commands we visited last year here in the 
United States, we obtained numerous examples where encroachment had 
affected some training range capabilities, requiring workarounds--or 
adjustments to training events--and, in some cases, limited training. 
We identified similar effects overseas. The potential problem with 
workarounds is that they lack realism and can lead to the practice of 
tactics that are contrary to those used in combat. Officials, both 
stateside and abroad, reported that encroachment at times limits the 
time that training ranges are available and the types of training that 
can be conducted. Service officials believe that urbanization and 
population growth is primarily responsible for encroachment in the 
United States and is likely to cause more training range losses in the 
future.
    Despite concerns voiced repeatedly by DOD officials about the 
effects of encroachment on training, DOD's readiness reports did not 
indicate the extent to which encroachment was adversely affecting 
training readiness and costs. In fact, at the time we did our review, 
most readiness reports showed that units had a high state of readiness; 
and they were largely silent on the issue of encroachment. Recently, 
however, one DOD readiness report indicated that the Air Force has 
attributed environmental encroachment to a reduced capability to 
conduct flight training.\6\ We have previously reported on limitations 
in DOD's readiness reporting.\7\ While improvements in readiness 
reporting can and should be made to better show any shortfalls in 
training, DOD's ability to fully assess training limitations and their 
overall impact on training capabilities and readiness will be limited 
without (1) more complete baseline data, such as a comprehensive data 
base, on all training range capabilities and the services' training 
range requirements and (2) full consideration of how live training 
capabilities may be complemented by other forms of training, such as 
those available through training devices and simulations. These actions 
will not replace other steps needed to deal with encroachment, but they 
are key to better define the magnitude of the encroachment problem now 
and in the future. At the same time, it is important to note that while 
it is widely recognized that encroachment results in workarounds that 
can increase training costs, those costs are not easily aggregated to 
measure their full effect.
---------------------------------------------------------------------------
     \6\U.S. Department of Defense, Quarterly Readiness Report to the 
Congress, Institutional Training Readiness Report for Fiscal Year 2002, 
Unclassified Annex E (Washington, DC.: Jan. 2003).
     \7\U.S. General Accounting Office, Military Readiness: New 
Reporting System Is Intended to Address Long-Standing Problems, but 
Better Planning Is Needed, GAO-03-456 (Washington, DC.: Mar. 28, 2003).
---------------------------------------------------------------------------
    Although DOD has made some progress in addressing individual 
encroachment issues, that effort is still evolving; and more work will 
be required to put in place a comprehensive plan, as we recommended 
earlier, that clearly identifies steps to be taken, goals and 
milestones to track progress, and required funding. We reported last 
year that the department had prepared draft action plans that deal with 
each encroachment issue separately, but information was limited on 
specific actions planned, timeframes for completing them, and funding 
needed. In December 2001, DOD directed an Integrated Product Team to 
act as the coordinating body for all encroachment issues, develop a 
comprehensive set of legislative and regulatory proposals by January 
2002, and formulate and manage outreach efforts. Last year and just 
recently, DOD submitted a package of legislative proposals, which it 
describes as clarifications, seeking to modify several statutory 
requirements. We are aware that consideration of these and other 
related legislative proposals affecting existing environmental 
legislation will need to include potential tradeoffs among multiple 
policy objectives and issues on which we have not taken a position. At 
the same time, we also understand that DOD recently asked the services 
to develop procedures for invoking the national security exceptions 
under a number of environmental laws. Historically, DOD and the 
services have been reluctant to seek such exceptions; and we are aware 
of only a couple of instances where this has been done. In our report 
last June on stateside encroachment issues, we made several 
recommendations aimed at helping DOD develop a comprehensive plan for 
dealing with encroachment and improve the information and data 
available for identifying and reporting on the effects of 
encroachment.\8\ Our two reports last year recommended that DOD develop 
reports that accurately capture the causes of training shortfalls and 
objectively report units' ability to meet their training requirements. 
Following our reports, DOD issued a range sustainment directive\9\ to 
establish policy and assign responsibilities for the sustainment of 
test and training ranges; and the Special Operations Command developed 
a data base identifying the training ranges it uses, type of training 
conducted, and restrictions on training. The department also plans to 
develop a set of internal policies and procedures based on the range 
sustainment directive, strengthen and empower its management structure 
to deal with range issues, and take a more proactive role in working 
with local governments and organizations.
---------------------------------------------------------------------------
     \8\GAO-02-614.
     \9\U.S. Department of Defense, Directive: Sustainment of Ranges 
and Operating Areas (OPAREAs), 3200.15, Jan. 10, 2003.
---------------------------------------------------------------------------
    We are not making any new recommendations in this testimony. As you 
may be aware, Mr. Chairman, section 366 of the Bob Stump National 
Defense Authorization Act for Fiscal Year 2003 requires a series of 
yearly reports to the Congress dealing with encroachment issues 
beginning this year, and a requirement for GAO to review those reports. 
The first of those reports was required to be submitted along with the 
President's budget for fiscal year 2004. That report was to describe 
DOD's progress in developing a comprehensive plan to use existing 
authorities to address training constraints on the use of military 
lands, marine areas, and airspace that are available in the United 
States and overseas for training. However, to our knowledge, DOD has 
not yet issued this report. The Act also requires the submission of a 
report not later than June 30, 2003, on plans of the department to 
improve its readiness reporting to reflect the readiness impact that 
training constraints have on specific units of the armed forces.
Background
    Military ranges and training areas are used primarily to test 
weapon systems and train military forces. Required facilities include 
air ranges for air-to-air, air-to-ground, drop zone, and electronic 
combat training; live-fire ranges for artillery, armor, small arms, and 
munitions training; ground maneuver ranges to conduct realistic force-
on-force and live-fire training at various unit levels; and sea ranges 
to conduct ship maneuvers for training.
    According to DOD officials, there has been a slow but steady 
increase in encroachment issues that have limited the use of training 
facilities, and the gradual accumulation of these issues increasingly 
threatens training readiness. DOD has identified eight such 
encroachment issues:
      Designation of critical habitat under the Endangered 
Species Act of 1973. Under the Act, agencies are required to ensure 
that their actions do not destroy or adversely modify habitat that has 
been designated for endangered or threatened species. Currently, over 
300 such species are found on military installations. In 1994, under 
the previous administration 14 agencies signed a Federal memorandum of 
understanding\10\ for implementing the Endangered Species Act.\11\ The 
agencies agreed to establish or use existing regional interagency 
working groups to identify geographic areas within which the groups 
would coordinate agency actions and overcome barriers to conserve 
endangered species and their ecosystems. Such cooperative management 
could help DOD share the burden of land use restrictions on military 
installations that are caused by encroachment issues, but 
implementation of this approach has been limited. We are currently 
reviewing this issue.\12\
---------------------------------------------------------------------------
     \10\Federal Interagency Memorandum of Understanding for 
Implementation of the Endangered Species Act, September 1994.
     \11\The 14 Federal agencies included the Department of 
Agriculture's Forest Service; the Department of Defense; the U.S Army 
Corps of Engineers; the Department of Commerce's National Marine 
Fisheries Service; the Department of the Interior's Bureau of Land 
Management, Bureau of Mines, Bureau of Reclamation, Fish and Wildlife 
Service, Minerals Management Service, and National Park Service; the 
Department of Transportation's Federal Aviation Administration, Federal 
Highway Administration, and Coast Guard; and the Environmental 
Protection Agency.
     \12\At the request of the Committee on Government Reform and its 
Subcommittee on National Security, Emerging Threats and International 
Relations, House of Representatives, we are reviewing (1) the extent to 
which management of endangered species and related land use 
restrictions are shared by DOD and other Federal landowners and (2) the 
efforts that DOD and/or other Federal landowners have undertaken to 
promote cooperative management and additional steps needed to enhance 
this approach. We expect to report on the results of this work later 
this year.
---------------------------------------------------------------------------
      Application of environmental statutes to military 
munitions. DOD believes that the Environmental Protection Agency could 
apply environmental statutes to the use of military munitions, shutting 
down or disrupting military training. According to DOD officials, 
uncertainties about future application and enforcement of these 
statutes limit their ability to plan, program, and budget for 
compliance requirements.
      Competition for radio frequency spectrum. The 
telecommunications industry is pressuring for the reallocation of some 
of the radio frequency spectrum from DOD to commercial control. DOD 
reports that over the past decade, it has lost about 27 percent of the 
frequency spectrum allocated for aircraft telemetry. And we previously 
reported additional allocation of spectrum could affect space systems, 
tactical communications, and combat training.\13\
---------------------------------------------------------------------------
     \13\U.S. General Accounting Office, Defense Spectrum Management: 
More Analysis Needed to Support Spectrum Use Decisions for the 1755-
1850MHz Band, GAO-01-795 (Washington, DC.: Aug. 20, 2001).
---------------------------------------------------------------------------
      Marine regulatory laws that require consultation with 
regulators when a proposed action may affect a protected resource. 
Defense officials say that the process empowers regulators to impose 
potentially stringent measures to protect the environment from the 
effects of proposed training in marine environments.
      Competition for airspace. Increased airspace congestion 
limits the ability of pilots to train as they would fly in combat.
      Clean Air Act requirements for air quality. DOD officials 
believe the Act requires controls over emissions generated on Defense 
installations. New or significant changes in range operations also 
require emissions analyses, and if emissions exceed specified 
thresholds, they must be offset with reductions elsewhere.
      Laws and regulations mandating noise abatement. DOD 
officials stated that weapon systems are exempt from the Noise Control 
Act of 1972, but DOD must assess noise impact under the National 
Environmental Policy Act. As community developments have expanded 
closer to military installations, concerns over noise from military 
operations have increased.
      Urban growth. DOD says that unplanned or ``incompatible'' 
commercial or residential development near training ranges compromises 
the effectiveness of training activities. Local residents have filed 
lawsuits charging that military operations lowered the value or limited 
the use of their property.
    To the extent that encroachment adversely affects training 
readiness, opportunities exist for the problems to be reported in 
departmental and military service readiness reports. The Global Status 
of Resources and Training System is the primary means units use to 
compare readiness against designed operational goals.\14\ The system's 
data base indicates, at selected points in time, the extent to which 
units possess the required resources and training to undertake their 
wartime missions. In addition, DOD is required under 10 U.S.C. 117 to 
prepare quarterly readiness reports to Congress. The reports are based 
on briefings to the Senior Readiness Oversight Council, a forum 
assisted by the Defense Test and Training Steering Group. In June 2000, 
the council directed the steering group to investigate encroachment 
issues and develop a comprehensive plan of action.
---------------------------------------------------------------------------
     \14\The Global Status of Resources and Training System, which 
units use to report their readiness status monthly or whenever a change 
occurs. Units report readiness in four resource areas, including 
training. If a unit is not at the highest readiness level, it must 
identify the reasons from a list that includes training areas. 
Commanders may also include narrative statements with more detailed 
explanations.
---------------------------------------------------------------------------
    The secretaries of the military services are responsible for 
training personnel and for maintaining their respective training ranges 
and facilities. Within the Office of the Secretary of Defense, the 
Under Secretary of Defense for Personnel and Readiness develops 
policies, plans, and programs to ensure the readiness of the force and 
provides oversight on training; the Deputy Under Secretary of Defense 
for Installations and Environment develops policies, plans, and 
programs for DOD's environmental, safety, and occupational health 
programs, including compliance with environmental laws, conservation of 
natural and cultural resources, pollution prevention, and explosive 
safety; and the Director, Operational Test and Evaluation, provides 
advice on tests and evaluations.
Encroachment Has Reduced Some Capabilities, and Its Effects Are Likely 
        to Grow
    On the basis of what we have seen, the impact of encroachment on 
training ranges has gradually increased over time, reducing some 
training capabilities. Because most encroachment problems are caused by 
urban development and population growth, these problems are expected to 
increase in the future.
    Although the effects vary by service and by individual 
installation, encroachment has generally limited the extent to which 
training ranges are available or the types of training that can be 
conducted. This limits units' ability to train as they would expect to 
fight and causes workarounds that may limit the amount or quality of 
training. Installations overseas all reported facing similar training 
constraints.
    Some of the problems reported by installations we visited last year 
were those related to urban growth, radio frequency spectrum 
interference, air quality, noise, air space, and endangered species 
habitat. For example, in response to local complaints, Fort Lewis, 
Washington, voluntarily ceased some demolitions training. Eglin Air 
Force Base, Florida, officials reported the base's major target control 
system received radio frequency spectrum interference from nearby 
commercial operators. Nellis Air Force Base, Nevada, officials reported 
that urban growth near the base and related safety concerns had 
restricted flight patterns of armed aircraft, causing mission delays 
and cancellations. They also reported that they receive approximately 
250 complaints about noise each year. About 10 percent of Marine Corps 
Base Camp Pendleton, California, had been designated as critical 
habitat for endangered species. Atlantic Fleet officials reported 
encroachment problems stemming from endangered marine mammals and 
noise. They said that the fleet's live-fire exercises at sea were 
restricted, and night live-fire training was not allowed.
    More recently, in January 2003, DOD's Special Operations Command 
reported that its units encounter a number of obstacles when scheduling 
or using training ranges.\15\ According to the report, the presence of 
endangered species and marine mammals on or near ranges result in 
restrictions on training for at least part of the year--closing the 
area to training, prohibiting live fire, or requiring modified 
operations. For example, a variety of endangered species live on the 
training areas of the Navy Special Warfare Command in California, 
particularly on Coronado and San Clemente islands. Due to environmental 
restrictions, Navy Special Warfare units report that they can no longer 
practice immediate action drills on Coronado beaches; they cannot use 
training areas in Coronado for combat swimmer training; and they cannot 
conduct live-fire and maneuver exercises on much of San Clemente Island 
during some seasons. In addition, the Special Operations Command owns 
no training ranges of its own and largely depends on others for the use 
of their training ranges. As a result, command officials advised us 
that they must train under operational and scheduling restrictions 
imposed by its host commands. For example, the command normally trains 
at night; and because range management personnel are not often 
available at night, this prevents such training. Also, on many ranges, 
the command reported that priority is given to larger units than 
special operations units causing it to postpone or cancel training. 
According to the report, ranges are also inadequately funded for 
construction, maintenance, repairs, and upgrades. This results in some 
commanders using their own funds in order to prevent the ranges from 
becoming dangerous or unusable.
---------------------------------------------------------------------------
     \15\U.S. Special Operations Command, Tiger Team Report: Global 
Special Operations Forces Range Study, Jan. 27, 2003. The Special 
Operations Command recommended that all components needed to create 
master range plans that addressed their current and future range issues 
and solutions. The command also recommended that plans identify and 
validate training requirements and facilities available and define the 
acceptable limits of workarounds.
---------------------------------------------------------------------------
    The Special Operations Command, while expressing concern for the 
future, reported that none of the eight encroachment issues identified 
by DOD had yet stopped military training, due mostly to the creativity 
and flexibility of its commanders and noncommissioned officers. In 
general, when obstacles threaten training, the unit will find a 
workaround to accomplish the training. In some instances, the unit may 
travel to another training facility, costing additional money for 
transportation and potentially requiring an extended stay at the 
training site. By sending units away to train, the command limits its 
ability to send people on future travel for training or missions due to 
efforts to control the number of days per year that servicemembers are 
deployed away from home. Other workarounds consist of commands using 
different equipment, such as plastic-tipped bullets; changing 
maneuvering, firing, and training methods to overcome training 
obstacles; and using facilities that need repair. According to the 
Special Operations Command, all of these workarounds expend more funds 
and manpower in order to accomplish its training mission.
    DOD and military service officials said that many encroachment 
issues are related to urban growth around military installations. They 
noted that most, if not all, encroachment issues result from urban and 
population growth and that around DOD installations this is increasing 
at a rate higher than the national average. Figure 1 illustrates the 
increase in urban growth encroachment near Fort Benning, Georgia, while 
the fort has remained relatively unchanged. According to DOD officials, 
new residents near installations often view military activities as an 
infringement on their rights, and some groups have organized in efforts 
to reduce operations such as aircraft and munitions training. At the 
same time, according to Defense officials, the increased speed and 
range of weapon systems are expected to increase training range 
requirements.
    Figure 1: Historical and Projected Urban Growth Near Fort Benning, 
Georgia:
    [See PDF for image]
    Note: (Top left to right) Urban growth near Fort Benning, Georgia, 
in 1955 and 1985. (Bottom left to right) Urban growth near Fort 
Benning, Georgia, in 1996 and projected for 2008.
    [End of figure]

Effects of Encroachment on Training Readiness and Costs Have Not Been 
        Reflected in Most Service Readiness Reports
    Despite the loss of some training range capabilities, service 
readiness data did not show the impact of encroachment on training 
readiness. However, DOD's January 2003 quarterly report to Congress did 
tie an Air Force training issue directly to encroachment.
    Even though DOD officials in testimoneys and many other occasions 
have repeatedly cited encroachment as preventing the services from 
training to standards, DOD's primary readiness reporting system did not 
reflect the extent to which encroachment was a problem. In fact, it 
rarely cited training range limitations at all. Similarly, DOD's 
quarterly reports to Congress, which should identify specific readiness 
problems, hardly ever mentioned encroachment as a problem.
    This is not surprising to us because we have long reported on 
limitations in DOD's readiness reporting system and the need for 
improvements; our most recent report was issued just last week.\16\ 
Furthermore, on the basis of our prior reports on readiness issues and 
our examination of encroachment, we do not believe the absence of data 
in these reports concerning encroachment should be viewed simply as 
``no data, no problem!'' Rather, as with other readiness issues we have 
examined over time, it suggests a lack of attention on the part of DOD 
in fully assessing and reporting on the magnitude of the encroachment 
problem.
---------------------------------------------------------------------------
     \16\GAO-03-456.
---------------------------------------------------------------------------
    However, DOD's most recent quarterly report did indicate a training 
issue that is tied directly to encroachment. The January 2003 
Institutional Training Readiness Report showed that the Air Force has 
rated itself as C-2 for institutional flight training.\17\ This 
indicates that it is experiencing some deficiencies with limited impact 
on capabilities to perform required institutional training. The Air 
Force attributed this to training range availability and encroachment 
combined with environmental concerns that are placing increasing 
pressure on its ability to provide effective and realistic training. 
The Air Force also reported that sortie\18\ cancellations are becoming 
a more common occurrence and may soon adversely impact the quality of 
training. For example, the spotting of a Sonoran Pronghorn on the Barry 
M. Goldwater Range forces immediate cancellation or relocation of 
scheduled missions.
---------------------------------------------------------------------------
     \17\By a way of comparison, C-1 rating is when a unit is at its 
highest readiness level and is able to fully meet its mission.
     \18\A sortie is one mission by a single aircraft.
---------------------------------------------------------------------------
    Readiness reporting can and should be improved to address the 
extent of training degradation due to encroachment and other factors. 
However, it will be difficult for DOD to fully assess the impact of 
encroachment on its training capabilities and readiness without (1) 
obtaining more complete information on both training range requirements 
and the assets available to support those requirements and (2) 
considering to what extent other complementary forms of training may 
help mitigate some of the adverse impacts of encroachment. The 
information is needed to establish a baseline for measuring losses or 
shortfalls.
    We previously reported that the services did not have complete 
inventories of their training ranges and that they do not routinely 
share available inventory data with each other (or with other 
organizations such as the Special Operations Command). DOD officials 
acknowledge the potential usefulness of such data and have some efforts 
underway to develop these data. However, since there is no complete 
directory of DOD-wide training areas, commanders sometimes learn about 
capabilities available on other military bases by chance. All this 
makes it extremely difficult for the services to leverage assets that 
may be available in nearby locations, increasing the risk of 
inefficiencies, lost time and opportunities, delays, added costs, and 
reduced training opportunities.
    Although the services have shared training ranges, these 
arrangements are generally made through individual initiatives, not 
through a formal or organized process that easily and quickly 
identifies all available infrastructure. Last year, for example, our 
reported on encroachment\19\ noted that the Navy Special Operations 
forces recently learned that some ranges at the Army's Aberdeen Proving 
Grounds in Maryland are accessible from the water--a capability that is 
a key requirement for Navy team training. Given DOD's increasing 
emphasis on joint capabilities and operations, having an inventory of 
defense-wide training assets would seem to be a logical step toward a 
more complete assessment of training range capabilities and shortfalls 
that may need to be addressed.
---------------------------------------------------------------------------
     \19\GAO-02-614.
---------------------------------------------------------------------------
    This issue was recently reinforced by the January 2003 range report 
by the Special Operations Command, which found that none of the 
services had joint data bases or management tools to combine all 
training ranges into a single tool accessible to all commands. The 
command concluded that such a centralized data base would contribute to 
improving unit readiness and mission success for all components. At the 
same time, we cannot be sure of the extent to which recent military 
operations in the Middle East could impact future training 
requirements. DOD will need to reassess lessons learned from these 
operations.
    Each service has, to varying degrees, assessed its training range 
requirements and limitations due to encroachment. For example, the 
Marine Corps has completed one of the more detailed assessments of the 
degree to which encroachment has affected the training capability of 
Camp Pendleton, California. The assessment determined to what extent 
Camp Pendleton could support the training requirements of two unit 
types and two specialties by identifying the tasks that could be 
conducted to standards in a ``continuous'' operating scenario (e.g., an 
amphibious assault and movement to an objective) or in a fragmented 
manner (tasks completed anywhere on the camp). The analysis found that 
from 60 to 69 percent of continuous tasks and from 75 to 92 percent of 
the other training tasks could be conducted to standards. Some of the 
tasks that could not be conducted to standards were the construction of 
mortar-and artillery-firing positions outside of designated areas, 
cutting of foliage to camouflage positions, and terrain marches. Marine 
Corps officials said they might expand the effort to other 
installations. At the same time, the Air Force has funded a study at 
Shaw Air Force Base, South Carolina, which focuses on airspace 
requirements; and the Center for Navy Analysis is reviewing 
encroachment issues at Naval Air Station Fallon, Nevada. We have not 
had an opportunity to review the progress or the results of these 
efforts. In its 2003 range study report, the Special Operations Command 
compiled a data base identifying the training ranges it uses, type of 
training conducted, and restrictions on training. In its study, the 
command recommended that a joint training range data base be produced 
and made available throughout DOD so that all training ranges, 
regardless of service ownership, may be efficiently scheduled and 
utilized.
    While recent efforts show increased activity on the part of the 
services to assess their training requirements, they do not yet 
represent a comprehensive assessment of the impacts of encroachments. 
We have also previously reported that the services have not 
incorporated an assessment of the extent that other types of 
complementary training could help offset shortfalls. We believe these 
assessments, based solely on live training, may overstate an 
installation's problems and do not provide a complete basis for 
assessing training range needs. A more complete assessment of training 
resources should include assessing the potential for using virtual or 
constructive simulation technology to augment live training. However, 
based on our prior work I must emphasize, Mr. Chairman, that these 
types of complementary training cannot replace live training and cannot 
fully eliminate the impact of encroachment, though they may help 
mitigate some training range limitations.
    In addition, while some service officials have reported increasing 
costs because of workarounds related to encroachment, the services' 
data systems do not capture these costs in any comprehensive manner. In 
its January 2003 report, the Special Operations Command noted that the 
services lacked a metric-base reporting system to document the impact 
of encroachment or track the cost of workarounds in either manpower or 
funds. We noted last year that DOD's overall environmental conservation 
funding, which also covers endangered species management, had 
fluctuated, with an overall drop (except for the Army) in obligations 
since 1999. If the services are indeed conducting more environmental 
assessments or impact analyses as a result of encroachment, the 
additional costs should be reflected in their environmental 
conservation program obligations.
Progress in Addressing Encroachment Issues Still Evolving
    DOD has made some progress in addressing individual encroachment 
issues, including individual action plans and legislative proposals. 
But more will be required to put in place a comprehensive plan that 
clearly identifies steps to be taken, goals and milestones to track 
progress, and required funding. Senior DOD officials recognized the 
need to develop a comprehensive plan to address encroachment issues 
back in November 2000, but efforts to do so are still evolving. To 
their credit, DOD and the services are increasingly recognizing and 
initiating steps to examine range issues more comprehensively and in a 
less piecemeal fashion.
    Recent efforts began in 2000 when a working group of subject matter 
experts was tasked with drafting action plans for addressing the eight 
encroachment issues. The draft plans include an overview and analysis 
of the issues; and current actions being taken, as well as short-, mid-
, and long-term strategies and actions to address the issues. Some of 
the short-term actions implemented include the following.
      DOD has finalized, and the services are implementing, a 
Munitions Action Plan--an overall strategy for addressing the life-
cycle management of munitions to provide a road map that will help DOD 
meet the challenges of sustaining its ranges.
      DOD formed a Policy Board on Federal Aviation Principles 
to review the scope and progress of DOD activities and to develop the 
guidance and process for special use air space.
      DOD formed a Clean Air Act Services' Steering Committee 
to review emerging regulations and to work with the Environmental 
Protection Agency and the Office of Management and Budget to protect 
DOD's ability to train.
      DOD implemented an Air Installation Compatible Use Zone 
Program to assist communities in considering aircraft noise and safety 
issues in their land use planning.
    Some future strategies and actions identified in the draft plans 
addressing the eight encroachment issues include the following.
      Enhancing outreach efforts to build and maintain 
effective working relationships with key stakeholders by making them 
aware of DOD's need for training ranges, its need to maintain 
readiness, and its need to build public support for sustaining training 
ranges.
      Developing assessment criteria to determine the 
cumulative effect of all encroachment restrictions on training 
capabilities and readiness. The draft plan noted that while many 
examples of endangered species/ critical habitat and land use 
restrictions are known, a programmatic assessment of the effect these 
restrictions pose on training readiness has never been done.
      Ensuring that any future base realignment and closure 
decisions thoroughly scrutinize and consider the potential encroachment 
impact and restrictions on operations and training of recommended base 
realignment actions.
      Improving coordinated and collaborative efforts between 
base officials and city planners and other local officials in managing 
urban growth.
    In December 2001, the Deputy Secretary of Defense established a 
senior-level Integrated Product Team to act as the coordinating body 
for encroachment efforts and to develop a comprehensive set of 
legislative and regulatory proposals by January 2002. The team agreed 
on a set of possible legislative proposals for clarifying some 
encroachment issues. After internal coordination deliberations, the 
proposals were submitted in late April 2002 to Congress for 
consideration. According to DOD, the legislative proposals sought to 
``clarify'' the relationship between military training and a number of 
provisions in various conservation and compliance statutes, including 
the Endangered Species Act, the Migratory Bird Treaty Act, the Marine 
Mammal Protection Act, and Clean Air Act. DOD's proposals would, among 
other things, do the following:
      Preclude designation under the Endangered Species Act of 
critical habitat on military lands for which Sikes Act Integrated 
Natural Resources Management Plans have been completed. At the same 
time, the Endangered Species Act requirement for consultation between 
DOD and other agencies on natural resource management issues would 
remain.
      Permit DOD to ``take'' migratory birds under the 
Migratory Bird Treaty Act without action by the Secretary of the 
Interior, where the taking would be in connection with readiness 
activities, and require DOD to minimize the taking of migratory birds 
to the extent practicable without diminishment of military training or 
other capabilities, as determined by DOD.
      Modify the definition of ``harassment'' under the Marine 
Mammal Protection Act as it applies to military readiness 
activities.\20\
---------------------------------------------------------------------------
     \20\The Marine Mammal Protection Act's definition of 
``harassment'' has been a source of confusion. According to DOD, the 
statute defines ``harassment'' in terms of ``annoyance'' or the 
``potential to disturb,'' standards that DOD asserts are difficult to 
interpret. The statute, 10 U.S.C. 1362, defines the term as any act of 
pursuit, torment, or annoyance which has the potential to injure or 
disturb a marine mammal by causing disruption to behavioral patterns 
such as migration, nursing, feeding, breeding, and sheltering.
---------------------------------------------------------------------------
      Modify the conformity provisions of the Clean Air Act. 
The proposal would maintain the Department's obligation to conform 
military readiness activities to applicable State Implementation Plans 
but would give DOD 3 years to demonstrate conformity. In the meantime, 
DOD could continue military readiness activities.
      Change the definition of solid waste under the Solid 
Waste Disposal Act to generally exclude explosives, unexploded 
ordnance, munitions, munition fragments, or constituents when they are 
used in military training, research, development, testing and 
evaluation; when not removed from an operational range; when promptly 
removed from an off-range location; or when recovered, collected, and 
destroyed on range at operational ranges. Solid waste would not include 
buried unexploded ordnance when burial was not a result of product use.
    Of the above proposals, Congress passed, as part of the fiscal year 
2003 defense authorization legislation, a provision related to the 
Migratory Bird Treaty Act.\21\ Under that provision, until the 
Secretary of the Interior prescribes regulations to exempt the armed 
forces from incidental takings of migratory birds during military 
readiness activities, the protections provided for migratory birds 
under the Act do not apply to such incidental takings. In addition, 
Congress authorized DOD to enter agreements to purchase property or 
property interests for natural resource conservation purposes, such as 
creating a buffer zone near installations to prevent encroachment 
issues, such as urban growth.\22\
---------------------------------------------------------------------------
     \21\Section 315, P.L. 107-314, Dec. 2, 2002.
     \22\Section 2811, P.L. 107-314, Dec. 2, 2002 (codified at 10 
U.S.C. 2684).
---------------------------------------------------------------------------
    In February 2003, DOD submitted to Congress the Readiness and Range 
Preparedness Initiative for fiscal year 2004. In it, the department 
restates a number of legislative proposals from 2002 and includes a 
proposal concerning the Marine Mammal Protection Act. In the 2004 
initiative, the department seeks to reconcile military readiness 
activities with the Marine Mammal Protection Act by adding language to 
sections of title 16 of the U.S. Code.
    We are aware that consideration of these legislative proposals 
affecting existing environmental legislation will need to include 
potential tradeoffs among multiple policy objectives and issues on 
which we have not taken a position. At the same time, we also 
understand that DOD recently asked the services to develop procedures 
for invoking the national security exceptions under a number of 
environmental laws. Historically, DOD and the services have been 
reluctant to seek such exceptions; and we are aware of only a couple of 
instances where this has been done.
    Our two reports last year both recommended that DOD develop reports 
that accurately capture the causes of training shortfalls and 
objectively report units' ability to meet their training requirements. 
At the time we completed our reviews in 2002, DOD's draft action plans 
for addressing the eight encroachment issues had not been finalized. 
DOD officials told us that they consider the plans to be working 
documents and stressed that many concepts remain under review and may 
be dropped, altered, or deferred, while other proposals may be added. 
No details were available on overall actions planned, clear assignments 
of responsibilities, measurable goals and timeframes for accomplishing 
planned actions, or funding requirements--information that would be 
needed in a comprehensive plan. Our report on stateside encroachment 
problems also recommended that DOD develop and maintain a full and 
complete inventory of service and department-wide training 
infrastructure; consider more alternatives to live training; and ensure 
that the plan for addressing encroachment includes goals, timelines, 
responsibilities, and projected costs.\23\ Our recently issued report 
on overseas training also recommended that DOD develop reports that 
accurately capture the causes of training shortfalls and objectively 
report units' ability to meet their training requirements.\24\
---------------------------------------------------------------------------
     \23\GAO-02-614.
     \24\GAO-02-525.
---------------------------------------------------------------------------
    Following our reports, DOD issued a range sustainment directive to 
establish policy and assign responsibilities for the sustainment of 
test and training ranges,\25\ and the Special Operations Command 
developed a data base identifying the training ranges it uses, type of 
training conducted, and restrictions on training. In addition, DOD is 
working with the other regulatory agencies in the Federal Government to 
manage the way in which laws are enforced and plans to issue four more 
directives that cover outreach, range clearance, community noise, and 
Air Installation Compatibility Use Zone.
---------------------------------------------------------------------------
     \25\U.S. Department of Defense, Directive: Sustainment of Ranges 
and Operating Areas (OPAREAs), 3200.15, Jan. 10, 2003.
---------------------------------------------------------------------------
    In the Bob Stump National Defense Authorization Act for Fiscal Year 
2003, Congress required the Secretary of Defense to develop a 
comprehensive plan for using existing authorities available to the 
Secretary of Defense and the secretaries of the military departments to 
address training constraints on the use of military lands, marine 
areas, and airspace that are available in the United States and 
overseas for training.\26\ As part of the preparation of the plan, the 
Secretary of Defense was expected to conduct an assessment of current 
and future training range requirements of the armed forces and an 
evaluation of the adequacy of current DOD resources (including virtual 
and constructive training assets as well as military lands, marine 
areas, and airspace available in the United States and overseas) to 
meet those current and future training range requirements. Also, as you 
may be aware, Mr. Chairman, that Act requires annual reports to 
Congress dealing with encroachment issues beginning this year and 
requires GAO to review those reports. The first of those reports was 
required to be submitted along with the President's budget for fiscal 
year 2004. That report was to describe the progress in developing a 
comprehensive plan to address training constraints. To our knowledge, 
Mr. Chairman, DOD has not completed a comprehensive plan or provided 
Congress with the progress report. Officials of the Office of the 
Secretary of Defense said that they plan to report to Congress later 
this calendar year. The Act also requires the submission of a report 
not later than June 30, 2003, on the department's plans to improve its 
readiness reporting to reflect the readiness impact that training 
constraints have on specific units of the armed forces.
---------------------------------------------------------------------------
     \26\Section 366, P.L. 107-314, Dec. 2, 2002.
---------------------------------------------------------------------------
    This concludes my statement. I would be pleased to answer any 
questions you or other members of the committee may have at his time.
    Contact and Acknowledgment:
    For further contacts regarding this statement, please contact Barry 
W. Holman on (202) 512-8412. Individuals making key contributions to 
this statement include Tommy Baril, Byron Galloway, Jane Hunt, John 
Lee, Mark A. Little, Patti Nichol, Michelle K. Treistman, and John Van 
Schaik.
                                 ______
                                 
 Responses of Barry Holman to Additional Questions from Senator Inhofe
    Question 1. For the record and the audience, would you mind going 
into your qualifications regarding defense policy and environmental 
policy?
    Response. GAO products involving work such as our assessment of 
training range and encroachment issues are not the product of one 
person but represent a team effort of multi-disciplined and multi-
experienced individuals producing an institutional product. In this 
recent effort, GAO brought to bear the work of persons experienced in 
Defense readiness, training, infrastructure, natural resource and 
encroachment issues, and legal counsel. As a senior manager, it is my 
responsibility to ensure that we have the right team in place with the 
requisite knowledge, skills, and abilities. I believe we did that with 
regard to this body of work.

    Question 2. Is there indeed a problem here with regard to 
encroachment?
    Response. Encroachment is a problem but the magnitude of that 
problem is not clear. GAO's June 2002 report on encroachment (U.S. 
General Accounting Office, Military Training: DOD Lacks a Comprehensive 
Plan to Manage Encroachment on Training Ranges, GAO-02-614 [Washington, 
DC.: June 11, 2002]) concluded that ``DOD and the military services 
have lost training range capabilities and can be expected to experience 
increased losses in the future absent efforts to mitigate 
encroachment.'' It also concluded that ``[t]he fact that DOD and 
service officials in congressional testimoneys and other forums cite 
the adverse effects of encroachment on training, while commanders are 
not reporting any adverse effects [in readiness reports], suggests that 
additional steps are needed to improve the reporting process.''
    My April 2, 2003, testimony before the Senate Committee on 
Environment and Public Works noted that ``Although the effects vary by 
service and by individual installation, encroachment has generally 
limited the extent to which training ranges are available or the types 
of training that can be conducted. This limits units' ability to train 
as they would expect to fight and causes workarounds that may limit the 
amount or quality of training.''

    Question 3. You testified last year on this topic before the House 
of Representatives and have been an observer of what's happening. In 
the past year, do you believe that litigation and workarounds have 
trended better or worse for the military?
    Response. GAO has not done a comprehensive analysis of relevant 
litigation that would enable us to state whether there have been 
specific trends and what the impact may be for the military, although 
recent lawsuits could potentially influence how the current critical 
habitat provisions impact all Federal agencies, including the military. 
For example, the U.S. Fish and Wildlife Service (FWS) had been 
following a general practice of not designating critical habitat, based 
on its determination that such designation conveys little additional 
protection to species. However, some lawsuits have successfully 
challenged FWS' failure to designate critical habitat for certain 
species. As a result, FWS is designating more critical habitat than it 
has in the past, and these designations may include military land that 
would have otherwise not been affected by existing critical habitat 
provisions.
    In addition, a recent Federal district court decision has the 
potential to result in another change in how FWS is implementing 
critical habitat provisions, specifically regarding its exclusion of 
lands from a designation if special management provisions are already 
in effect. (Center For Biological Diversity v. Norton, No. CV 01-409 
TUC DCB [D. Ariz. January 13, 2003].) In this case, the court ruled 
that the U.S. Forest Service's land and resource management plans, 
prepared under a law governing forest management, did not eliminate the 
need to designate land as critical habitat under the Endangered Species 
Act. If, under current law, FWS excludes military lands from a critical 
habitat designation on the basis that the lands are covered by an 
Integrated Natural Resources Management Plan, courts might apply the 
same rationale and preclude this approach.

    Question 4. The GAO report you authored has been characterized in 
the press and elsewhere as being quite adverse to the military's 
perspective on military encroachment. Would you please set the record 
straight about these characterizations of your work?
    Response. We are aware of numerous instances where others have 
referenced GAO's June 2002 report to suggest GAO was saying that DOD's 
training and readiness had not been adversely affected by encroachment 
issues. However, GAO's reports and testimoneys on this subject have 
clearly noted the services' loss of some training range capabilities 
due to encroachment while also noting that the services' readiness data 
largely did not show the extent to which encroachment has adversely 
affected training or readiness. As noted in our April 2 testimony, 
``This is not surprising to us because we have long reported on 
limitations in DOD's readiness reporting system and the need for 
improvements. . . . Furthermore, on the basis of our prior reports on 
readiness issues and our examination of encroachment, we do not believe 
the absence of data in these reports concerning encroachment should be 
viewed simply as 'no data, no problem!' Rather, as with other readiness 
issues we have examined over time, it suggests a lack of attention on 
the part of DOD in fully assessing and reporting on the magnitude of 
the encroachment problem.''

    Question 5. Where do you see the future of the military's training 
without some stabilization of the laws in this area?
    Response. As noted in our response to question 2 above, our June 
2002 report concluded that ``DOD and the military services have lost 
training range capabilities and can be expected to experience increased 
losses in the future absent efforts to mitigate encroachment.'' That 
report noted the need for a comprehensive plan to manage encroachment 
on training ranges. Our April 2 testimony noted that while DOD has made 
some progress in addressing individual encroachment issues, that effort 
is still evolving and more work will be required to put in place a 
comprehensive plan that clearly identifies steps to be taken, goals and 
milestones to track progress, and required funding. We noted that in 
the Bob Stump National Defense Authorization Act for Fiscal Year 2003, 
Congress required the Secretary of Defense to develop a comprehensive 
plan for using existing authorities available to the Secretary of 
Defense and the secretaries of the military departments to address 
training constraints on the use of military lands, marine areas, and 
airspace that are available in the United States and overseas for 
training. As part of the preparation of the plan, the Secretary of 
Defense was expected to conduct an assessment of current and future 
training range requirements of the armed forces and an evaluation of 
the adequacy of current DOD resources to meet those current and future 
training range requirements. That act requires annual reports to 
Congress dealing with encroachment issues beginning this year and 
requires GAO to review those reports. The first of those reports was 
required to be submitted along with the President's budget for fiscal 
year 2004. That report was to describe the progress in developing a 
comprehensive plan to address training constraints. DOD has not yet 
submitted its initial report.
    In DOD's August 2001 Endangered Species Act Sustainable Ranges 
Action Plan, DOD identified a combination of legislative and 
administrative actions to deal with encroachment issues. However, our 
work to date, and limitations in DOD's own assessments, provides us 
with insufficient basis to comment on the extent to which legislation 
may be required to deal with the issue.

    Question 6. If we can achieve better results for the species by 
means other than critical habitat designation, doesn't it just make 
common sense to achieve these common goals by less restrictive means?
    Response. If we can achieve better results for threatened and 
endangered species by means that are less restrictive than critical 
habitat designation, it makes sense to use the alternative means. The 
proposed legislation would preclude the FWS from designating critical 
habitat on a military installation if the installation has a completed 
Integrated Natural Resources Management Plan, pursuant to the Sikes Act 
Improvement Act, that addresses threatened or endangered species and 
their habitat. While this proposed change may be less restrictive than 
designation of critical habitat, the proposal will not necessarily 
achieve better results for species. In fact, depending on how it is 
implemented and enforced, the proposed legislation could result in 
reduced flexibility for FWS and the National Marine Fisheries Service 
in carrying out their responsibilities under the Endangered Species Act 
to protect the habitat of threatened and endangered species. The 
proposal could also represent a fundamental shift in emphasis from the 
strong role that all Federal agencies, including DOD, are expected to 
play in protecting threatened and endangered species under the 
Endangered Species Act. Currently, the Endangered Species Act requires 
that all Federal agencies protect threatened and endangered species and 
their habitats, while the Sikes Act, as amended, provides that there be 
no net loss in the capability of the installation to support its 
military mission when preparing resource management plans for military 
lands.

    Question 7. Can some legislation in these areas make a difference 
for the military and aid in training?
    Response. It is likely that some of these changes would make a 
difference for the military and aid in training. As we concluded in our 
June 2002 report, DOD can be expected to experience increased losses of 
training range capabilities in the future, absent efforts to mitigate 
encroachment. However, we cannot determine the extent of the proposed 
legislation's affect because the military services do not have data to 
show the extent to which critical habitat for threatened and endangered 
species and other encroachment issues have adversely affected training.
                               __________
   Statement of Daniel S. Miller, First Assistant Attorney General, 
   Colorado Department of Law, on Behalf of the Attorneys General of 
Arizona, California, Colorado, Delaware, Hawaii, Idaho, Massachusetts, 
New Hampshire, New Mexico, Northern Mariana Islands, New York, Oregon, 
                   South Dakota, Utah, and Washington
Introduction
    This statement is submitted on behalf of the Attorneys General of 
Arizona, California Colorado, Delaware, Hawaii, Idaho, Massachusetts, 
New Hampshire, New Mexico, New York, Northern Mariana Islands, Oregon, 
South Dakota, Utah and Washington. Our statement addresses the 
Department of Defense's recent proposed legislation to amend the Clean 
Air Act, the Resource Conservation and Recovery Act (RCRA) and the 
Comprehensive Environmental, Response, Compensation and Liability Act 
(CERCLA). The states are the primary implementers of the Clean Air Act 
and RCRA, and are major partners with EPA under CERCLA. As the chief 
law enforcement officers of our respective states, it is our duty to 
ensure compliance with our environmental laws.
    First, let us reiterate that we absolutely support the need to 
maintain military readiness, and to provide our armed forces with 
appropriate realistic training to minimize battlefield casualties and 
increase their combat effectiveness. There is no question of the 
importance of readiness. Historically, however, military training 
activities have caused adverse impacts on human health and the 
environment, and resulted in expensive cleanups. For example, there are 
129 DOD facilities on the Superfund National Priorities List. The 
question is whether the existing environmental laws allow the military 
to conduct these activities in a manner that maintains readiness while 
ensuring protection of human health and the environment. With respect 
to RCRA, CERCLA and the Clean Air Act, we believe that they do. In our 
view, furthering military readiness and ensuring environmental 
protection are compatible goals, not mutually exclusive.
    We are not aware of any instance in which RCRA, CERCLA or the Clean 
Air Act has ever caused an adverse impact on military readiness. To our 
knowledge, DOD has not cited any examples of any such conflicts. And we 
note that Christine Whitman, the Administrator of the Environmental 
Protection Agency, recently testified before the Senate Environment and 
Public Works Committee that she was not aware of any training mission 
anywhere in the country that was being held up or not taking place 
because of these laws.\1\ We believe that the likelihood of a future 
conflict between these laws and military readiness is remote. In the 
unlikely event of such a conflict, these laws already provide the 
flexibility necessary to harmonize the competing concerns of military 
readiness and protection of human health and the environment.
---------------------------------------------------------------------------
     \1\As reflected in the record of the Senate Environment and Public 
Works Hearing of February 26, 2003 on the President's 2004 Budget for 
the Environmental Protection Agency.
---------------------------------------------------------------------------
    RCRA, CERCLA, and the Clean Air Act provide vital safeguards to 
protect the health of our citizens and their environment. As a general 
matter, we think that these safeguards should be maintained, not 
weakened. Certainly, any amendments that would weaken the protections 
these laws provide must be justified by important countervailing 
considerations that are supported by facts. While we certainly agree 
that maintaining readiness is necessary, the lack of any demonstrated 
conflict with RCRA, CERCLA and Clean Air Act requirements and the 
inherent flexibility of these laws cause us to conclude that these 
amendments are unnecessary.
    We are concerned that DOD's proposed amendments to RCRA, CERCLA, 
and the Clean Air Act would undermine state authority and create 
significant adverse environmental impacts, with no benefit to military 
readiness. These amendments are far-reaching. The amendments to the 
Clean Air Act would allow continued violations of health-based air 
quality standards in cases where there was no impact on readiness. We 
disagree with DOD's statements that the amendments to RCRA and CERCLA 
only apply to ``operational'' ranges. As described more specifically 
later in this statement, DOD's proposed amendments to RCRA and CERCLA 
would likely have the following results:
      Section 2019 will likely be interpreted to preempt or 
impair state authority over munitions, explosives and the like not only 
at operational ranges, but--contrary to DOD's assertions--also at 
former military ranges now in private ownership, DOD sites other than 
ranges, Department of Energy facilities, and even at private defense 
contractor sites.
      Section 2019 may preempt or impair EPA and state 
authority under RCRA and analogous state laws to require cleanup not 
only of unexploded ordnance, but also the chemical constituents of the 
ordnance such as perchlorate, TNT, or RDX--that may have leached out 
and contaminated the soil and groundwater. Again, this is not limited 
to operational ranges, but would likely extend to other Federal 
facilities, former military ranges now in private ownership, and 
defense contractor sites.
      Subsection 2019(a) would likely preempt states and EPA 
from using RCRA authorities to regulate the cleanup of unexploded 
ordnance and other munitions-related contamination at 16 million acres 
of land on closed, transferred, and transferring ranges that DOD 
estimates are potentially contaminated with unexploded ordnance. Much 
of this land is in private ownership.
      Proposed paragraph 2019(a)(2) appears to provide a 
wholesale exemption for munitions and explosives-related contamination 
that also likely extends beyond ranges to other Federal facilities and 
even to defense contractor sites. This exemption may encompass waste 
streams from the manufacture of explosives and munitions constituents, 
such as perchlorate contamination.
      Paragraph 2019(b)(2) arguably precludes state superfund 
authority over munitions-related contamination on operational ranges.
      Paragraph 2019(b)(2) also likely precludes prevents 
states from requiring cleanup of munitions-related contamination on 16 
million acres of closed, transferred, and transferring ranges under 
state superfund-type laws.

    Finally, we are concerned with the legislative process by which 
these proposed amendments have been considered. As we understand it, 
DOD has requested that the proposed amendments be included as part of 
the Defense Authorization Bill. These amendments affect the Federal 
Government's obligations to comply with state and Federal environmental 
laws. This is an important matter of public policy, with significant 
implications for environmental protection. It deserves full hearings 
before the committees of jurisdiction, and the careful deliberation 
that regular order provides. Because Federal courts closely scrutinize 
waivers of sovereign immunity, and these proposed amendments would 
affect the waivers of immunity in RCRA and CERCLA, the need for careful 
deliberation of the proposed legislative language is even greater.
    These amendments should be subjected to regular order with hearings 
before the congressional committees with jurisdiction over the 
environmental laws, not proposed as amendments to authorization or 
appropriations bills. Last summer, the National Association of 
Attorneys General approved a resolution urging the Congress to only 
consider laws that might impair state authority over Federal facilities 
through regular order.\2\
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     \2\See Exhibit 1.
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The Clean Air Act, RCRA and CERCLA have not adversely impacted military 
        readiness
    As far as we are aware, DOD has not identified any cases in which 
RCRA or CERCLA have adversely impacted military readiness. Nor are we 
aware of any such instances. Even DOD's own background materials 
supporting the ``Readiness and Range Preservation Initiative'' for 2002 
downplay the need for amending RCRA and CERCLA, characterizing the 
impact on readiness as merely ``potentially significant''.\3\ DOD's 
justification for its proposed amendments to RCRA and CERCLA is a 
citizen suit filed in Alaska. According to DOD, this suit alleges that 
the discharge of ordnance onto an operational military range 
constitutes ``disposal'' under RCRA and a ``release'' under 
CERCLA.\4\DOD concludes that if munitions used for their intended 
purpose are considered to be statutory solid waste, the Army could be 
forced to perform corrective action or remediation of Eagle River 
Flats, and live-fire training during the remediation would be 
impossible.
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     \3\``Readiness and Range Preservation Initiative Summary,'' dated 
April 18, 2002, p. 7 (attached as Exhibit 2).
     \4\Id.
---------------------------------------------------------------------------
    We disagree with DOD's conclusion. First, there are no RCRA 
imminent and substantial endangerment or illegal disposal allegations 
in the Ft. Richardson citizen suit. Plaintiffs in that suit did allege 
violation of an Alaska statutory provision that prohibits pollution.\5\ 
The cited provision is not part of Alaska's hazardous waste regulatory 
program; indeed, Alaska does not have a state hazardous waste program, 
much less an authorized program under RCRA. Plaintiffs in this case 
have never even alleged that used or fired munitions are a RCRA 
statutory solid waste. Thus, if this case were decided adversely to the 
Army, it would not set any precedent regarding RCRA.
---------------------------------------------------------------------------
     \5\Plaintiff's Amended Complaint for Declaratory and Injunctive 
Relief, para. 29, Alaska Community Action on Toxics, et al. v. United 
States, A02-0083 CV, filed June 26, 2002 (attached as Exhibit 3). 
Plaintiffs' complaint never cites RCRA's imminent and substantial 
endangerment provision; instead, it cites 42 U.S.C. Sec. 6972(a)(1)(A), 
the RCRA citizen suit provisions authorizing suit against any person 
``alleged to be in violation of any permit, standard, regulation, 
condition, requirement, prohibition, or order which has become 
effective pursuant to this chapter'' as a jurisdictional basis for the 
suit. See para. 3 of Exhibit 3. In paragraph 29, plaintiffs allege that 
the Army's violation of Alaska Statutes Sec. 46.03.710 constitutes a 
violation of RCRA's waiver of immunity provision, 42 U.S.C. 
Sec. 6961(a). Alaska Statutes Sec. 46.03.710 states: ``A person may not 
pollute or add to the pollution of the air, land, subsurface land, or 
water of the state.''
---------------------------------------------------------------------------
    Even if DOD's characterization of the plaintiff's complaint were 
correct, the likelihood that cleanup requirements would preclude 
training is remote. First, remediation would only be required if the 
munitions or munitions constituents posed a risk to human health or the 
environment. Generally speaking, this would only occur in situations 
where munitions constituents were contaminating environmental media, 
such as ground or surface water. Assuming that some remediation were 
required, there is no evidence to suggest that remediation of 
environmental contamination would impact military readiness. Remedial 
approaches to contaminated sites are quite varied, and inevitably site-
specific. Without knowing the specific details of what the problem is, 
and what the remedial alternatives are, there is simply no basis for 
assessing the impacts, if any, of cleanup on training.
    The underlying premise of DOD's position seems to be that if used 
or fired military munitions are considered statutory solid wastes under 
RCRA, or hazardous substances under CERCLA, the inevitable consequence 
will be that states will impose remedial requirements that will 
conflict with military readiness. DOD has cited no evidence to support 
this premise. States have regulated cleanup of contaminated Department 
of Energy nuclear weapons facilities and Department of Defense sites 
for decades in a responsible manner. We believe that state and EPA 
regulators have demonstrated their consistent willingness to resolve 
differences with regulated Federal officials, and to develop creative 
approaches that balance defense concerns with environmental protection. 
But if there were a case where state or EPA regulators believed that 
environmental contamination at an operation range required remediation 
to protect human health and the environment, and adverse impacts on 
readiness could not be avoided, RCRA and CERCLA already allow DOD to 
seek an exemption from such requirements on the basis of national 
security.
    Similarly, DOD has not identified any instances in which the Clean 
Air Act's conformity requirements have actually prevented the military 
from conducting the activities it believes are necessary to maintain 
readiness. Instead, it describes some ``near misses,'' and urges that 
the proposed exemption is necessary to facilitate the next round of 
base closures in 2005.\6\ These ``near misses'' are cases where, in 
fact, potentially conflicting environmental requirements and readiness 
concerns were successfully resolved through the regulatory process. 
DOD's proposed amendments to the Clean Air Act would allow continued 
violations of the health-based National Ambient Air Quality Standards 
without any demonstration that DOD could not make the necessary 
emissions offsets.
---------------------------------------------------------------------------
     \6\Exhibit 2, p. 6.
---------------------------------------------------------------------------
The environmental laws provide ample flexibility to accommodate any 
        conflicts between military readiness and environmental 
        protection
    It is unlikely the Clean Air Act, RCRA, or CERCLA requirements will 
cause conflicts with military readiness. Based on experience to date, 
any such conflicts would be rare occurrences. Consequently, the case-
by-case exemption provisions that already exist in each of these laws 
(described below) are vastly preferable to DOD's proposed across-the-
board statutory exemption from environmental requirements. The case-by-
case approach accommodates readiness concerns where necessary, and 
minimizes adverse environmental consequences in the vast majority of 
cases where there are no conflicts. Conversely, DOD's approach weakens 
environmental protections unnecessarily in the vast majority of cases 
where there is no adverse impact on readiness.
    The Clean Air Act, RCRA and CERCLA already allow the President to 
exempt the Department of Defense from their statutory and regulatory 
requirements on a case-by-case basis.\7\ These are not burdensome 
requirements. All that is required is a finding that doing so is 
necessary for national security or is in the paramount interests of the 
United States, depending on the particular statute at issue. For 
example, President Bush recently made such a finding under RCRA 
exempting the Air Force facility ``near Groom Lake, Nevada, from any 
Federal, State, interstate or local provision respecting the control 
and abatement of solid waste or hazardous waste disposal that would 
require the disclosure of classified information concerning the 
operating location to any authorized person.''\8\ The entire finding 
consists of three paragraphs. President Clinton made similar findings 
annually from 1996 through 2000 regarding this same matter. We 
understand that to date, the exemption provisions of the Clean Air Act, 
RCRA and CERCLA have never been invoked because of military readiness 
concerns.
---------------------------------------------------------------------------
     \7\42 U.S.C. Sec. Sec. 6961(a), 7418(b), and 9620(j). The RCRA 
exemption, Sec. 6961(a), provides:
        ``The President may exempt any solid waste management facility 
of any department, agency, or instrumentality in the executive branch 
from compliance with such a requirement if he determines it to be in 
the paramount interest of the United States to do so. No such exemption 
shall be granted due to lack of appropriation unless the President 
shall have specifically requested such appropriation as a part of the 
budgetary process and the Congress shall have failed to make available 
such requested appropriation. Any exemption shall be for a period not 
in excess of 1 year, but additional exemptions may be granted for 
periods not to exceed 1 year upon the President's making a new 
determination. The President shall report each January to the Congress 
all exemptions from the requirements of this section granted during the 
preceding calendar year, together with his reason for granting each 
such exemption.''
     \8\67 Fed. Reg. 78425 (Dec. 24, 2002), attached as Exhibit 4.
---------------------------------------------------------------------------
    In addition to providing a case-by-case exemption, section 118(b) 
of the Clean Air Act authorizes the President to ``issue regulations 
exempting from compliance with the requirements of this section any 
weaponry, equipment, aircraft, vehicles, or other classes or categories 
of property which are owned or operated by the Armed Forces of the 
United States (including the Coast Guard) or by the National Guard of 
any State and which are uniquely military in nature.''\9\ This 
provision allows even greater flexibility than the case-by-case 
exemptions in managing any potential conflicts between Clean Air Act 
requirements and readiness concerns. The Clean Air Act's ``general 
conformity'' regulations that DOD's amendments would override contain 
still more flexibility. These regulations allow DOD to set aside clean 
air requirements for up to 6 months in response to ``emergencies,'' 
which, by definition, include responses to terrorist activities and 
military mobilizations. This exemption is renewable every 6 months 
through a written determination by DOD.\10\
---------------------------------------------------------------------------
     \9\42 U.S.C. Sec. 7418(b).
     \10\40 C.F.R. 93.153(d)(2), 93.153(e); 40 C.F.R. 152.
---------------------------------------------------------------------------
    Other provisions of the environmental laws provide further 
flexibility to balance environmental protection with other Federal 
priorities. For example, in 1992, Congress provided EPA authority to 
issue administrative orders under RCRA to other Federal agencies, but 
required that such agencies have the opportunity to confer with the EPA 
Administrator before any such order becomes final.\11\ Additionally, 
Congress has created a procedure that allows the Secretary of Defense 
to temporarily suspend any pending administrative action by another 
Federal agency that the Secretary determines ``affects training or any 
other readiness activity in a manner that has or would have a 
significant adverse effect on the military readiness of any of the 
armed forces or a critical component thereof.''\12\ During the 
suspension, the Secretary and the head of the other Federal agency must 
consult and attempt to mitigate or eliminate the adverse impact of the 
proposed action on readiness, consistent with the purpose of the 
proposed action.\13\ If they are unable to reach agreement, the 
Secretary of Defense must notify the President, who shall resolve the 
matter.\14\
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     \11\42 U.S.C. Sec. 6961(b)(2).
     \12\10 U.S.C. Sec. 2014(a) and (d).
     \13\10 U.S.C. Sec. 2014(c).
     \14\10 U.S.C. Sec. 2014(e).
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DOD's compliance record warrants a regulatory structure that ensures 
        accountability
    A case-by-case approach to resolving any future potential conflicts 
between readiness and the requirements of RCRA, CERCLA and the Clean 
Air Act is preferable to sweeping statutory exemptions because the 
case-by-case approach provides accountability. Experience since the 
1992 Supreme Court decision in U.S. Department of Energy v. Ohio\15\ 
demonstrates that Federal agencies in general, and DOD in particular, 
are far more likely to comply with environmental requirements when they 
can be held accountable. In that case, the Supreme Court held that 
Federal agencies were not subject to penalties for violating state 
hazardous waste and water quality laws. In response, Congress swiftly 
amended RCRA to make Federal agencies subject to penalties for 
violating hazardous waste laws. Once Congress clarified the states' 
authority to hold Federal agencies accountable for violating hazardous 
waste requirements, DOD and other Federal agencies began steadily 
improving their RCRA compliance rates, bringing the percentage of 
facilities in compliance from a low of 55.4 percent in fiscal year 1993 
to 93.6 percent in fiscal year 2000.\16\
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     \15\503 U.S. 607 (1992).
     \16\``The State of Federal Facilities--An Overview of 
Environmental Compliance at Federal Facilities fiscal year 1999-2000'' 
USEPA Office of Enforcement and Compliance Assurance, EPA 300-R-01-004, 
September 2001, p. 22.
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    This salutary trend stands in stark contrast to Federal agency 
performance under the Clean Water Act. Unlike RCRA, Congress did not 
amend the Clean Water Act following the Ohio decision to subject 
Federal agencies to penalties for violating Clean Water Act 
requirements. Since the Supreme Court decision removed the threat that 
states could hold Federal agencies accountable for violating Clean 
Water Act requirements by assessing penalties, the percentage of 
Federal facilities in compliance with the Clean Water Act has fallen 
steadily from a high of 94.2 percent in fiscal year 1993 to a low of 
61.5 percent in fiscal year 1998.\17\ DOD's Clean Water Act compliance 
rates are slightly worse than the Federal agency totals.\18\
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     \17\While Federal facilities' Clean Water Act compliance rates as 
a whole rebounded somewhat in fiscal year 1999 and 2000, the overall 
trend is still downward.
     \18\Id. DOD's Clean Water Act compliance rates for fiscal year 
1996-2000 were slightly lower than Federal agencies as a whole. Id. at 
p. 24; ``The State of Federal Facilities--An Overview of Environmental 
Compliance at Federal Facilities, fiscal year 1997-98,'' USEPA Office 
of Enforcement and Compliance Assurance, EPA 300-R-00-002, January 
2000, p. 26; ``The State of Federal Facilities--An Overview of 
Environmental Compliance at Federal Facilities, fiscal year 1995-96'' 
USEPA Office of Enforcement and Compliance Assurance, EPA 300-R-98-
002a, June 1998, pp. ES-11 and ES-12. While the DOD rates also improved 
in fiscal year 1999 from fiscal year 1998's nadir, they declined again 
in fiscal year 2000.
---------------------------------------------------------------------------
    Compliance statistics alone, telling as they are, do not paint the 
entire picture of Federal agencies' failure to comply with 
environmental requirements. Federal agencies in general, and DOD in 
particular, have long had a history of resistance to environmental 
regulation. The history of the Clean Air Act provides a good example. 
Before 1970, the Clean Air Act encouraged, but did not require, Federal 
agencies to comply with its mandates. Congress determined that this 
voluntary system was not working, and in 1970 amended the act to 
require Federal agencies to comply. Specifically, Congress added 
section 118 to the Clean Air Act. The first sentence of the section 
provides, in relevant part:

    Each department, agency, and instrumentality of . . . the Federal 
    Government . . . shall comply with Federal, State, interstate, and 
    local requirements respecting control and abatement of air 
    pollution to the same extent that any person is subject to such 
    requirements. 42 U.S.C. Sec. 1857f.

    The 1970 amendments also required the Environmental Protection 
Agency to establish ambient air quality standards. Each state had to 
submit plans describing how the state would meet these standards. 
Kentucky, like most states, submitted a plan that relied on permits as 
the sole mechanism to establish emissions limitations for air pollution 
sources, and to establish schedules for achieving compliance with the 
emissions limitations. Kentucky sought to require several Federal 
facilities (including the Army's Fort Knox, Fort Campbell and others) 
to obtain permits. The Federal agencies refused, arguing that section 
118 of the Clean Air Act did not obligate them to comply with 
``procedural'' requirements, such as the need to obtain state permits. 
Without the permit, there was no way for Kentucky to control air 
pollution from these Federal facilities.
    The matter went to court, and ultimately, in Hancock v. Train,\19\ 
the Supreme Court agreed with the Federal agencies. Shortly thereafter, 
Congress amended the Clean Air Act to require Federal agencies to 
comply with procedural requirements, including permit requirements.\20\ 
While the challenge to state authority under the Clean Air Act was 
pending, Federal agencies were also challenging the requirement to 
obtain state permits under the Clean Water Act's National Pollution 
Discharge Elimination System program. Interpreting a similar waiver of 
immunity, the Supreme Court again sided with the Federal agencies.\21\ 
Again, Congress acted swiftly to amend the Clean Water Act to require 
Federal agencies to obtain discharge permits.\22\ More recently, DOD 
spent years challenging state authority over cleanup of contamination 
at Federal facilities, ultimately losing in the Tenth Circuit.\23\
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     \19\426 U.S. 167 (1976).
     \20\Pub.L. 95-95, Sec. 116(a).
     \21\Environmental Protection Agency v. California, 426 U.S. 200 
(1976).
     \22\Pub.L. 95-217, Sec. Sec. 60, 61(a).
     \23\U.S. v. Colorado, 990 F.2d 1565 (10th Cir. 1993).
---------------------------------------------------------------------------
    Nonetheless, DOD continues to challenge state authority over 
cleanup of contamination at its sites, and in particular to resist 
state authority over cleanup of munitions-related contamination. In 
addition, DOD is challenging a number of other environmental 
requirements:
      DOD is refusing to pay penalties for violations of state 
requirements related to underground petroleum storage tanks.\24\
---------------------------------------------------------------------------
     \24\See exchange of letters between State of Hawaii Department of 
Health and U.S. Army Garrison Hawaii, attached hereto as Exhibit 5.
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      DOD is appealing a determination by an EPA Administrative 
Law Judge that the Clean Air Act's command that penalties for 
violations of the Act be calculated by considering, inter alia, the 
economic benefit of the violator's non-compliance applies to Federal 
agencies.\25\
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     \25\In the Matter of U.S. Army, Fort Wainwright Central Heating & 
Power Plant, Docket No. CAA-10-99-0121. Administrative Law Judge Susan 
L. Biro entered the order against the Air Force on April 30, 2002. 
Section 113 of the Clean Air Act, 42 U.S.C. Sec. 7413, provides, in 
relevant part, that the Administrator may ``issue an administrative 
order against any person assessing a civil administrative penalty of up 
to $25,000, per day,'' and that in calculating the penalty, the 
Administrator ``shall take into consideration . . . the economic 
benefit of noncompliance.'' 42 U.S.C. Sec. 7413(d) and (e). Section 302 
of the Clean Air Act, 42 U.S.C. Sec. 7602, defines ``person'' to 
include ``any agency, department, or instrumentality of the United 
States.'' Finally, the waiver of Federal sovereign immunity in section 
118 of the Clean Air Act, 42 U.S.C. Sec. 7418 states that Federal 
agencies ``shall be subject to . . . all Federal . . . process and 
sanctions . . . in the same manner , and to the same extent as any 
nongovernmental entity.''
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      DOD is also challenging state and EPA authority to 
require compliance with ``institutional controls.'' ``Institutional 
controls'' are legal mechanisms to restrict land or water use, and are 
often employed to reduce the cost of cleaning up contaminated sites. 
DOD argues, inter alia, that state institutional controls do not fall 
within the scope of RCRA's waiver of Federal sovereign immunity for 
state requirements respecting the control and abatement of solid waste.
The huge extent of DOD's environmental contamination also demands a 
        regulatory structure that ensures accountability
    Accountability is also important because of the environmental 
impact of military activities. DOD is responsible for far more 
contaminated sites than any other Federal agency. There are 165 Federal 
facilities currently listed on the Superfund National Priorities List; 
129 of these are DOD facilities.\26\ All together, DOD is responsible 
for addressing over 28,500 potentially contaminated sites across the 
country.\27\ Through fiscal year 2001, DOD had spent almost $25 billion 
cleaning up sites for which it is responsible.\28\ DOD recently 
estimated that it would take another $14 billion to complete the 
remediation of environmental contamination at active, realigning and 
closing sites.\29\
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     \26\Information from EPA's Superfund website at http://
www.epa.gov/superfund/sites/query/queryhtm/nplfin1.htm and from 
telephone conversation with EPA's Federal Facilities Restoration and 
Reuse Office.
     \27\See ``Fiscal Year 2001 Defense Environmental Restoration 
Program Annual Report to Congress,'' p. 19. This document is available 
at the following DOD website: http://www.dtic.mil/envirodod/DERP/
DERP.htm
     \28\Id., p. 21.
     \29\Id., pp. 27-28, attached as Exhibit 6. The $14 billion figure 
combines the total cost-to-complete sums given for active installations 
in Figure 8 and Base Realignment and Closure Sites in Figure 10 of 
Exhibit 6.
---------------------------------------------------------------------------
    But the need for cleanup of active and closing bases is only part 
of the picture. DOD is also responsible for assessing and cleaning up 
thousands of potentially contaminated ``Formerly Used Defense Sites'' 
(``FUDS'') in the United States and its territories and 
possessions.\30\ Many FUDS are former bombing or gunnery ranges that 
contain unexploded ordnance. The GAO estimated recently that unexploded 
ordnance contamination may exist at over 1,600 FUDS.\31\ DOD estimates 
that approximately 16 million acres of land on transferred ranges are 
potentially contaminated with unexploded ordnance.\32\ There are no 
reliable data on the cost of addressing the contamination at these 
former ranges and other FUDS. DOD's recent estimates for unexploded 
ordnance cleanup vary from $14 billion to over $100 billion.\33\ 
Despite this lack of data, we do know that the costs of detecting and 
remediating unexploded ordnance contamination are extremely high. For 
example, through fiscal year 2001, DOD had spent over $37 million 
investigating and remediating the former Lowry Bombing and Gunnery 
Range (a/k/a Buckley Field) near Aurora, Colorado, and expected to 
spend an additional $71 million to complete cleanup of this site.\34\ 
At the Spring Valley site in the District of Columbia, DOD had spent 
over $24 million through fiscal year 2001, and expected to spend an 
additional $73 million.\35\ The costs for cleaning up sites like the 
Lowry Range and Spring Valley may be dwarfed by the sheer magnitude of 
the remaining FUDS sites, such as the 288 FUDS projects in California 
that DOD estimates may cost $2.6 billion to address.\36\
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     \30\``Environmental Contamination: Cleanup Actions at Formerly 
Used Defense Sites,'' GAO-01-557 (July 2001), p. 1. FUDS are properties 
that were formerly owned, leased, possessed, or operated by DOD or its 
components.
     \31\Id. at 2.
     \32\``DOD Training Range Cleanup Cost Estimates Are Likely 
Understated,'' GAO-01-479 (April 2001), p. 11.
     \33\Id., pp. 5 and 13.
     \34\``Fiscal Year 2001 Defense Environmental Restoration Program 
Annual Report to Congress,'' Table C-1, showing status of military 
installations and FUDS with estimated cleanup completion cost estimates 
exceeding $5 million at p. C-1-22.
     \35\Id. at p. C-1-25.
     \36\Id., pp. C-1-8 to C-1-21.
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    The bottom line is that unexploded ordnance contamination at FUDS 
represents an environmental problem of huge dimensions. As shown below, 
DOD's proposed amendments would likely be read to preempt state 
authority over cleanup of these sites. Independent state oversight is 
needed to ensure these sites are cleaned up in a manner that protects 
human health and the environment.\37\
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     \37\For example, many states have found that DOD's determinations 
that specific FUDS do not require any cleanup action are frequently 
mistaken. In 1998, the Association of State and Territorial Solid Waste 
Management Officials (ASTSWMO) conducted a survey of its members 
regarding ``no further action'' determinations made by the Army Corps 
of Engineers. Nearly half of the responding states (19 out of 39) said 
that they had reason to believe that the Corps had not made sound 
environmental decisions in making some ``no further action'' 
determinations. Six states had conducted their own environmental or 
health assessments at 66 of the sites the Corps had designated ``no 
further action.'' These states determined that 32 of the 66 did require 
cleanup. Contamination at the 32 sites included high levels of PCBs, 
unexploded ordnance, leaking underground storage tanks, asbestos, and 
groundwater contamination. ``No Further Action Survey,'' Association of 
State and Territorial Solid Waste Management Officials, December 1998. 
Several of the states that responded they did not have any reason to 
doubt the Corps' determinations commented that they had not assessed 
the sites themselves. The complete survey is available on ASTSWMO's 
website at http://www.astswmo.org/Publications/bookshelf.htm by 
clicking on ``Federal Facilities'' and then on ``No Further Action 
Review Efforts at Formerly Used Defense Sites (NOFA FUDS) December, 
1998.''
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    In addition to the obvious explosive hazards of unexploded 
ordnance, some constituents of explosives and munitions contamination 
have toxic or potential carcinogenic effects,\38\ and can cause 
groundwater contamination. For example, perchlorate is a chemical 
widely used in solid rocket fuel and munitions. It interferes with 
iodide uptake into the thyroid gland, and disrupts the thyroid 
function. The Wall Street Journal has reported that EPA is concerned 
that fetuses and newborn babies may be particularly sensitive to 
exposure to perchlorate.\39\ Live-fire training at the Massachusetts 
Military Reservation (MMR) over several decades has contaminated large 
amounts of groundwater in the sole source drinking water aquifer for 
the Cape Cod area. Recently, the Town of Bourne closed half of its 
drinking water supply wells due to contamination by perchlorate that 
migrated from MMR. Subsequently, DOD spent approximately $2 million to 
hook the town up to an alternate water supply.\40\ Reportedly, 
explosives contaminants have been detected in about 100 groundwater 
monitoring wells on MMR, and have exceed EPA health advisory limits at 
53 of those wells.\41\ Similarly, military training activities at the 
Aberdeen Proving Ground have contaminated groundwater there with 
perchlorate, again prompting closure of a municipal water supply well 
that had been contaminated.\42\
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     \38\Fact sheets or public health statements, all published by the 
Agency for Toxic Substances and Disease Registry, for four common 
explosives or munitions constituents (DNT, RDX, TNT and white 
phosphorous), are attached as Exhibit 7. Also included in Exhibit 7 are 
two EPA documents regarding perchlorate, another common munitions 
constituent.
     \39\``A Fuel of cold war Defenses Now Ignites Health 
Controversy,'' 12/16/2002 article by Peter Waldman, reported on page 1 
of the Wall Street Journal, attached as Exhibit 8.
     \40\``Military Cash Flows for New Water Supply,'' story by Kevin 
Dennehy, Cape Cod Times, April 24, 2002, attached as Exhibit 9.
     \41\``Work to Clean Cape Cod Continues as Pentagon Seeks 
Environmental Exemptions,'' 5/27/2002 story by Melissa Robinson, 
reported in Boston Globe Online, 5/29/2002, attached as Exhibit 10.
     \42\``Group calling for cleanup of perchlorate in Aberdeen,'' 10/
3/2002 article by Lane Harvey Brown in the Baltimore Sun, attached as 
Exhibit 11.
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    Indeed, perchlorate contamination from military training, research, 
and production activities has caused widespread groundwater 
contamination in at least 22 states, according to the Wall Street 
Journal.\43\ DOD's proposed legislation would likely be read to preempt 
or impair state authority to address many of these sites, including 
some privately owned defense contractor sites, under RCRA, CERCLA, and 
analogous state laws.
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     \43\See Exhibit 8.
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DOD's proposed amendments to RCRA, CERCLA and the Clean Air Act are 
        far-reaching, and go far beyond DOD's stated concerns with 
        readiness
    DOD has repeatedly stated that its proposed amendments are very 
narrowly focused.\44\ We disagree. As described above, neither the 
Clean Air Act, RCRA, nor CERCLA has had any adverse impacts on 
readiness. All three laws have provisions allowing for waivers of their 
requirements sufficient to address any potential readiness concerns. 
Considering the magnitude of the munitions contamination problem at 
FUDS and other DOD sites, and the groundwater contamination at sites 
such as the Massachusetts Military Reservation and the Aberdeen Proving 
Grounds, any change in DOD's obligation to comply with cleanup 
requirements has the potential for large impacts. But the bottom line 
is that DOD's proposed amendments likely create broad exemptions that 
jeopardize the states' ability to protect their citizens' health and 
environment, without any corresponding benefit to readiness.
---------------------------------------------------------------------------
     \44\See, e.g., Exhibit 2.
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    DOD's amendment to RCRA would likely be read to preempt or impair 
state and EPA authority over munitions-related and explosives-related 
wastes at active military bases, closing bases, FUDS, and private 
contractor sites.
    Proposed section 2019 would define when munitions, explosives, 
unexploded ordnance and constituents thereof are ``solid wastes'' under 
RCRA, and thus potentially subject to regulation as hazardous 
wastes.\45\ By narrowing this definition, DOD's amendments limit the 
scope of EPA's authority under RCRA, as well as state authority under 
state hazardous waste laws. The change in the definition of ``solid 
waste'' would affect state authority because the term appears in RCRA's 
waiver of Federal sovereign immunity--the provision of the law that 
makes DOD subject to state hazardous waste laws. The RCRA waiver of 
immunity applies to state ``requirements respecting the control and 
abatement of solid waste or hazardous waste disposal and 
management.''\46\ Thus, the scope of the RCRA sovereign immunity waiver 
will likely be affected by amendments to RCRA's definition of solid 
waste. And because waivers of immunity are construed extremely 
narrowly, any ambiguity in the definition of solid waste will likely be 
construed in the way that results in the narrowest waiver.\47\ By re-
defining ``solid waste'' in a very limited fashion, DOD's proposed 
amendment will likely preempt or impair state authority over munitions, 
explosives and the like not only at operational ranges, but--contrary 
to DOD's assertions--also at FUDS, DOD sites other than ranges, DOE 
facilities, and even at private defense contractor sites.
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     \45\See 42 U.S.C. Sec. 6903(5) and (27). Section 6903(5) defines 
``hazardous waste'' as ``a solid waste, or combination of solid 
wastes,'' that exhibits certain characteristics. Section 6903(27) 
defines ``solid waste.'' Therefore, hazardous wastes are a subset of 
solid wastes.
     \46\42 U.S.C. Sec. 6961(a).
     \47\Department of Energy v. Ohio, 503 U.S. 607 (1992). See also 
the discussion of Hancock v. Train, supra.

DOD's proposed amendment to the definition of solid waste provides:
``2019. Range management and restoration
    ``(a) Definition of Solid Waste. (1)(A) The term `solid waste,' as 
    used in the Solid Waste Disposal Act, as amended (42 U.S.C. 6901 et 
    seq.), includes explosives, unexploded ordnance, munitions, 
    munition fragments, or constituents thereof that;
    ``(i) are or have been deposited, incident to their normal and 
    expected use, on an operational range, and;
    ``(I) are removed from the operational range for reclamation, 
    treatment, disposal, treatment prior to disposal, or storage prior 
    to or in lieu of reclamation, treatment, disposal, or treatment 
    prior to disposal;
    ``(II) are recovered, collected, and then disposed of by burial or 
    landfilling; or
    ``(III) migrate off an operational range and are not addressed 
    under the Comprehensive Environmental Response, Compensation, and 
    Liability Act of 1980, as amended (42 U.S.C. 9601 et seq.); or
    ``(ii) are deposited, incident to their normal and expected use, 
    off an operational range, and are not promptly rendered safe or 
    retrieved.
    ``(B) The explosives, unexploded ordnance, munitions, munitions 
    fragments, or constituents thereof defined as solid waste in 
    subparagraph (a)(1)(A) shall be subject to the provisions of the 
    Solid Waste Disposal Act, as amended, including but not limited to 
    sections 7002 and 7003, where applicable.
    ``(2) Except as set out in subparagraph (1), the term `solid 
    waste,' as used in the Solid Waste Disposal Act, as amended, does 
    not include explosives, unexploded ordnance, munitions, munitions 
    fragments, or constituents thereof that:
    ``(A) are used in training military personnel or explosives and 
    munitions emergency response specialists (including training in 
    proper destruction of unused propellant or other munitions);
    ``(B) are used in research, development, testing, and evaluation of 
    military munitions, weapons, or weapon systems;
    ``(C) are or have been deposited, incident to their normal and 
    expected use, and remain on an operational range, except as 
    provided in subparagraph (a)(1)(A);
    ``(D) are deposited, incident to their normal and expected use, off 
    an operational range, and are promptly rendered safe or retrieved; 
    or
    ``(E) are recovered, collected, and destroyed on-range during range 
    clearance activities at operational ranges, but not including the 
    on-range burial of unexploded ordnance and contaminants when the 
    burial is not a result of product use.
    ``Nothing in subparagraphs (2)(A), (B), (C), (D), or (E) hereof 
    affects the legal requirements applicable to explosives, unexploded 
    ordnance, munitions, munitions fragments, or constituents thereof 
    that have been deposited on an operational range once the range 
    ceases to be an operational range.'' (Italics indicate substantive 
    changes from the 2002 version of DOD's proposal.)
    As an initial matter, paragraph 2019(a)(1) applies to an extremely 
broad ranges of items. It does not just cover munitions, munitions 
fragments, explosives, ordnance, and unexploded ordnance, but also 
constituents of any of those items. That means it applies not just to 
unexploded ordnance that may contaminate an area, but also to the 
chemical constituents of the ordnance such as perchlorate, TNT, or 
RDX--that may have leached out and contaminated the soil and 
groundwater. For convenience, we will generally refer only to munitions 
when describing the scope of section 2019, but it is well to remember 
that it actually covers many more items.
    Paragraph 2019(a)(1) sets forth the circumstances under which 
munitions are solid wastes. Again, because the term ``solid waste'' is 
used in RCRA's waiver of immunity, it will be construed narrowly. Thus, 
under paragraph 2019(a)(1), the only circumstances under which 
munitions will be considered solid wastes are if: (1) they are or have 
been deposited, incident to their normal and expected use, on an 
operational range, and then one of three things happens: they are 
removed from the range; or are recovered and then buried; or migrate 
off range and are not addressed under CERCLA; or (2) they are 
deposited, incident to their normal and expected use, off an 
operational range, and are not promptly rendered safe or retrieved.
    Subparagraph 2019(a)(2)(C) compels the same conclusion, because it 
expressly limits the instances in which munitions-related materials 
that ``are or have been deposited, incident to their normal and 
intended use, on operational ranges,'' to the circumstances set forth 
in 2019(a)(1). This year, DOD has added a sentence to the end of 
section 2019 that it says limits the scope of this section to only 
``operational'' ranges.
    We disagree that the new language limits the reach of section 2019. 
First, it only limits the impact of paragraph 2019(a)(2), not paragraph 
2019(a)(1). As noted above, because of the narrow construction courts 
place on waivers of immunity, even absent the language of 
2019(a)(2)(C), paragraph 2019(a)(1) likely will be read as defining the 
exclusive universe of circumstances under which states may regulate 
munitions pursuant to the RCRA waiver. Paragraph 2019(a)(1) excludes 
from the definition of solid waste munitions that were deposited on an 
operational range while it was operational and remain there after it 
closed.
    Second, the new language is ambiguous. It can be read to mean that 
nothing in paragraph 2019(a)(2) affects the legal requirements 
applicable to munitions that were deposited on a range after the range 
ceased to be operational. This would result in a narrower waiver of 
immunity than the interpretation DOD has proffered, and consequently 
would likely be the interpretation a Federal court would adopt.
    Third, in 1997, EPA deferred promulgation of a rule that would have 
codified EPA's interpretation that munitions left in place at the time 
a range closed or was transferred out of military control are solid 
wastes as defined in RCRA.\48\ In light of EPA's regulatory inaction, 
DOD may argue that there currently are no legal requirements applicable 
to munitions that were deposited on a range while it was operational, 
and remain there after it has closed.\49\ It could then argue that 
subparagraph 2019(a)(2)(C) precludes EPA from promulgating any such 
regulation in the future, because the munitions are not a solid waste 
as defined in RCRA.
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     \48\``Military Munitions Rule,'' 62 Fed. Reg. 6622, 6632 (2/12/
97). Under this interpretation, such munitions would have been 
statutory solid wastes, but not ``regulatory'' solid wastes. (EPA's 
regulatory definition of solid waste is narrower than the statutory 
definition. See 40 CFR 261.2.) Both regulatory and statutory solid 
wastes may be subject to RCRA's imminent and substantial endangerment 
provisions (42 U.S.C. Sec. Sec. 6972 and 6973) and, if located at a 
facility subject to RCRA permitting requirements, its corrective action 
authorities (see 42 U.S.C. Sec. Sec. 6924(u) and (v) and 6928(h)). 
However, only regulatory solid wastes are subject to the full panoply 
of RCRA permit and management requirements. See 42 U.S.C. 
Sec. 6903(27); Military Toxics Project v. EPA, 146 F.3d 948, 950-51 
(D.C. Cir. 1998). EPA also proposed that its interpretation of 
munitions on closed ranges as solid wastes would ``sunset'' if and when 
DOD promulgated a rule allowing for public involvement in the cleanup 
of closed and transferred ranges. EPA decided to postpone action on 
this rule in part because many commenters argued that DOD had no 
authority to promulgate such a rule, and that such deferral would be 
contrary to the Federal Facility Compliance Act. When Congress passed 
the Federal Facility Compliance Act, it rejected a Senate proposal that 
would have allowed DOD to regulate waste munitions, in favor of state 
and EPA regulation under RCRA. See House Conf. Rep. No. 102-886 (Sept. 
22, 1992), pp. 28-29.
     \49\EPA's final munitions rule--including its decision to postpone 
promulgation of the provision defining certain munitions as statutory 
solid wastes--does not mean that discharged munitions on ranges cannot 
be statutory solid wastes. Under the Federal Facility Compliance Act, 
if such munitions meet the statutory definition of ``discarded,'' they 
are statutory solid wastes. The Department of Justice took this 
position in recent litigation concerning the Navy's facilities in 
Vieques, Puerto Rico. See Water Keeper Alliance v. U.S. Department of 
Defense, 152 F. Supp.2d 163, 176, n. 3 (``Defendants [the United 
States] point out that they `do not seek dismissal of any claim that 
ordnance debris and unexploded ordnance left to accumulate on the [Live 
Impact Area] constitute solid waste.' [citation omitted] Consequently, 
the Court will not dismiss this claim.'')
---------------------------------------------------------------------------
    Even with DOD's revision to proposed section 2019, munitions that 
were deposited on an operational range and simply remain there after 
the range closed or was transferred are not solid wastes under RCRA, 
and thus cannot be hazardous wastes. Such residual unexploded ordnance 
and explosives contamination is precisely the problem at closed, 
transferring and transferred ranges. Contrary to DOD's assertions that 
this amendment only affects operating ranges, this amendment would also 
likely be read to preempt states and EPA from regulating the cleanup of 
unexploded ordnance and related materials at the 16 million acres of 
land on closed, transferred, and transferring ranges (i.e., FUDS) that 
are potentially contaminated with unexploded ordnance. In many cases, 
this ordnance was deposited on these ranges decades ago.
    In addition, paragraph 2019(a)(1) is not limited to ranges on 
military bases. Under EPA's ``Military Munitions Rule'' (see 
below),\50\ a range may include land owned by an entity under contract 
with DOD or DOE that is set aside for researching, developing, testing 
and evaluating military munitions and explosives. In other words, a 
military range may include defense contractor facilities.\51\ Paragraph 
2019(a)(1) may thus preempt state and EPA authority under RCRA and 
analogous state laws to address groundwater contaminated with 
perchlorate or other munitions constituents at defense contractor sites 
that may be considered ranges, potentially including some of those 
described in the Wall Street Journal article.\52\
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     \50\40 CFR Sec. 266.201.
     \51\We understand that DOD may be offering a similar definition 
for codification in Title 10 of the U.S. Code. This proposed definition 
would then apply to proposed section 2019.
     \52\See Exhibit 8.
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    Proposed subsection 2019(a) may well override state and EPA 
authority to address munitions-related environmental contamination that 
is not on a range at all. To cite just one example, in the normal 
course of maintaining artillery shells, DOD generates a waste stream 
from ammunition washout known commonly as ``pink water.'' The water is 
pink due to the presence of trinitrotoluene (TNT), a constituent of 
both explosives and munitions (and a possible human carcinogen, 
according to EPA),\53\ in the water. Ammunition washout is not 
conducted on operational ranges, but has in at least one case led to 
environmental contamination. At Pueblo Chemical Depot in Colorado, 
ammunition washout created a plume of TNT-contaminated groundwater that 
has traveled over two miles, and has gone off the Depot to contaminate 
drinking water wells nearby. Under subparagraph 2019(a)(1)(A), this 
plume of TNT-contaminated groundwater would not be considered a solid 
waste (and thus excluded from the scope of the RCRA waiver of 
immunity), because the explosives constituents have not been deposited 
on an operational range, nor have they been deposited ``incident to 
their normal and expected use,'' off an operational range. A similar 
result would obtain at the Los Alamos National Laboratory (a Department 
of Energy facility), where explosives constituents have contaminated 
groundwater approximately 1,000 feet below the ground surface.
---------------------------------------------------------------------------
     \53\See Exhibit 7.
---------------------------------------------------------------------------
    Proposed paragraph 2019(a)(2) provides a broad exemption that may 
also encompass munitions-related contamination at defense contractor 
sites. This paragraph exempts from the definition of solid waste 
explosives and munitions that are used in training or in research, 
development, testing, and evaluation of military munitions, weapons, or 
weapon systems. This provision appears to create a wholesale exemption 
for explosives and munitions. It is not limited to ranges at all, but 
instead applies to any facility with such wastes, such as facilities 
owned and operated by defense contractors who produce munitions 
constituents, including perchlorate, TNT, or RDX, or who produce 
munitions, weapons, or weapons systems. Because this exemption includes 
munitions and explosives constituents, it may extend to waste streams 
from the production of munitions or explosives. Thus, under paragraph 
2019(a)(2), the perchlorate contamination from the Aerojet-General 
corporation's plant near Rancho Cordova, California, or from the Kerr-
McGee ammonium perchlorate production facility in Henderson, Nevada, 
that are described in the Wall Street Journal article\54\ likely would 
not be subject to regulation as a solid or hazardous waste under RCRA.
---------------------------------------------------------------------------
     \54\See Exhibit 8.
---------------------------------------------------------------------------
    Proposed subsection 2019(a)(2) may even extend to the chemical 
munitions scheduled for destruction at various military installations 
around the country. If DOD conducts or has conducted research or 
evaluation of chemical munitions constituents (such as mustard agent)--
even for defensive purposes--under subparagraph 2019(a)(2)(A), these 
materials could be considered exempt from the definition of solid 
waste. Currently, states have the authority to regulate the scheduled 
destruction of chemical agent stockpiles around the United States under 
RCRA. For example, Colorado is planning to issue a permit for the 
destruction of 780,000 rounds of mustard agent at the Pueblo Chemical 
Depot. DOD's proposed amendments may call into question Colorado's and 
other states' authority over the destruction of these chemical weapons.
DOD's amendments do not simply codify EPA's ``Military Munitions Rule"
    DOD states that its proposed amendments would ``clarify and 
confirm'' EPA's ``Military Munitions Rule.'' We disagree. DOD's 
proposal differs from the munitions rule in at least four significant 
ways. First, DOD's proposal narrows RCRA's statutory definition of 
solid waste, while the munitions rule does not affect RCRA's statutory 
definition of solid waste. Thus, unlike the munitions rule, this 
statutory change precludes states and EPA from using RCRA's imminent 
and substantial endangerment authorities to address most munitions-
related contamination. In addition, changing the statute's definition 
of solid waste likely narrows RCRA's waiver of immunity and likely 
limits EPA's authority to regulate munitions under RCRA, as described 
below.
    Second, by narrowing the statutory definition of solid waste, a 
term used in RCRA's waiver of sovereign immunity, DOD's amendments 
likely narrow the waiver of immunity. The amendments may thus preempt 
state authority to require the cleanup of most munitions-related 
contamination, including unexploded ordnance and perchlorate 
contamination, under RCRA. In contrast, the munitions rule does not 
preempt state authority at all. When it first proposed the munitions 
rule, EPA solicited comment on a regulatory approach that would preempt 
states from enforcing broader or more stringent requirements respecting 
military munitions.\55\ In the final rule, EPA determined not to adopt 
such an approach, and expressly acknowledged that under RCRA sections 
3006 and 3009, ``States may adopt requirements with respect to military 
munitions that are more stringent or broader in scope than the Federal 
requirements.''\56\
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     \55\60 Fed. Reg. 56488 (Nov. 8, 1995).
     \56\62 Fed. Reg. 6625 (Feb. 12, 1997).
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    Third, as described above, DOD's proposal likely prevents EPA from 
promulgating additional regulations under RCRA governing the cleanup of 
munitions on non-operational ranges, because they are excluded from the 
statute's definition of solid waste. Under the munitions rule, EPA 
expressly reserved promulgation of such regulations for future 
decision.\57\
---------------------------------------------------------------------------
     \57\``Military Munitions Rule,'' 62 Fed. Reg. 6622, 6632. See note 
48, supra.
---------------------------------------------------------------------------
    Fourth, by including the phrase ``or constituents thereof,'' in 
paragraphs 2019(a)(1) and (a)(2), DOD's proposal may well preempt state 
and EPA authority over munitions-related and explosives-related 
constituents that have leached from the munitions and are contaminating 
the environment. These include chemicals such as perchlorate, RDX, TNT, 
DNT and white phosphorous. The munitions rule does not address 
munitions constituents at all, and does not prevent EPA or the states 
from requiring cleanup of these chemicals when they leach from 
munitions into the soil or groundwater.\58\
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     \58\62 Fed. Reg. 6631.
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DOD's proposed amendments to CERCLA go far beyond DOD's stated concerns 
        with readiness
    Proposed subsection 2019(b) has similarly broad consequences for 
CERCLA. This provision states:
    ``(b) Definition of Release. (1) The term `release,' as used in the 
Comprehensive Environmental Response, Compensation, and Liability Act 
of 1980, as amended (42 U.S.C. 9601 et seq.), includes the deposit off 
an operational range, or the migration off an operational range, of any 
explosives, unexploded ordnance, munitions, munitions fragments, or 
constituents thereof.
    ``(2) The term `release,' as used in the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980, as 
amended (42 U.S.C. 9601 et seq.), does not include the deposit or 
presence on an operational range of any explosives, unexploded 
ordnance, munitions, munitions fragments, or constituents thereof that 
are or have been deposited thereon incident to their normal and 
expected use and remain thereon.
    ``(3) Notwithstanding the provisions of paragraph (2), the 
authority of the President under section 106(a) of the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980, as 
amended (42 U.S.C. 9606(a)), to take action because there may be an 
imminent and substantial endangerment to the public health or welfare 
or the environment because of an actual or threatened release of a 
hazardous substance includes the authority to take action because of 
the deposit or presence on an operational range of any explosives, 
unexploded ordnance, munitions, munitions fragments, or constituents 
thereof that are or have been deposited thereon incident to their 
normal and expected use and remain thereon.
    ``(4) Nothing in this section affects the authority of the 
Department to protect the environment, safety, and health on 
operational ranges.''
    DOD's proposed change to the definition of ``release'' may narrow 
the scope of state authority under state superfund-type laws, because 
it may narrow CERCLA's waiver of immunity. CERCLA's waiver of immunity 
includes state laws ``concerning removal and remedial action.''\59\ 
CERCLA's definitions of ``removal'' and ``remedial action'' are limited 
by the definition of ``release.''\60\ Thus, by excluding the ``deposit 
or presence on an operational range of any explosives, unexploded 
ordnance, munitions, munitions fragments, or constituents thereof that 
are or have been deposited thereon incident to their normal and 
expected use'' from the definition of ``release,'' paragraph 2019(b)(2) 
arguably precludes state superfund authority over munitions-related 
contamination on operational ranges.
---------------------------------------------------------------------------
     \59\42 U.S.C. Sec. 9620(a)(4).
     \60\42 U.S.C. Sec. 9601(23) and (24).
---------------------------------------------------------------------------
    Read in conjunction with proposed paragraph 2019(b)(1), paragraph 
2019(b)(2) also may be read to preclude prevents states from requiring 
cleanup of munitions-related contamination on closed, transferred, and 
transferring ranges (i.e., FUDS) under state superfund-type laws. This 
statutory construction follows from the fact that paragraph 2019(b)(2) 
excludes the both the deposit and the presence of munitions-related 
contamination on an operational range from the definition of release. 
Consequently, the presence on a closed, transferring or transferred 
range of munitions-or explosives-related contamination that was 
deposited when the range was operational could only be considered a 
``release'' if paragraph 2019(b)(1) specifically included the presence 
of munitions-related contamination on a non-operational range in its 
definition of release.
    However, paragraph 2019(b)(1) only says that the deposit or 
migration of munitions-related contaminants off an operational range 
constitutes a release under CERCLA. Thus, under subsection 2019(b), 
munitions-related contamination on a former military range that arises 
from the deposit of such materials on the range while it was still 
operational may not be considered a ``release'' under CERCLA, and would 
not fall within the scope of CERCLA's waiver of immunity. States may 
thus be precluded from using their state superfund-type laws to require 
DOD to address munitions-related contamination, including residual 
unexploded ordnance or soil or groundwater contaminated with munitions 
constituents such as perchlorate, RDX, or TNT at former military 
ranges. Additionally, there are several states whose superfund-type 
laws are tied to definitions in CERCLA. Amending CERCLA's definition of 
``release'' may limit these states' ability to require parties other 
than DOD to clean up such contamination at former ranges.
    Subsection 2019(b)'s overall impact on EPA's CERCLA authority to 
clean up munitions-related contamination on operational ranges is far 
from clear. While preserving the President's authority under CERCLA 
section 106, this provision appears to eliminate section 104 removal 
and remedial authority for munitions-related and explosives-related 
contamination. It also appears to remove the cleanup of such 
contamination from the scope of CERCLA section 120 interagency 
agreements for sites on the National Priorities List. This means that 
EPA will no longer have authority to select (or concur in) remedies for 
munitions-and explosives-related contamination at NPL sites. This 
provision may also be read to eliminate the requirement that 
investigation and cleanup of these contaminants be conducted according 
to standards that apply to all other CERCLA cleanups. By removing these 
public involvement, procedural, substantive and technical safeguards, 
section 2019(b) may undermine the goal of achieving cleanups that 
adequately protect human health and the environment.
    Finally, section 2019 may limit state and Federal authority to 
pursue natural resource damage actions for contamination caused by 
munitions and explosives constituents. Natural resource damages are 
only available for releases of hazardous substances that cause injury 
to, loss of, or destruction of natural resources.\61\ By restricting 
the definition of solid waste to exclude munitions and explosives 
constituents, subsection 2019(a) may exclude some such constituents 
from being ``hazardous substances'' under CERCLA.\62\ And by 
restricting the definition of ``release'' under CERCLA, subsection 
2019(b) restricts the number of sites where natural resource damage 
claims may be pursued.
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     \61\42 U.S.C. Sec. 9607(a)(4)(C).
     \62\See 42 U.S.C. Sec. 9601(14).
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Conclusion
    DOD's far-reaching amendments to RCRA, CERCLA, or the Clean Air Act 
are not warranted. These laws have not impacted readiness, and are not 
likely to do so. As shown in the preceding portions of our testimony, 
DOD's proposed amendments to RCRA, CERCLA and the Clean Air Act have 
little to do with maintaining readiness. They would, however, provide 
substantial exemptions from environmental requirements. The activities 
that DOD would exempt from the environmental laws can have significant 
adverse impacts on human health and the environment. States have 
historically worked cooperatively with DOD to find solutions to 
environmental problems at military installations that minimize 
regulatory burdens while protecting human health and the environment. 
We would be glad to continue this work with DOD to develop ways to 
address its readiness concerns within the context of the existing 
environmental laws.
    We would also urge that any proposed legislation on this issue go 
through a normal legislative process with public hearings before the 
committees with jurisdiction over the environmental laws. The normal 
legislative process allows interested parties, including the states--
which are the primary implementers and enforcers of the nation's 
environmental laws--an opportunity to present their views on these 
matters. Such hearings would allow deliberate consideration of any 
proposed amendments. As we have shown above, seemingly small amendments 
to the environmental laws can have large effects, particularly when 
state authority over Federal agencies is at stake.
                                 ______
                                 
               National Association of Attorneys General
  Co-Sponsors: Attorney General Salazar, Attorney General Shurtleff, 
           Attorney General Gregoire, Attorney General Wasden
                             spring meeting
                           March 17-20, 2003
                             Washington, DC
                          proposed resolution
supporting the principle that federal facilities be subject to the same 
environmental standards as private industry and opposing amendments to 
     weaken state and epa authority over the department of defense
    WHEREAS, our nation has long made the protection of human health 
and the environment a priority through enactment of several 
environmental laws, including the Resource Conservation and Recovery 
Act, the Clean Air Act, the Clean Water Act, the Safe Drinking Water 
Act, and the Comprehensive Environmental Response, Compensation, and 
Liability Act (Superfund); and
    WHEREAS, Congress recognized in each of these laws that the States 
have a fundamental right to protect their citizens and the environment 
within their borders and therefore included in each law a waiver of the 
Federal Government's sovereign immunity; and
    WHEREAS, the Attorneys General play a primary role in protecting 
human health and the environment through their enforcement of State 
laws authorized under the Resource Conservation and Recovery Act, the 
Clean Air Act, the Clean Water Act, and the Safe Drinking Water Act, 
and through representation of their States in cases brought under 
Superfund, and
    WHEREAS, despite Congress' long-standing adherence to the principle 
that Federal agencies should be subject to the same environmental 
standards and enforcement as private industry, the States have 
experienced significant difficulty in bringing Federal agencies into 
compliance with Federal and State environmental laws because Federal 
agencies continue to dispute the extent of waivers of immunity in the 
environmental laws; and
    WHEREAS, Federal agencies have long been recognized as the nation's 
largest polluters with thousands of contaminated sites across the 
Nation, which will cost hundreds of billions of dollars to remediate; 
and
    WHEREAS, consideration and adoption of proposed legislation through 
regular order, with full and open hearings before the congressional 
committees of jurisdiction, is one of the fundamental procedural 
safeguards of the legislative process, because it allows an opportunity 
for interested parties to present their views, allows for construction 
of a record upon which the need for legislation can be judged, and 
allows for debate on the merits of any proposed legislative language; 
and
    WHEREAS, the Department of Defense has proposed legislation 
amending RCRA, CERCLA and the Clean Air Act that would provide broad 
exemptions from these laws, notwithstanding the lack of any 
demonstration that any of these laws has adversely impacted military 
readiness, and notwithstanding the existence of waiver mechanisms in 
each of these laws; and
    WHEREAS, these proposed amendments to RCRA and CERCLA would preempt 
State and EPA authority over munitions-related and explosives-related 
wastes at a broad range of sites, including Department of Energy 
facilities, defense contractor sites, current military bases, and up to 
16 million acres of former ranges that may be contaminated with 
unexploded ordnance; and
NOW, THEREFORE, BE IT RESOLVED THAT THE NATIONAL ASSOCIATION OF 
        ATTORNEYS GENERAL:
    1. Urges the Congress to consider legislation affecting Federal 
agency compliance with environmental requirements only through regular 
order, and to solicit and consider the views of affected States in 
considering any such legislation;
    2. Urges Congress to strengthen and clarify existing waivers of 
immunity in Superfund and the Clean Water Act, and in the other 
environmental laws, as appropriate, and to reject any proposed 
amendments that would impair States' authority to protect the health of 
their citizens, such as DOD's proposed amendments to RCRA, CERCLA and 
the Clean Air Act;
    3. Re-establishes the Federal Facilities Working Group, composed of 
representatives of the offices of interested Attorneys General, under 
the auspices of the NAAG Environment Committee to serve as a resource 
to the Attorneys General/ NAAG regarding Federal agency compliance with 
State and Federal environmental laws; to monitor proposed legislation 
and regulatory actions in this area; and to assist the Attorneys 
General in formulating such responses to such proposed legislation and 
regulatory actions as may be timely and appropriate; and
    4. Authorizes the Executive Director to transmit this resolution to 
Congress, the Administration, and other interested organizations and 
individuals; and to monitor and report back on proposed legislation 
that might impair State authority over Federal facilities.
                                 ______
                                 
                             Exhibits 1-11




























































































































                               __________
Statement of Douglas Benevento, Executive Director, Colorado Department 
                    of Public Health and Environment
    Good morning, my name is Doug Benevento and I am the executive 
director of the Colorado Department of Public Health and Environment. 
In that position I am responsible for the oversight of the State of 
Colorado's air, water, solid waste and hazardous waste programs as well 
as the bulk of the state's health programs. The majority of the 
programs that I am responsible for on the environmental side are 
programs that are delegated to the state through the Clean Air Act, the 
Clean Water Act, or the Resource Conservation and Recovery Act. Also, I 
am a member of the Environmental Council of States and serve on that 
body's executive committee. Also, I am also a co-chair of ECOS' DoD 
forum, which is designed to open communications with DoD for the 
purpose of working through issues like this one. I do want to make 
clear though that today I am speaking for the state of Colorado and not 
ECOS or the DoD forum.
    It is a great honor for me to be testifying before the U.S. Senate. 
Prior to moving back to Colorado in June 1999 I had worked for almost 
10 years for Senator Allard in a variety of staff positions and it is 
truly a great honor to be testifying before a committee he serves on.
    Since returning to Colorado to first run the environmental programs 
and subsequently to run the entire agency my involvement in Federal 
facilities has increased dramatically both from the standpoint of day 
to day cleanup and oversight of these facilities to such non-routine 
matters such as how to handle sarin nerve gas bomblets manufactured 
decades ago at the Rocky Mountain Arsenal and found in a junk pile at 
the site.
    My experience on both Capitol Hill and in state government has 
given me a unique perspective on environmental issues as they impact 
the military. Those who have a background developing environmental laws 
or those who are environmental regulators tend to automatically react 
negatively to any change in the laws that could provide more 
flexibility to the military. This conclusion is reinforced for me by 
reviewing testimony from a hearing on this issue last year where 
colleagues of mine in environmental regulation did a superb job of 
pointing out every potential and actual shortfall in a similar proposal 
without offering any suggestions for making the proposal viable.
    On the other hand the proponents of more flexibility tend to 
develop their proposals in isolation and then spring them out at the 
last moment, professing surprise that there would be any questions that 
would arise. A good example of this was also last year when final 
language was proposed and states learned about it at about the time it 
was being considered in Congress. Last year we did not feel like our 
advice was being seriously sought or considered.
    This year is different and I am very grateful that states are being 
asked by this committee for their opinions early on. I believe that 
based upon the early outreach and the willingness that DoD and 
congressional staff have expressed to me with respect to working on 
this issue we can craft language that meets the needs of all parties.
    Much of the credit for this is due to the outreach that this 
committee and other committees are engaging in on this topic. I also 
want to thank DoD for spending a lot of time with me over the past week 
and walking through the issues they face. My experience is that these 
kinds of issues are resolvable so long as the lines of communication 
are open. I commend the committee for helping open those lines of 
communication.
    I am here today to try and offer some suggestions that would be 
helpful in resolving some of the issues surrounding the proposed 
amendments to certain environmental laws. These amendments are called 
the Readiness and Range Preservation Initiative and seek to provide 
greater flexibility for the military so that they ensure that their 
training is done in a fashion that is timely and not hindered by 
unnecessary environmental requirements. I offer my suggestions today in 
the spirit of allowing DoD to reach that goal while at the same time 
ensuring that offsite impacts are prevented or mitigated.
    The suggestions that I offer today are based upon the principle 
that no harm to the public would be acceptable to the state of 
Colorado, DoD, or this committee. I believe that the suggestions that I 
will offer are consistent with this criterion.
    Specifically, I would today like to address the proposal of DoD 
with respect to the changes they are seeking to CERCLA, RCRA, and the 
Clean Air Act. These are the environmental laws that my agency is 
either responsible for implementing through a delegation or, in the 
case of CERCLA, a law which we partner with EPA on implementing.
    With some changes in general I think Colorado would be comfortable 
with the goals stated by Armed Services Committee staff and DoD of 
ensuring essential training activities can be accomplished and that 
public health is protected.
    I would like to spend the rest of my time defining what I see as 
the issues and then offer suggestions on how those issues can be 
resolved in a fashion that ensures military training can be done 
without unnecessary delay while also ensuring that public health and 
the environment is protected. I don't have statutory language to offer 
at this time but would be happy to draft something for the committee if 
it would be helpful.
    After reading the statutory language and prior testimony on this 
issue it appears as if DoD is seeking exemptions from certain portions 
of environmental laws including: the Resource Conservation and Recovery 
Act (RCRA) and the Comprehensive Environmental Response, Compensation, 
and Liability Act (CERCLA) and seeking time extensions from compliance 
with portions of the Clean Air Act. My understanding of the intent of 
the DoD in seeking these exemptions under RCRA and CERCLA is to allow 
for training at specifically identifiable sites. As I understand, DOD 
is not seeking to be excused from any cleanup obligations under RCRA or 
CERCLA for contamination it causes, nor from any offsite impacts, nor 
from obligations under the Safe Drinking Water Act. Finally, DOD is not 
seeking a permanent exemption from hazardous waste management 
requirements under RCRA at the defined sites. Under the CAA my 
understanding of the intent of the DoD is to allow for movement of 
planes and other mechanized material between bases without triggering 
immediate applicability of portions of the CAA. In short:
    1. They are seeking time extensions from portions of the Clean Air 
Act.
    2. Also, they are seeking exemptions from RCRA on operational 
ranges where the military is actively undertaking military training 
where, ``explosives, unexploded ordnance, munitions, munitions 
fragments, or constituents thereof,'' could be found.
    3. Finally, they are seeking a clarification of the definition of 
what is a release under CERCLA.
    I would like to comment on the proposed changes to RCRA, CERCLA, 
and the CAA and to offer some suggestions that from my perspective 
would make all three proposals more workable.
    First, I would like to address RCRA. I want to state at the outset 
that I don't know of any state that issues RCRA permits or attempts to 
regulate normal training activities of the military. Colorado has 
worked well with DoD on training activities on their sites in our 
state. I think the proposed legislation attempts to codify a generally 
good relationship with Colorado and other states on these issues.
    I have had several conversations with DoD and Armed Services 
Committee staff on this topic and I think that I understand what they 
are attempting to accomplish and I think their goals in RCRA should be 
supportable by states. What DoD is seeking are protections for their 
training activities on a range. They are not, according to my 
conversations with them, seeking to exempt themselves from any impact 
caused by training off of a range.
    For example, in conversations with DoD they were clear that under 
RCRA they are not seeking a change to permitting of open burning or 
open detonation (OB/OD) when used as a disposal activity. Colorado 
currently permits such activities and will continue to permit such 
activities even under their proposed concept. However, under this law 
an OB/OD activity that is a necessary part of training would be exempt. 
That is legitimate and currently the practice in Colorado and other 
states.
    At the outset I want to state that like most environmental laws 
RCRA is relatively old and almost every word in the statute has a 
meaning applied to it either through adjudication, regulation, or 
common understanding. The current proposal before you seeks to change 
definitions in RCRA to exempt out certain training activities on 
certain DoD sites.
    The first issue that I would raise is that the language as drafted 
allows for exemptions at operational ranges. I can't find a definition 
of an operational range in current law or regulation and therefore 
don't know to what ranges this section would apply. There is no 
limitation on what is an operational range and that obviously causes 
some concern.
    Second, it is also unclear from the drafting whether the activities 
exempted must be on an operational range or whether certain activities 
can occur anywhere and still be exempted. My understanding from talking 
with DoD is that they are seeking exemptions from RCRA at operational 
ranges for legitimate DoD training activities. If that is correct this 
language is too broad and should be narrowed to accomplish the end they 
are seeking--assurances that sites they operate on would not be subject 
to RCRA permitting that could interfere with their training.
    Third, groundwater and surface water protection are also of concern 
in this regard. Depending upon the soil type and how near the 
groundwater is to the surface there is the possibility that groundwater 
could be contaminated by constituents of spent or live ordnance. 
Offsite impacts could be created from these activities and these should 
be addressed. It is my understanding that DOD's proposal would not 
affect their obligations under the Safe Drinking Water Act. It would be 
helpful if the legislation stated this explicitly.
    Therefore, I would like to suggest the following changes to the 
language that has been provided to the committee. First, don't change 
current definitions or any current law; instead create an exemption 
under a new section of RCRA. Second, limit the exemption to active 
ranges and inactive ranges and the munitions on those ranges. My 
understanding after talking with DoD is that they are seeking 
protection on active ranges and that they are seeking to preserve their 
ability to use inactive ranges in the future. I would avoid creating 
new terms, such as ``operational range'' because it isn't clear what 
that means. Instead, what I would recommend is that you create an 
exemption based off current definitions. Third, the exemption for 
inactive ranges may be controversial. However, the way it was explained 
to me by DoD was that these are ranges that are potentially useful in 
the future. The military does not want to give up their potential use 
because training sites are becoming difficult to find. Therefore, an 
exemption in both these areas makes sense. However, from a state 
perspective it would be helpful if every few years the military was 
forced to go through a review process of these inactive ranges and, 
after seeking public input, determine whether they should remain 
inactive, go to active status, or move to clean up status. Fourth, 
limit the exemption with tight language so that we all understand what 
we are exempting and what we are not exempting. Fifth, I would 
recommend that some kind of additional ground and or surface water 
monitoring be required if conditions dictate that to be appropriate. If 
the monitors did catch contamination then appropriate actions to 
prevent an environmental or public health concern could be required by 
states. Sixth, state clearly that in no way does this section impact 
cleanup responsibilities of DoD once the site no longer meets the 
definition of an active range. Seventh, mandate that DoD maintain good 
records of activities that take place on the range so that we know what 
was used on the site and what will be necessary for cleanup, without an 
expensive remedial investigation. Finally, it should be made clear that 
the exemptions are available only to DoD and not to contractors or 
other private parties.
    What this gets you is a solution to the expressed concern that RCRA 
could impact military training. What it does not do is expose the 
public to contaminants from ordnance. In this regard, I would also 
suggest the committee strike the part of proposed 
Sec. 2019(a)(1)(A)(i)(III) that allows material that goes offsite to be 
addressed under CERCLA before States can take action under their 
authorities to protect public health and the environment. There is no 
military readiness rationale for DoD to be given this priority for off-
range material, and States need to be able exercise their authority to 
protect the public. We have examples in Colorado from sites like the 
Rocky Mountain Arsenal where we have found it important to have the 
ability to exercise State authority over potential offsite impacts.
    A better approach may be one that several states have already 
worked out with DOD in a collaborative effort called the ``Munitions 
Response Committee.'' In this committee we have agreed with DoD to 
identify key decision points in the cleanup process for which we will 
seek consensus on decisions. If that can't be achieved, there would be 
an expeditious dispute resolution process. If agreement still can't be 
achieved, each party would rely on their existing CERCLA and RCRA 
authorities for action. This approach preserves both DOD's and States' 
existing authorities while making every effort to reach agreement. 
Further, since there is some agreement on this issue currently, it 
should not require a statutory change to RCRA or CERCLA.
    Finally, there has been considerable work and thinking over the 
last several years on the role of enforceable land use controls onsites 
where contamination remains. One example is Colorado's environmental 
covenants law. Mechanisms like Colorado's law give communities and 
regulatory agencies comfort that contamination is being monitored and 
that controls to protect public health and the environmental are 
established and enforced. This kind of approach should be considered 
for munitions that remain on DOD ranges.
    With the above caveats and changes I don't think that this type of 
narrow exemption under RCRA should cause a concern for human health or 
the environment. This exemption would meet DOD's need to conduct 
readiness activities without regulatory hindrance.
    The next exemption in the language that I have seen surrounds an 
exemption from the term ``release'' as used in CERCLA for the purposes 
of triggering action under that law. The exemption from release would 
apply to explosives, ordnance, etc on operational ranges but would not 
apply to releases offsite of an operational range.
    As with RCRA conceptually I would agree that there should be some 
middle ground that could be reached on a narrow exemption under the 
same criteria I outlined above for RCRA.
    Again I would encourage the committee to abandon any rewrite of the 
body of CERCLA and instead encourage adding on an exemption to CERCLA.
    The change being sought by DoD is really a limitation on Federal 
power. Since Superfund is not a delegated law this limitation would 
apply to an action by the Federal Government. The only recommendation 
we would have is that the exemption should apply, as with RCRA above, 
to active and inactive ranges and not operational ranges because as I 
noted above there is not yet an established definition of operational 
range and therefore what that term would apply to is uncertain. There 
is a definition of active and inactive range that should have some 
common understanding amongst both the military and environmental 
regulators that should provide some certainty as to what is being 
exempted.
    Finally, I would like to address the proposed changes to the Clean 
Air Act.
    This portion of the proposal is the most difficult to work with 
because it involves offsite releases. As I mentioned earlier in my 
testimony the principle that I ran these proposal through was whether 
any exemption would allow for an offsite release. Within the borders of 
a training area I think that statutory flexibility is appropriate. 
However, as Colorado's top public health official I must be concerned 
about offsite releases from any activity and then I must try and ensure 
that those impacts are minimized.
    There are two applicable air quality sections of the proposed 
legislation;
    The first is conformity. There are two parts to conformity the 
first is the concept of general conformity and the second is 
transportation conformity.
    This legislation would exempt the military from meeting the general 
conformity test that no Federal action will cause or contribute to the 
violation of the National Ambient Air Quality Standards (NAAQS). Under 
the proposal within 3 years after starting a military readiness 
activity, DoD would have to come into compliance with the requirements 
of the applicable law. The general conformity requirements would apply 
to any non-attainment or maintenance area of a state. In Colorado for 
example, this would most likely apply to the Colorado Springs area and 
the Denver area.
    The general conformity provisions would most likely apply in 
Colorado to fog oil or fire that that could lead to particulate non-
attainment situations. An area would have to develop a full SIP showing 
that all other measures are being taken to meet attainment including 
adoption of any mandatory Federal programs prescribed for that type of 
non-attainment area.
    My concern with this language is first and foremost the offsite 
impacts of the activities and the 3-year exemption from addressing 
those offsite impacts. However, I am also slightly confused by how this 
section would be implemented. The language says that there is a 3-year 
exemption but the administrator must approve the plan. I assume that 
the administrator and the states would have to show at some point that 
within years some control of the emissions from the military readiness 
activity had occurred. Second, I would like further information as to 
when the 3-year clock would start running. Section 2018(a)(3) states 
that, ``within 3 years of the date new activities begin'' the activity 
must conform to the requirements of the CAA. I think it would be 
important to have a common understanding on when these activities begin 
to avoid confusion. For example, if planes are being brought into an 
area is that a military readiness activity that trigger this section or 
does the activity begin when the new planes start arriving or when they 
are all onsite.
    Also, I think there may be an important practical problem with this 
approach. My responsibility is to protect public health and environment 
in Colorado. Therefore, if for example the Denver Metro Area were to 
fall into non-compliance with the NAAQS my goal would be to put 
controls in place as quickly as possible to protect air quality in the 
area. Therefore, if there were a 3-year restriction on controls at any 
military readiness activity we deemed was contributing to the problem 
my response would be to make my restrictions on other sources more 
stringent to make up for what the military was not contributing. As a 
practical matter what I would want to do in this situation is put 
control in place to ensure an area's air quality was safe. Because I 
would have to wait 3-years for certain exempted activities it would 
make sense for me to merely shift whatever burden turned out to be to 
other sources. This you can imagine would not be welcomed by those 
sources that felt they were being disproportionately controlled.
    I don't want to appear to be hypercritical of this proposal but I 
think it is important that it be fully understood prior to 
implementation so that states and EPA know fully what to expect. Also, 
it is important that DoD understand the potential impact from this 
change.
    My initial suggestion to fix this problem would be to exempt 
military readiness activities altogether instead of for merely 3 years. 
However, you should still require that the emissions budgets be 
developed as envisioned by this proposal and then require offsets on 
other non-military readiness activities in the impacted area from DoD 
sources. For example, requiring stricter controls at any power plants 
on military bases or require stricter controls for non-exempt vehicle 
fleets. If this would not offset the emissions increase then they would 
be required to purchase emissions credits from other sources in the 
area.
    This would meet the intent of DoD. However, this approach also has 
its own shortcomings that I want to be certain to point out. First, it 
could require the expenditure of significant amounts of money depending 
upon the offsets. Second, the offsets may not be available in a given 
area or may not be sufficient. Third, purchasing credits is a good 
market based approach but in many areas there is not a well-developed 
credit-trading program or credits may not be available in a given area.
    Another alternative would be to direct EPA to expand their natural 
events policy to include military activities. As you may know EPA has a 
policy that allows states to avoid non-attainment due to natural 
events. This policy has been used by Colorado to avoid PM10 
non-attainment in certain areas of the state that experience 
significant windborne dust and that result in attainment problems. The 
purpose of the policy is to first recognize that there are certain 
uncontrollable events that can cause non-attainment that should not 
lead to non-attainment designation. However, this policy does have 
certain mitigation and notification requirements that could be 
burdensome. Further, the policy would likely have to be adjusted so 
that it would meet the needs of the military better.
    The downside to this proposal of course would be that offsite 
impacts from training would still occur and may raise the concern of 
the community.
    I would be willing to continue to explore solutions to the issued 
brought up by DoD but at this point I would encourage the committee to 
proceed cautiously with this portion of the proposal.
    I understand that one of the motivations behind DOD's present 
proposal is concern about citizen suits potentially impacting its 
military readiness activities. Consistent with my overall comments, if 
this is a concern that Congress wishes to address, I suggest an 
exemption from citizen suits for readiness activities on active ranges 
rather than the definitional changes to the environmental laws 
proposed.
    Finally, as you are well aware, the question of sovereign immunity 
for DOD's waste management and cleanup obligations has been dealt with 
several times over the years by Congress. This has been necessary due 
to the narrow interpretation given such waivers by the Courts. In the 
interest of preserving the current state of the law and just narrowly 
addressing DOD's concern, the committee may wish to affirm that any 
exemption granted not enlarge the universe of current sovereign 
immunity.
    Thank you for your time and for asking me to testify. I would like 
to finish by re-emphasizing my belief that most of the issues brought 
up by DoD are resolvable with appropriate statutory changes. However, 
the one difficult area I would encourage some caution is with changes 
to the CAA.
                               __________
     Statement of Jamie Rappaport Clark, Senior Vice President for 
          Conservation Programs, National Wildlife Federation
    Good morning, Chairman Inhofe, Senator Jeffords and Members of the 
committee. My name is Jamie Rappaport Clark, Senior Vice President for 
Conservation Programs at the National Wildlife Federation, the nation's 
largest conservation education and advocacy organization. I am here to 
testify on behalf of National Wildlife Federation, as well as Defenders 
of Wildlife, the Endangered Species Coalition, Fund for Animals, Humane 
Society of the United States, Military Toxics Project, Public Employees 
for Environmental Responsibility, Public Interest Research Group, 
Natural Resources Defense Council, and World Wildlife Fund. I thank the 
committee for this opportunity to testify on the Administration's 
Readiness and Range Preservation Initiative.
    Prior to arriving at the National Wildlife Federation in 2001, I 
served for 13 years at the U.S. Fish and Wildlife Service, with the 
last 4 years as the Director of the agency. Prior to that, I served as 
Fish and Wildlife Administrator for the Department of the Army, Natural 
and Cultural Resources Program Manager for the National Guard Bureau, 
and Research Biologist for U.S. Army Medical Research Institute. I am 
the daughter of a U.S. Army Colonel, and lived on or near military 
bases throughout my entire childhood.
    Based on this experience, I am very familiar with the Defense 
Department's long history of leadership in wildlife conservation. On 
many occasions during my tenures at FWS and the Defense Department, DOD 
rolled up its sleeves and worked with wildlife agency experts to find a 
way to comply with environmental laws and conserve imperiled wildlife 
while achieving military preparedness objectives.
    The Administration now proposes in its Readiness and Range 
Preservation Initiative that Congress scale back DOD's responsibilities 
to conserve wildlife and to protect people from the hazardous pollution 
that DOD generates. This proposal is both unjustified and dangerous. It 
is unjustified because DOD's longstanding approach of working through 
compliance issues on an installation-by-installation basis works. As 
DOD itself has acknowledged, our armed forces are as prepared today as 
they ever have been in their history, and this has been achieved 
without broad exemptions from environmental laws.
    The DOD proposal is dangerous because, if Congress were to broadly 
exempt DOD from its environmental protection responsibilities, both 
people and wildlife would be threatened with serious, irreversible and 
unnecessary harm. Moreover, other Federal agencies and industry sectors 
with important missions, using the same logic as used here by DOD, 
would line up for their own exemptions from environmental laws.
    My expertise is in the Endangered Species Act (ESA), so I would 
like to focus my testimony on why exempting the Defense Department from 
key provisions of the ESA would be a serious mistake. I will rely on my 
fellow witnesses to explain why the proposed exemptions from other 
environmental and public health and safety laws is similarly unwise.
Concerns with the ESA Exemption
    The Defense Department's proposed ESA exemption suffers from three 
basic flaws: it would severely weaken this nation's efforts to conserve 
imperiled species and the ecosystems on which all of us depend; it is 
unnecessary for maintaining military readiness; and it ignores the 
Defense Department's own record of success in balancing readiness and 
conservation objectives under existing law.
1. Section 2017 Removes a Key Species Conservation Tool
    Section 2017 of the Administration's Readiness and Range 
Preservation Initiative would preclude designations of critical habitat 
on any lands owned or controlled by DOD if DOD has prepared an 
Integrated Natural Resources Management Plan (INRMP) pursuant to the 
Sikes Act and has provided ``special management consideration or 
protection'' of listed species pursuant to Section 3(5)(A) of the ESA.
    This proposal would effectively eliminate critical habitat 
designations on DOD lands, thereby removing an essential tool for 
protecting and recovering species listed under the ESA. Of the various 
ESA protections, the critical habitat provision is the only one that 
specifically calls for protection of habitat needed for recovery of 
listed species. It is a fundamental tenet of biology that habitat must 
be protected if we ever hope to achieve the recovery of imperiled fish, 
wildlife and plant species.
    Section 2017 would replace this crucial habitat protection with 
management plans developed pursuant to the Sikes Act. The Sikes Act 
does not require the protection of listed species or their habitats; it 
simply directs DOD to prepare INRMPs that protect wildlife ``to the 
extent appropriate.'' Moreover, the Sikes Act provides no guaranteed 
funding for INRMPs and the annual appropriations process is highly 
uncertain. Even the best-laid management plans can go awry when the 
anticipated funding fails to come through. Yet, under Section 2017, 
even poorly designed INRMPs that allow destruction of essential habitat 
and put fish, wildlife or plant species at serious risk of extinction 
would be substituted for critical habitat protections.
    Section 2017 contains one minor limitation on the substitution of 
INRMPs for critical habitat designations: such a substitution is 
allowed only where the INRMP provides ``special management 
consideration or protection'' within the meaning of Section 3(5)(A) of 
the ESA. Unfortunately, this limitation does nothing to ensure that 
INRMPs truly conserve listed species.
    The term ``special management consideration or protection'' was 
never intended to provide a biological threshold that land managers 
must achieve in order to satisfy the ESA. The term is found in Section 
3(5) of the ESA, which sets forth a two-part definition of critical 
habitat. Section 3(5)(A) states that critical habitat includes areas 
occupied by a listed species that are ``essential for the conservation 
of the species'' and ``which may require special management 
consideration or protection.'' Section 3(5)(B) states that critical 
habitat also includes areas not currently occupied by a listed species 
that are simply ``essential for the conservation of the species.''
    As this language makes clear, an ESA Sec. 3(5) finding by the U.S. 
Fish and Wildlife Service or National Marine Fisheries Service 
(Services) that a parcel of land ``may require special management 
consideration or protection'' is not the same as finding that it is 
already receiving adequate protection. Such a finding simply highlights 
the importance of a parcel of land to a species, and it should lead to 
designation of that land as critical habitat. See Center for Biological 
Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003) (rejecting, 
as contrary to plain meaning of ESA, defendant's interpretation of 
``special management consideration or protection'' as providing a basis 
for substituting a U.S. Forest Service management plan for critical 
habitat protection). By allowing DOD to substitute INRMPs for critical 
habitat designations whenever it unilaterally makes a finding of 
``special management consideration or protection,'' Section 2017 
significantly weakens the ESA.
    Section 2017 is also problematic because it would eliminate many of 
the ESA Section 7 consultations that have stimulated DOD to ``look 
before it leaps'' into a potentially harmful training exercise. As a 
result of Section 7 consultations, DOD and the Services have routinely 
developed what is known as ``work-arounds,'' strategies for avoiding or 
minimizing harm to listed species and their habitats while still 
providing a rigorous training regimen.
    Section 2017 purports to retain Section 7 consultations. However, 
the duty to consult only arises when a proposed Federal action would 
potentially jeopardize a listed species or adversely modify or destroy 
its critical habitat. By removing critical habitat designations on 
lands owned or controlled by DOD, Section 2017 would eliminate one of 
the two possible justifications for initiating a consultation, reducing 
the likelihood that consultations will take place. This would mean that 
DOD and the Services would pay less attention to species concerns and 
would be less effective in conserving imperiled species and maintaining 
the sustainability of the land.
    The reductions in species protection proposed by DOD would have 
major implications for our nation's rich natural heritage. DOD manages 
approximately 25 million acres of land on more than 425 major military 
installations. These lands are home to at least 300 federally listed 
species. Without the refuge provided by these bases, many of these 
species would slide rapidly toward extinction. These installations have 
played a crucial role in species conservation and must continue to do 
so.
2. The ESA Exemption is Not Necessary to Maintain Military Readiness
    The ESA already has the flexibility needed for the Defense 
Department to balance military readiness and species conservation 
objectives. Three key provisions provide this flexibility. First, under 
the consultation provision of Section 7(a)(2) of the Act, DOD is 
provided with the opportunity to develop solutions in tandem with the 
Services to avoid unnecessary harm to listed species from military 
activities. Typically, the Services conclude, after informal 
consultation, that the proposed action will not adversely affect a 
listed species or its designated critical habitat or, after formal 
consultation, that it will not likely jeopardize a listed species or 
destroy or adversely modify its critical habitat. See, e.g., U.S. Army 
Environmental Center, Installation Summaries from the fiscal year 2001 
Survey of Threatened and Endangered Species on Army Lands (August 2002) 
at 9 (noting successful conclusion of 282 informal consultations and 36 
formal consultations, with no ``jeopardy'' biological opinions). In 
both informal and formal consultations, the Services either will 
recommend that the action go forward without changes, or it will work 
with DOD to design ``work arounds'' for avoiding and minimizing harm to 
the species and its habitat. In either case, DOD accomplishes its 
readiness objectives while achieving ESA compliance.
    Second, under Section 4(b)(2) of the ESA, the Services are 
authorized to exclude any area from critical habitat designation if 
they determine that the benefits of exclusion outweigh the benefits of 
specifying the area. (An exception is made for when the Services find 
that failure to designate an area as critical habitat will result in 
the extinction of a species a finding that the Services have never 
made.) In making this decision, the Services must consider ``the 
economic impact, and any other relevant impact'' of the critical 
habitat designation. DOD has recently availed itself of this provision 
to convince the U.S. Fish and Wildlife Service to exclude virtually all 
of the habitat at Camp Pendleton habitat deemed critical to five listed 
species in proposed rulemakings--from final critical habitat 
designations. Thus, for situations where the Section 7(a)(2) 
consultation procedures place undue burdens on readiness activities, 
DOD already has a tool for working with the Services on excluding land 
from critical habitat designation. Attached to my testimony is a 
factsheet that shows how the Services have worked cooperatively with 
DOD on these exclusions, and another factsheet showing the importance 
of maintaining the Services' role in evaluating proposed exclusions.
    Third, under Section 7(j) of the ESA an exemption ``shall'' be 
granted for an activity if the Secretary of Defense finds the exemption 
is necessary for reasons of national security. To this date, DOD has 
never sought an exemption under Section 7(j)--highlighting the fact 
that other provisions of the ESA have provided DOD with all the 
flexibility it needs to reconcile training needs with species 
conservation objectives.
    Where there are site-specific conflicts between training needs and 
species conservation needs, the ESA provides these three mechanisms for 
resolving them in a manner that allows DOD to achieve its readiness 
objectives. Granting DOD a nationwide ESA exemption, which would apply 
in many places where no irreconcilable conflicts between training needs 
and conservation needs have arisen, would be harmful to imperiled 
species and totally unnecessary to achieve readiness objectives.
a. DOD Has Misstated the Law Regarding Its Ability to Continue with a 
        Cooperative, Case-by-Case Approach to Critical Habitat 
        Designations
    DOD has stated that the ESA exemption is necessary because a recent 
court ruling in Arizona would prevent DOD from taking the cooperative, 
case-by-case approach to critical habitat designations that was 
developed when I served as Director of the Fish and Wildlife Service. 
This description of the court ruling is inaccurate the ruling clearly 
allows DOD to continue the cooperative, case-by-case approach if it 
wishes.
    The court ruling at issue is entitled Center for Biological 
Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003). In this 
case, FWS excluded San Carlos Apache tribal lands from a critical 
habitat designation pursuant to ESA Sec. 4(b)(2) because the tribal 
land management plan was adequate and the benefits of exclusion 
outweighed the benefits of inclusion. The Federal district court upheld 
the exclusion as within FWS's broad authority under ESA Sec. 4(b)(2). 
At the same time, the court held that lands could not legitimately be 
excluded from a critical habitat designation on the basis of the 
``special management'' language in ESA Sec. 3(5).
    Under the court's reasoning, FWS continues to have the broad 
flexibility to exclude DOD lands from a critical habitat designation on 
the basis of a satisfactory INRMP and the benefits to military training 
that the exclusion would provide. The ruling simply clarifies that such 
exclusions must be carried out pursuant to ESA Sec. 4(b)(2) rather than 
ESA Sec. 3(5). Thus, DOD's assertion that the Center for Biological 
Diversity ruling prevents it from working with FWS to secure exclusions 
of DOD lands from critical habitat designations is inaccurate.
b. DOD's Anecdotes Do Not Demonstrate That the ESA Has Reduced 
        Readiness
    The DOD has offered a series of misleading anecdotes describing 
difficulties it has encountered in balancing military readiness and 
conservation objectives. Before Congress moves forward with any 
exemption legislation, the appropriate congressional committees should 
get a more complete picture of what is really happening at DOD 
installations.
    Some of DOD's anecdotes are simply unpersuasive on their face, such 
as DOD's repeated assertion that environmental laws have prevented the 
armed services from learning how to dig foxholes and that troops abroad 
have been put at greater risk as a result. There is simply no evidence 
that environmental laws have ever prevented foxhole digging. Moreover, 
given its vast and varied landholdings and the many management options 
available, the Defense Department certainly can find places on which 
troops can learn to dig foxholes without encountering endangered 
species or other environmental issues.
    Other anecdotes have simply disregarded the truth. For example, DOD 
and its allies have repeatedly argued that more than 50 percent of Camp 
Pendleton may not be available for training due to critical habitat 
designations. In fact, only five species have been proposed for 
critical habitat designations at Camp Pendleton. In each of these five 
instances, DOD raised concerns about impacts to military readiness, and 
in each instance, FWS worked closely with DOD to craft a solution. FWS 
ultimately excluded virtually all of the habitats for the five listed 
species on Camp Pendleton from critical habitat designations even 
though FWS had earlier found that these habitats were essential to the 
conservation of the species. As a result of FWS's exclusion decisions, 
less than 1 percent of the training land at Camp Pendleton, and less 
than 4 percent of all of Camp Pendleton, is designated critical 
habitat. (Most of the critical habitat designated at Camp Pendleton is 
non-training land leased to San Onofre State Park, agricultural 
operations, and others. DOD's repeated suggestion that more than 50 
percent of Camp Pendleton is at risk of being rendered off-limits to 
training due to critical habitat is simply inaccurate.
    DOD also has argued that training opportunities and expansion plans 
at Fort Irwin have been thwarted by the desert tortoise. Yet just 2 
weeks ago this official line was contradicted by the reality on the 
ground. In an article dated March 21, 2003, Fort Irwin spokesman Army 
Maj. Michael Lawhorn told the Barstow Desert Dispatch that he is 
unaware of any environmental regulations that interfere with troops' 
ability to train there. He also said there isn't any environmental law 
that hinders the expansion.
    Attached to my testimony is a factsheet outlining a series of 
additional misleading anecdotes used by DOD and the additional facts 
that must be considered before drawing any conclusions about the impact 
of the ESA on military readiness.
    These examples of misleading anecdotes highlight the need for 
Congress to look behind the reasons that are being put forward by DOD 
as the basis for weakening environmental laws. DOD uses the anecdotes 
in an attempt to demonstrate that conflicts between military readiness 
and species conservation objectives are irreconcilable. However, 
solutions to these conflicts are within reach if DOD is willing to 
invest sufficient time and energy into finding them. DOD has vast acres 
of land on which to train and vast stores of creativity and expertise 
among its land managers. With careful inventorying and planning, DOD 
can find a proper balance.
    Has DOD made the necessary effort to inventory and plan for its 
training needs? In June 2002, the General Accounting Office issued a 
report entitled ``Military Training: DOD Lacks a Comprehensive Plan to 
Manage Encroachment on Training Ranges,'' suggesting that the answer is 
no. The GAO found:

      DOD has not fully defined its training range requirements 
and lacks information on training resources available to the Services 
to meet those requirements, and that problems at individual 
installations may therefore be overstated.
      The Armed Services have never assessed the overall 
impacts of encroachment on training.
      DOD's readiness reports show high levels of training 
readiness for most units. In those few instances of when units reported 
lower training readiness, DOD officials rarely cited lack of adequate 
training ranges, areas or airspace as the cause.
      DOD officials themselves admit that population growth 
around military installations is responsible for past and present 
encroachment problems.
      The Armed Services' own readiness data do not show that 
environmental laws have significantly affected training readiness.

    Ten months after the issuance of the GAO report, DOD still has not 
produced evidence that environmental laws are at fault for any of the 
minor gaps in readiness that may exist. EPA Administrator Whitman 
confirmed this much at a recent hearing. At a February 26, 2003, Senate 
Environment and Public Works Committee hearing on EPA's budget, EPA 
Administrator Whitman stated that she was ``not aware of any particular 
area where environmental protection regulations are preventing the 
desired training.''
    To this date, DOD has not provided Congress with the most basic 
facts about the impacts of ESA critical habitat requirements on its 
readiness activities. Out of DOD's 25 million acres of training land, 
how many acres are designated critical habitat? At which installations? 
Which species? In what ways have the critical habitat designations 
limited readiness activities? What efforts did DOD make to alert FWS to 
these problems and to negotiate resolutions? Without answers to these 
most basic questions, Congress cannot fairly conclude that the ESA is 
at fault for any readiness gaps or that a sweeping ESA exemption is 
warranted.
3. DOD has Worked Successfully with the Services to Balance Readiness 
        and Species Conservation Objectives
    The third reason why enacting DOD's proposed ESA changes would be a 
mistake is because the current approach developing solutions at the 
local level, rather than relying on broad, national exemptions--has 
worked. My experience at both FWS and DOD has shown me that solutions 
developed at the local level are sometimes difficult to arrive at, but 
they are almost always more intelligent and long-lasting than one-size-
fits-all solutions developed at the national level.
    Allow me to provide a few brief examples. At the Marine Corps Base 
at Camp Lejeune in North Carolina, every colony tree of the endangered 
red-cockaded woodpecker is marked on a map, and Marines are trained to 
operate their vehicles as if those mapped locations are land mines. 
Here is the lesson that Major General David M. Mize, the Commanding 
General at Camp Lejeune, has drawn from this experience:
    ``Returning to the old myth that military training and conservation 
are mutually exclusive; this notion has been repeatedly and 
demonstrably debunked. In the overwhelming majority of cases, with a 
good plan along with common sense and flexibility, military training 
and the conservation and recovery of endangered species can very 
successfully coexist.''
    ``Military installations in the southeast are contributing to red-
cockaded woodpecker recovery while sustaining our primary mission of 
national military readiness.''
    ``I can say with confidence that the efforts of our natural 
resource managers and the training community have produced an 
environment in which endangered species management and military 
training are no longer considered mutually exclusive, but are 
compatible.''
    These sentiments, which I share, were relayed by Major General Mize 
just 8 weeks ago at a National Defense University symposium sponsored 
by the U.S. Army Forces Command (FORSCOM) and others. At that 
symposium, representatives of Camp Lejeune Marine Corps Base, Eglin Air 
Force Base, Fort Bragg Army Base, Fort Stewart Army Base, Camp Blanding 
Training Center in Florida, the U.S. Army Environmental Center, and 
other Defense facilities--some of the most heavily utilized training 
bases in the country--heralded the success that Defense Department 
installations have had in furthering endangered species conservation 
while maintaining military readiness.
    On the Mokapu Peninsula of Marine Corps Base Hawaii, the growth of 
non-native plants, which can decrease the reproductive success of 
endangered waterbirds, is controlled through annual ``mud-ops'' 
maneuvers by Marine Corps Assault Vehicles. Just before the onset of 
nesting season, these 26 ton vehicles are deployed in plow-like 
maneuvers that break the thick mats of invasive plants, improving 
nesting and feeding opportunities while also giving drivers valuable 
practice in unusual terrain.
    Attached to my testimony is a factsheet with additional examples of 
successful efforts by DOD installations across the country to balance 
military readiness and species conservation.
    These success stories highlight a major trend that I believe has 
been missed by those promoting the DOD exemptions. In recent years, DOD 
has increasingly recognized the importance of sustainability because it 
meets several importance objectives at once. Sustainable use of the 
land helps DOD achieve not only compliance with environmental laws, but 
also long-term military readiness and cost-effectiveness goals. For 
example, by operating tanks so that they avoid the threatened desert 
tortoise, DOD prevents erosion, a problem that is extremely difficult 
and costly to remedy. If DOD abandons its commitment to environmental 
compliance, it will incur greater long-term costs for environmental 
remediation and will sacrifice land health and military readiness.
    A November 2002 policy guidance issued by the then-Secretary of the 
Navy to the Chief of Naval Operations and the Commandant of the Marine 
Corps suggests that certain members of DOD's leadership are indeed 
willing to abandon the sustainability goal. The policy guidance on its 
face seems fairly innocuous it purports to centralize at the Pentagon 
all decisionmaking on proposed critical habitat designations and other 
ESA actions. However, the Navy Secretary's cover memo makes clear that 
its purpose is also to discourage any negotiation of solutions to 
species conservation challenges by Marines or Navy personnel in the 
field, lest these locally developed ``win-win'' solutions undercut 
DOD's arguments on Capitol Hill that the ESA is broken. According to 
paragraph 2 of the cover memo, ``concessions . . . could run counter to 
the legislative relief that we are continuing to pursue with 
Congress.''
    Similar sentiments were voiced by Deputy Defense Secretary Paul 
Wolfowitz in his March 7, 2003, memo to the chiefs of the Army, Navy 
and Air Force. Deputy Secretary Wolfowitz argued that ``it is time for 
us to give greater consideration to requesting exemptions'' from 
environmental laws and pleaded for specific examples of instances in 
which environmental regulations hamper training. The implicit message 
is that efforts at the installation level to resolve conflicts between 
conservation and training objectives should be suspended, and that such 
conflicts instead should be reported to the Pentagon, where 
environmental protections will simply be overridden.
    These messages to military personnel in the field mark a very 
unfortunate abdication of DOD's leadership in wildlife conservation. To 
maintain its leadership role as steward of this nation's endangered 
wildlife, DOD must encourage its personnel to continue developing 
innovative solutions and not thwart those efforts.
Conclusion
    With the Iraq war ongoing and terrorism threats always present, no 
one can dismiss the importance of military readiness. However, there is 
no justification for the Defense Department to retreat from its 
environmental stewardship commitments at home. As base commanders have 
been telling us, protecting endangered species and other important 
natural resources is compatible with maintaining military readiness.
    Surveys show that the American people today want environmental 
protection from the Federal Government, including the Defense 
Department, as much as ever. According to an April 2002 Zogby Poll, 85 
percent of registered voters believe that the Defense Department should 
be required to follow America's environmental and public health laws 
and not be exempt. Americans believe that no one, including the Defense 
Department, should be above the law.
    Congress should reject the proposed environmental exemptions in the 
Administration's defense authorization package. This proposal, along 
with the parallel proposal in the Administration's fiscal year 2004 
budget request that Congress cut spending on DOD's environmental 
programs by $400 million, are a step in the wrong direction.
    DOD has a long and impressive record of balancing readiness 
activities with wildlife conservation. The high quality of wildlife 
habitats at many DOD installations provides tangible evidence of DOD's 
positive contribution to the nation's conservation goals. At a time 
when environmental challenges are growing, DOD should be challenged to 
move forward with this successful model and not to sacrifice any of the 
progress that has been made.
                                 ______
                                 
                               Attachment
            DOD Has a Long History of Working Successfully with the ESA
    The Department of Defense (DOD) is again pursuing exemptions from 
key environmental laws. A legislative package with these exemptions has 
been sent to Congress, which will soon be casting crucial votes. If 
this legislation is approved it will greatly reduce DOD's obligations 
under the Endangered Species Act (ESA), Marine Mammal Protection Act, 
Clean Air Act, Superfund, and Resource Conservation and Recovery Act.
    Last year, the Administration requested exemptions from six 
environmental statutes, and Congress settled on an exemption from the 
Migratory Bird Treaty Act.
DOD and ESA Success Stories
    DOD has argued, and intends to do so again, that the ESA is too 
inflexible and that a sweeping new exemption is needed. However, this 
argument is not based on having encountered insurmountable hurdles 
complying with the ESA. In fact, the General Accounting Office has 
concluded, based on a review of DOD's own readiness reports, that the 
military is at a high state of readiness and that DOD has never 
demonstrated that the ESA has significantly impeded training.
    Nonetheless, without any public debate, DOD sought to bypass the 
ESA's careful balancing between military training needs and 
conservation of imperiled wildlife. The facts show that this would be 
an unfortunate and unnecessary departure from DOD's long history of 
working successfully with the ESA.
Marine Corps Air Station Miramar, California
    In an effort to protect the station's ten endangered species, the 
U.S. Fish and Wildlife Service (FWS) initially proposed to designate 65 
percent of Miramar's land area as critical habitat. FWS later exercised 
its discretion under existing law and withdrew this proposed 
designation after the Marine Corps established a framework to protect 
and preserve the station's endangered species, guaranteed the plan 
would be implemented, and defined measures to judge the plan's 
effectiveness. According to DOD, in so doing, ``the plan made military 
readiness activities and endangered species protection mutually 
compatible.''
Mokapu Peninsula of Marine Corps Base Hawaii
    Among the 50 species of birds that call this island home are all 
four of Hawaii's endangered waterbirds: the Hawaiian stilt, Hawaiian 
coot, Hawaiian gallinule, and the Hawaiian duck. Management activities 
at the base have more than doubled the number of stilts on the base 
over the past 20 years. The growth of non-native plants, which can 
decrease the waterbirds' reproductive success, is controlled through 
annual ``mud-ops'' maneuvers by Marine Corps Assault Vehicles (AAVs). 
Just before the onset of nesting season, these 26 ton vehicles are 
deliberately deployed in supervised plow-like maneuvers that break the 
thick mats of invasive plants, improving nesting and feeding 
opportunities while also giving drivers valuable practice in unusual 
terrain.
Air Force in Alaska
    In 1995 FWS found that the Air Force's low-level, high speed 
training flights in Alaska had the potential to disturb the three North 
American subspecies of endangered peregrine falcons. After the Air 
Force consulted with FWS under the ESA, the Air Force agreed to 
protective ``no-fly'' zones around dense peregrine nesting locations. 
The peregrine falcon has since recovered to the point that it has been 
removed from the ESA's list of threatened and endangered species, and 
FWS has declared that ``the knowledge gained by Air Force research 
projects was important in the recovery process.''
Marine Corps Base Camp Lejeune, North Carolina
    Initially 10 percent of this base was restricted in order to 
protect the red-cockaded woodpecker, but now only 1 percent of the base 
is restricted for that purpose, as the number of breeding pairs of the 
bird have doubled in the past 10 years. The Marines attribute the 
success of its conservation efforts to its partnership with FWS, the 
State of North Carolina, academic experts, and environmental advocacy 
groups.
Fort Bragg, North Carolina
    Fort Bragg contains important habitat for the red-cockaded 
woodpecker, enabling the base to proudly claim that ``this single 
species has survived because of the havens provided by our 
installations' training land and ranges.'' Working with the Nature 
Conservancy and others, DOD has created buffers around its 
installations and training areas, lessening restrictions on training 
while enabling the endangered red-cockaded woodpecker to move closer to 
recovery.
    DOD has successfully worked with the ESA to achieve its military 
readiness objectives while conserving imperiled species. Please ask 
your lawmakers to oppose any proposals that exempt DOD from the ESA and 
other environmental laws!
    For more information, contact Corry Westbrook, Legislative 
Representative, National Wildlife Federation, at 202-797-6840, 
westbrooknwf.org.
                                 ______
                                 
 FWS Has Repeatedly Granted DOD's Requests That Its Lands Be Excluded 
                 From ESA Critical Habitat Designations
    In pushing for exemptions from Endangered Species Act (ESA) 
critical habitat protections, the Department of Defense (DOD) has 
argued that the ESA lacks sufficient flexibility to exclude DOD lands 
from critical habitat designations where appropriate. However, as shown 
below, where the U.S. Fish and Wildlife Service (FWS) has found that 
DOD's lands are needed for training and listed species are being 
adequately conserved, it has repeatedly acceded to DOD's requests that 
those be excluded from critical habitat designations. See also NWF 
Factsheet: FWS's Case-by-Case Review of INRMPs is Essential for 
Conserving Imperiled Wildlife. DOD's effort to replace this flexible, 
case-by-case review with a sweeping ESA exemption is completely 
unwarranted.
    The following FWS statements from the Federal Register show that, 
time and again, FWS has used the flexibility of the existing ESA to 
exclude large swaths of valuable habitat on DOD lands from critical 
habitat designations:
1. Lompoc yerba santa and Gaviota tarplant (plants) at Vandenberg Air 
        Force Base, 67 FR 67968-01 (November 7, 2002):
    ``Although measures to provide for the conservation of Eriodictyon 
apitatum or Deinandra increscens ssp. villosa are not currently 
included in the draft INRMP, the Air,> Force has committed to 
incorporate into their INRMP, and implement, specific measures that 
will address the conservation of these species and their habitat where 
they occur on Vandenberg. Based on this commitment, we have, therefore, 
determined that lands on Vandenberg Air Force Base should be excluded 
under subsection 4(b)(2) of the Act because the benefits of exclusion 
outweigh the benefits inclusion and will not cause the extinction of 
the species. For this reason, we are excluding from the designated 
critical habitat those proposed units and portions of proposed units 
that were located on Vandenberg.''
2. I Chlorogalum purpureum (a plant) at Camp Roberts and Ft. Hunter 
        Liggett, 67 FR 65414-01 (October 24, 2002):
    ``We have revised the proposal to eliminate lands at Camp Roberts 
under section 3(5)(A), and lands at Ft. Hunter Liggett under section 
4(b)(2). It is our policy that if any areas containing the primary 
constituent elements are currently being managed to address the 
conservation needs of Chlorogalum purpureum management or protection, 
these areas would not meet the definition of critical habitat in 
section 3(5)(A)(i) of the Act and would not be included in this final 
rule. We have determined that this is the case at Camp Roberts due to 
their having an approved Integrated Natural Resources Management Plan 
which addresses the conservation needs of Chlorogalum purpureum.
    We have also determined that the direct and indirect costs to the 
Army, including reduction in military readiness, from designation of 
critical habitat at Ft. Hunter Liggett are such that the benefits of 
excluding those lands exceed the benefits of their inclusion.
3. Monterey Spineflower at Naval Postgraduate School, 67 FR 37498-01 
        (May 29, 2002)
    ``In their comments on the proposed rule, the DON requested that 
the lands of the School be excluded from the Marina unit of critical 
habitat because of the protections and management actions provided for 
Chorizanthe pungens var. pungens as part of the INRMP. We evaluated the 
INRMP and found that it meets the three criteria described above. We 
excluded these lands from critical habitat under the section 3(5)(A) 
definition.''
4. Riverside Fairy Shrimp at Miromar AFB and Camp Pendleton 67 FR 
        59884-01 (September 24, 2002)
    [NOTE: This designation was vacated by a Federal court on October 
30, 2002, after an industry group claimed that FWS's economic impact 
analysis was not sufficently broad. See Building Ind. Legal Defense 
Found. V. Norton, 231 F. Supp. 100 (D.D.C. 2002). The court required 
FWS to complete a new designation by July 2004.]
    ``To date, Miramar is the only DOD installation that has completed 
a final INRMP that provides, for sufficient conservation management, 
and protection for vernal pools and the., Riverside fairy shrimp. We 
reviewed this plan and determined that it addresses and meets the three 
criteria. Therefore, lands on Miramar (proposed Critical Habitat Unit 
5) do not meet the definition of critical habitat, and they have not 
been included in this final designation of critical habitat for the 
Riverside fairy shrimp.''
    ``To date, as the INRMP for Camp Pendleton has not yet been 
completed and approved, these lands meet the definition of critical 
habitat. Nevertheless, we have determined that it is appropriate to 
exclude training areas on Camp Pendleton from this critical habitat 
designation under section 4(b)(2). The main benefit of this exclusion 
is ensuring that the mission-critical military training activities can 
continue without interruption at Camp Pendleton while the INRMP is 
being completed.''
    ``The proposed critical habitat designation included about 2,295 ha 
(5,670 ac), or about 10 percent of the base. This exclusion does not 
apply to the vernal pool complexes in the Wire Mountain Housing Area, 
within the Cockleburr Sensitive Area, and lands leased to the State of 
California and included within San Onofre State Park. Because these 
lands are used minimally, if at all, by the Marines for training, the 
312 ha (770 ac) of lands proposed on Camp Pendleton and within the San 
Onofre State Park are retained in the final designation.''
California Red-legged Frog 66 FR 14626-01 (March 13, 2001)
    ``During the comment period for the proposed determination of 
critical habitat for the California red-legged frog, we received and 
subsequently evaluated a final INRMP for Vandenberg Air Force Base 
found in Units 23, 24, and 26. This plan addresses the California red-
legged frog as a covered species and provides conservation measures for 
the species. Based on this plan and Vandenberg's section 7 consultation 
history, we have determined that the conservation measures afforded the 
subspecies are sufficient to assure its conservation on the base. 
Therefore, we have excluded Vandenberg Air Force Base from the final 
determination of critical habitat for the red-legged frog resulting in 
a reduction of approximately 38,445 ha (95,000 ac) from these units.''
    ``We also received and evaluated a request from Camp Parks Reserve 
Forces Training Area found in Unit 15 and Camp San Luis Obispo found in 
Unit 21, for exclusion from final designation because of the impact a 
final designation would have on their training critical mission. The 
proposed designation included about 90 percent of both installations. 
After evaluation of the benefits of inclusion and the benefits of 
exclusion, we have excluded Camp Parks resulting in a reduction of 
approximately 857 ha (2,118 ac) in Unit 15 and CSLO resulting in a 
reduction of approximately 2,272 ha (5,613 ac) in Unit 21 from this 
final designation.''
Arroyo Toad 66 FR 9414-01 (February 7, 2001)
    [NOTE: This designation was vacated by a Federal court on October 
30, 2002, after an industry group claimed that the economic impact 
analysis was not sufficiently broad. See Building Ind. Legal Defense 
Found. V. Norton, 231 F. Supp. 100 (D.D.C. 2002). The court required 
FWS to complete a new designation by July 2004.]
    ``Arroyo toad numbers on Camp Pendleton are significant and are 
inclusive of the few remaining populations along the coastal plain.''
    ``[W]e have determined that it is appropriate to exclude Camp 
Pendleton from this critical habitat designation under section 4(b)(2). 
The main benefit of this exclusion is ensuring that the mission-
critical military training activities can continue without interruption 
at ,Camp Pendleton while the INRMP and programmatic uplands 
consultation are being completed. This exclusion does not include that 
part of Camp Pendleton leased to the State of California and included 
within San Onofre State Park (including San Mateo Park) and those 
agricultural leased lands adjacent to San Mateo Creek. Because these 
lands are used minimally, if at all, by the Marines for training, the 
lands proposed within the state park and agricultural leases are 
retained in the final designation.''
    ``Fort Hunter Liggett seemed most concerned in their comments about 
the inclusion of what they termed ``marginal and unsuitable'' habitat 
and the resulting consultation requirements, and the perceived need to 
reinitiate consultation on certain actions. We believe we have 
adequately addressed much of their concern by eliminating the 
northernmost reach of the river that was proposed, and by the reduction 
in grid cell size to eliminate such marginal habitat (see Changes from 
the Proposal section).''
    ``A primary concern expressed by Fallbrook Naval Weapons Station is 
that the designation of critical habitat within certain developed areas 
will impose additional restrictions on their operations. However, 
existing structures, ordnance storage magazines and bunkers, and other 
developed areas do not provide the primary constituent elements 
necessary for the arroyo toad and thus by definition are not critical 
habitat.''
Mexican Spotted Owl 66 FR 8530-01 (February 1, 2001)
    [NOTE: In Center for Biological Diversity v. Norton, 240 F. Supp. 
2d 1090 (D. Ariz. 2003), the court overturned the critical habitat 
designation for the Mexican spotted owl on the ground that that U.S. 
Forest Service lands could not legitimately be excluded from a critical 
habitat designation on the basis of the ``special management'' language 
in ESA Sec. 3(5). However, the court upheld FWS's exclusion of tribal 
lands as within FWS's broad authority under ESA Sec. 4(b)(2). Thus, the 
ruling does not remove FWS's flexibility to exclude DOD lands from a 
critical habitat designation on the basis of a satisfactory INRMP and 
the benefits to military training that the exclusion would provide. See 
NWF Factsheet: DOD's Argument for an ESA Exemption is Based Upon a 
Misstatement of the Law.]
    ``Fort Carson, Colorado, provided information during the comment 
period that indicated the Mexican spotted owl is not known to nest on 
the military installation and the species is a rare winter visitor. 
Protected and restricted habitat is also not known to exist on Fort 
Carson. Further, Fort Carson is updating the Integrated Natural 
Resources Management Plan (INRMP) to include specific guidelines and 
protection measures that have been recently identified through informal 
consultation with us. The INRMP will include measures to provide year-
round containment and suppression of wildland fire and the 
establishment of a protective buffer zone around each roost tree. The 
target date of completion for this revision is early 2001. Fort Carson, 
through consultation with us, indicated they will ensure that the INRMP 
will meet the criteria for exclusion. They also provided additional 
information and support to indicate that no protected or restricted 
habitat exists on the base, and asked to be excluded from the final 
designation. We agree that Fort Carson should be excluded from the 
final designation.''
Coastal California Gnatcatcher 65 FR 63680-01 (October 24, 2000)
    ``To date, Marine Corps Air Base Miramar is the only DOD 
installation that has completed a final INRMP that provides for 
sufficient conservation management and protection for the gnatcatcher. 
We have reviewed this plan and have determined that it addresses and 
meets the three criteria. Therefore, lands on Marine Corps Air Base 
Miramar do not meet the definition of critical habitat and have been 
excluded from the final designation of critical habitat for the 
gnatcatcher.''
California Red-legged Frog 66 FR 14626-01 (March 13, 2001)
    ``During the comment period for the proposed determination of 
critical habitat for the California red-legged frog, we received and 
subsequently evaluated a final INRMP for Vandenberg Air Force Base 
found in Units 23, 24, and 26. This plan addresses the California red-
legged frog as a covered species and provides conservation measures for 
the species. Based on this plan and Vandenberg's section 7 consultation 
history, we have determined that the conservation measures afforded the 
subspecies are sufficient to assure its conservation on the base. 
Therefore, we have excluded Vandenberg Air Force Base from the final 
determination of critical habitat for the red-legged frog resulting in 
a reduction of approximately 38,445 ha (95,000 ac) from these units.''
    ``We also received and evaluated a request from Camp Parks Reserve 
Forces Training Area found in Unit 15 and Camp San Luis Obispo found in 
Unit 21, for exclusion from final designation because of the impact a 
final designation would have on their training critical mission. The 
proposed designation included about 90 percent of both installations. 
After evaluation of the benefits of inclusion and the benefits of 
exclusion, we have excluded Camp Parks resulting in a reduction of 
approximately 857 ha (2,118 ac) in Unit 15 and CSLO resulting in a 
reduction of approximately 2,272 ha (5,613 ac) in Unit 21 from this 
final designation.''
Arroyo Toad 66 FR 9414-01 (February 7, 2001)
    [NOTE: This designation was vacated by a Federal court on October 
30, 2002, after an industry group claimed that the economic impact 
analysis was not sufficiently broad. See Building Ind. Legal Defense 
Found. V. Norton, 231 F. Supp. 100 (D.D.C. 2002). The court required 
FWS to complete a new designation by July 2004.)
    ``Arroyo toad numbers on Camp Pendleton are significant and are 
inclusive of the few remaining populations along the coastal plain.''
    ``[W]e have determined that it is appropriate to exclude Camp 
Pendleton from this critical habitat designation under section 4(b)(2). 
The main benefit of this exclusion is ensuring that the mission-
critical military training activities can continue without interruption 
at Camp Pendleton while the INRMP and programmatic uplands consultation 
are being completed. This exclusion does not include that part of Camp 
Pendleton leased to the State of California and included within San 
Onofre State Park (including San Mateo Park) and those agricultural 
leased lands adjacent to San Mateo Creek. Because these lands are used 
minimally, if at all, by the Marines for training, the lands proposed 
within the state park and agricultural leases are retained in the final 
designation.''
    ``Fort Hunter Liggett seemed most concerned in their comments about 
the inclusion of what they termed ``marginal and unsuitable'' habitat 
and the resulting consultation requirements, and the perceived need to 
reinitiate consultation on certain actions. We
    In contrast to Marine Corps Air Base Miramar, other military 
installations within the area proposed as critical habitat for the 
gnatcatcher have not yet completed their INRMPs. Most notably, Marine 
Corps Base Camp Pendleton (Camp Pendleton) represents one of the 
largest contiguous blocks of coastal sage scrub in southern California. 
The base provides habitat for numerous core populations of gnatcatchers 
and essential habitat linkages between core populations in northern San 
Diego County to those in southern Orange and southwestern Riverside 
Counties. In light of these factors, we proposed 20,613 ha (50,935 ac) 
of the approximately 50,000 ha (125,000 acre) base as critical habitat 
for the gnatcatcher.''
    ``During both public comment periods for the proposal, the Marines 
concluded that the designation, if it-were to become final, would 
cripple their ability to conduct their critical training activities. 
They asserted that ``this overwhelming proposal [if made final] will 
have a long term, cumulative and detrimental impact on [their] 
mission.'' The proposed critical habitat encompassed more than 40 
percent of the Base. Out of the 46 training or joint use areas on Camp 
Pendleton, the proposal included all of 22 and portions of 9 such 
areas, which were concentrated on the coastal portion of the Base. In 
addition, the proposal included three of four principal landing beaches 
and the key inland training areas adjacent to these beaches where 
Marines train in amphibious warfare, large and small tactics, and 
warfighting skills. Camp Pendleton is the Marine Corps' only amphibious 
training base on the Pacific coast.''
    ``Today, as the INRMP has not yet been completed and approved, 
these lands on the base meet the definition of critical habitat. 
Nevertheless, we have determined that it is appropriate to exclude Camp 
Pendleton from this critical habitat designation under section 4(b)(2). 
The main benefit of this exclusion is ensuring that the mission-
critical military training activities can continue without interruption 
at Camp Pendleton while the INRMP is being completed.''
    ``In particular, the Marines implement a set of ``programmatic 
instructions'' that create 500-foot buffers around each 1998 
gnatcatcher observation. These avoided areas, after eliminating 
overlapping buffers and off-Base areas, total about 3,343 ha (8,260 
ac), or a little less than 7 percent of the entire area of Camp 
Pendleton. Although avoiding these areas constrains Marine training 
activities to some degree, the effectiveness of their overall mission 
is not compromised. The proposed critical habitat designation, however, 
included about 20,613 ha (50,935 ac), or, to reiterate, about 40 
percent of the Base. If this area is included in the final designation 
of critical habitat for the gnatcatcher, the Marines would be compelled 
by their interpretation of the Endangered Species Act to significantly 
curtail necessary training within the area designated as critical 
habitat, to the detriment of mission-critical training capability, 
until the consultation is concluded, up to a year from now. As a 
result, this increase in the extent of avoided areas would greatly 
restrict use of the Base, severely limiting the Base's utility as a 
Marine training site.''
    ``This exclusion does not include that part of Camp Pendleton 
leased to the State of California and included within San Onofre State 
Park (including San Mateo Park).
    Because these lands are used minimally, if at all, by the Marines 
for training, the 1,195 ha (2,960 ac) of lands proposed within the 
state park are retained in the final designation. These lands do not 
include lands leased for agricultural purposes.''
San Diego Fairy Shrimp 65 FR 63438-01 (October 23, 2000)
    ``We evaluated Department of Defense (DOD) Integrated Natural 
Resource Management Plans (INRMPs) for DOD land that was within the 
proposed critical habitat to determine whether any INRMPs met the 
special management criteria. To date, Marine Corps Air Base, Miramar is 
the only DOD installation that has completed a final INRMP that 
provides for sufficient conservation management and protection for the 
San Diego fairy shrimp. We reviewed this plan and determined that it 
addresses and meets the three criteria. Therefore, lands on Marine 
Corps Air Base, Miramar no longer meet the definition of critical 
habitat, and they have been excluded from the final designation of 
critical habitat for the San Diego fairy shrimp.''
    ``In contrast to Marine Corps Air Base Miramar, Marine Corps Base 
Camp Pendleton (Camp Pendleton) has not yet completed their INRMP. Camp 
Pendleton has several substantial vernal pool complexes that support 
the San Diego fairy shrimp. In light of these factors, we proposed 
4,902 ha (12,114 ac) of the approximately 50,000 ha (125,000 acre), 
base as critical habitat for the San Diego fairy shrimp. Out of the 46 
training or joint use areas on Camp Pendleton, the proposal included 
all of five such areas, which were concentrated on the coastal portion 
of the Base. In addition, the proposal included habitat found elsewhere 
on the base.''
    ``Today, as the INRMP has not yet been completed and approved, 
these lands on the base meet the definition of critical habitat. 
Nevertheless, we have determined that it is appropriate to exclude Camp 
Pendleton from this critical habitat designation under section 4(b)(2). 
The main benefit of this exclusion is ensuring that the mission-
critical military training activities can continue without interruption 
at Camp Pendleton while the INRMP is being completed.''
    For more information, contact Corry Westbrook, NWF Legislative 
Representative, at 202-797-6840, westbrooknwf.org, or John Kostyack NWF 
Senior Counsel, at 202 797-6879, kostyacknwf.org 
.
                                 ______
                                 
    FWS's Case-by-Case Review of INRMPs Is Essential for Conserving 
                           Imperiled Wildlife
reject defense department's proposed exemption from this accountability
    The Defense Department has requested an exemption from the 
Endangered Species Act (ESA) on the ground that the Integrated Natural 
Resources Management Plans (INRMPs) it prepares under the Sikes Act are 
an adequate substitute for ESA critical habitat protection.
    However, the U.S Fish and Wildlife Service (FWS) has reviewed a 
number of INRMPs in the past few years for the very purpose of 
determining their adequacy as substitutes for critical habitat 
protection. As shown in the table below, on repeated occasions, FWS has 
determined that INRMPs were inadequate to conserve listed species.

                    U.S. Fish and Wildlife Service's Findings Regarding Inadequacy of INRMPs
----------------------------------------------------------------------------------------------------------------
                                            Endangered and Threatened Species
           DOD Installation                      Habitat at Installation                   FWS Findings
----------------------------------------------------------------------------------------------------------------
Pacific Missile Range, Navy's Barking   Plants: Panicum niihauense (no common     ``Management at the PRMF
 Sands Facility, Kauai.                  name).                                    Barking Sands Facility lands
                                                                                   currently consists of
                                                                                   restricting human access and
                                                                                   off-road vehicles from the
                                                                                   dune ecosystems and mowing
                                                                                   landscaped areas. These
                                                                                   actions alone are not
                                                                                   sufficient to address the
                                                                                   factors inhibiting the long-
                                                                                   term conservation of Panicum
                                                                                   niihauense. Therefore, we
                                                                                   cannot at this time find that
                                                                                   management, on these lands
                                                                                   under Federal jurisdiction as
                                                                                   sufficient to find that they
                                                                                   no longer meet the definition
                                                                                   of critical habitat.'' 68 FR
                                                                                   9116 (February 27, 2003).
Santa Cruz Armory, California.........  Plants: Santa Cruz tarplant (Holocarpha   ``We conclude that [the
                                         macradenia).                              California Army National
                                                                                   Guard] does not yet have an
                                                                                   INRMP for the Santa Cruz
                                                                                   Armory that sufficiently
                                                                                   addresses the criteria above.
                                                                                   These lands do not warrant
                                                                                   exclusion from critical
                                                                                   habitat designation because
                                                                                   the proposed management plan
                                                                                   has not been approved and
                                                                                   does not contain assurances
                                                                                   that the management actions
                                                                                   it describes will be
                                                                                   implemented or effective.''
                                                                                   67 FR 63968 (October 16,
                                                                                   2002).
Navy's Barking Sands and Makaha Ridge   Plants: Panicum niihauense (no common     ``Management at the Barking
 Facility, Kaua' i.                      name).                                    Sands and Makaha Ridge
                                        Sesbania tomentosa ('ohai)..............   Facility lands currently
                                        Wilkesia hobdyi (iliau).................   consists of restricting human
                                                                                   access and mowing landscaped
                                                                                   areas. These actions alone
                                                                                   are not sufficient to address
                                                                                   the factors inhibiting the
                                                                                   long-term conservation of
                                                                                   [plants] Panicum niihauense
                                                                                   and Wilkesia hobdyi.
                                                                                   Therefore, we cannot at this
                                                                                   time find that management on
                                                                                   these lands under Federal
                                                                                   jurisdiction is adequate to
                                                                                   preclude a proposed
                                                                                   designation of critical
                                                                                   habitat.'' 67 Fed. Reg. 3940,
                                                                                   3998 (Jan. 8, 2002).
Army's Dillingham Military              Plants: Cyperus trachysanthos (pu'uka'a)  ``We believe this land is
 Reservation, Oahu.                     Hibiscus brackenridgei ssp. mokuleianus    needed for the recovery of
                                         (ma'o hau hele).                          one or more of these four
                                        Nototrichium humile (kulu'i)............   [plant] species. Currently,
                                        Schiedea kealiae (no common name).......   the Army is not implementing
                                                                                   any management actions for
                                                                                   these listed species at the
                                                                                   Dillingham Military
                                                                                   Reservation (HINHP Data base
                                                                                   2001; Army 2001b). In
                                                                                   addition, proposed management
                                                                                   actions identified for [the
                                                                                   plant] Schiedea kealiae in
                                                                                   the 2001 INRMP are `subject
                                                                                   to available funding'. We do
                                                                                   not believe that appropriate
                                                                                   conservation management
                                                                                   strategies have been
                                                                                   adequately funded or
                                                                                   effectively implemented.
                                                                                   Therefore, we cannot at this
                                                                                   time find that management of
                                                                                   this land under Federal
                                                                                   jurisdiction is adequate to
                                                                                   preclude a proposed
                                                                                   designation of critical
                                                                                   habitat.'' 67 Fed. Reg.
                                                                                   37108, 37161 (May 28, 2002).
Army's Kahuku Training Area, Oahu.....  Plants: Adenophorus periens (no common    ``Proposed management actions
                                         name).                                    identified for listed plant
                                        Chamaesyce rockii (`akoko)..............   species in the 2001 INRMP are
                                        Cyanea grimesiana ssp. grimesianna         `subject to available
                                         (haha).                                   funding'. We do not believe
                                        Cyanea koolauensis (haha)...............   that there are sufficient
                                        Cyanea longiflora (haha)................   assurances that appropriate
                                        Eugenia koolauensis (nioi)..............   conservation management
                                        Gardenia mannii (nanu)..................   strategies will be adequately
                                        Hesperomannia arborescens (no common       funded or effectively
                                         name).                                    implemented. Therefore, we
                                        Phyllostegia hirsuta (no common name)...   cannot at this time find that
                                        Tetraplasandra gymnocarpa (`ohe `ohe)...   management of this land under
                                                                                   Federal jurisdiction is
                                                                                   adequate to preclude a
                                                                                   proposed designation of
                                                                                   critical habitat.'' 67 Fed.
                                                                                   Reg. 37108, 37161-37162 (May
                                                                                   28, 2002).
Army's Kawadoa Training Area, Oahu....  Plants: Adenophorus periens (no common    ``Proposed management actions
                                         name).                                    identified for listed plant
                                        Chamaesyce rockii (`akoko)..............   species in the 2001 INRMP are
                                        Cyanea acuminata (haha).................   `subject to available
                                        Cyanea crispy (haha)....................   funding'. We do not believe
                                        Cyanea grimesiana ssp. grimesiana (haha)   that the current management
                                        Cyanea humboldtiana (haha)..............   measures are sufficient to
                                        Cyanea koolauensis (haha)...............   address the primary threats
                                        Cyanea long jora (haha).................   to these species, nor do we
                                        Cyanea st. johnii (haha)................   believe that there are
                                        Cytrandra dentata (ha iwale)............   appropriate assurances that
                                        Cyrtandra virid flora (ha`iwale)........   appropriate conservation
                                        Delissea subcordata (no common name)....   management strategies will be
                                        Eugenia koolauensis (nioi)..............   adequately funded or
                                        Gardenia mannii (nanu)..................   effectively implemented.
                                        Hesperomannia arborescens (no common       Therefore, we cannot at this
                                         name).                                    time find that management of
                                        Labordia cyrtandrae (kamakahala)........   this land under Federal
                                        Lobelia oahuensis (no common name)......   jurisdiction is adequate to
                                        Melicope lydgatei (alani)...............   preclude a proposed
                                        Myrsine juddii (kolea)..................   designation of critical
                                        Phlegmariurus nutans (wawae`iole).......   habitat.'' 67 Fed. Reg.
                                        Phyllostegia hirsuta (no common name)...   37108, 37192 (May 28, 2002).
                                        Phyllostegia parv fora (no common name).
                                        Plantago princeps (ale).................
                                        Platanthera holochila (no common name)..
                                        Pteris,lidgatei (no common, name).......
                                        Sanicula purpurea (no common name)......
                                        Tetraplasandra gymnocarpa (`ohe`ohe)....
                                        Viola oahuensis (no common name)........
Army's Makua Military Reservation,      Plants: Alectryon macrococcus (mahoe)...  ``While we believe that some
 O`ahu.                                 Alsinidendron obovatum (no common name).   of these [plant] species
                                        Bonamia menziesii (no common name)......   specific actions may control
                                        Cenchrus agrimonioides (kamanomano).....   threats in the short term, we
                                        Chamaesyce celastroides var. keanana       do not believe that these
                                         (`akoko).                                 measures are sufficient to
                                        Ctenitis squamigera (pauoa).............   address the primary threats
                                        Cyanea superba (haha)...................   to all of the species
                                        Cyrtandra dentata (ha`iwale)............   reported from Makua Military
                                        Delissea subcordata (no common name)....   Reservation at this time . .
                                        Diellia falcata (no common name)........   . However, we cannot at this
                                        Dubautia herbstobatae (na`ena`e)........   time find that management of
                                        Euphorbia haeleeleana (`akoko)..........   this land under Federal
                                        Flueggea neowawraea (mehamehame)........   jurisdiction is adequate to
                                        Hedyotis degeneri (no common name)......   preclude a proposed
                                        Hedyotis parvula (no common name).......   designation of critical
                                        Hibiscus brackenridgei (ma`o hau hele)..   habitat.'' 67 Fed. Reg.
                                        Lepidium arbuscula (`anaunau)...........   37108, 37162 37163 (May 28,
                                        Lipochaeta tenuifolia (nehe)............   2002).
                                        Lobelia niihauensis (no common name)....
                                        Lobelia oahuensis (no common name)......
                                        Neraudia angulata (no common name)......
                                        Nototrichium humile (kulu`i)............
                                        Plantago princeps (ale).................
                                        Sanicula mariversa (no common name).....
                                        Schiedea hookeri (no common name).......
                                        Schiedea nuttallii (no common name).....
                                        Silene lanceolata (no common name)......
                                        Spermolepis hawaiiensis (no common name)
                                        Tetramolopium filiforme (no common name)
                                        Tetramolopium lepidotum ssp. lepidotum
                                         (no common name).
                                        Viola chamissoniana ssp. chamissoniana
                                         (`olopu; amakani).
Army's Makua Military Reservation,      Bird: Chasiempis sandwichensis ibidis     ``To date, no military
 Oahu (continued).                       (O`ahu `elepaio).                         installation on O'ahu has
                                                                                   completed a final INRMP that
                                                                                   provides sufficient
                                                                                   management and protection for
                                                                                   the elepaio.'' 66 Fed. Reg.
                                                                                   63752, 63762 (Dec. 10, 2001).
                                                                                  ``We have determined that
                                                                                   current management [at Makua
                                                                                   Military Reservation] does
                                                                                   not adequately address the
                                                                                   conservation needs of the
                                                                                   Oahu elepaio. . . .'' 66 Fed.
                                                                                   Reg, at 63768.
Army's Schofield Barracks East Range,   Plants: Chamaesyce rockii (`akoko)......  ``Proposed' management actions
 O`ahu.                                 Cyanea acuminata (haha).................   identified for listed plant
                                        Cyanea koolauensis (haha)...............   species in 2001 INRMP are
                                        Cyanea longiflora (haha)................   `subject to available
                                        Cyanea st johnii (haha).................   funding'. We do not believe
                                        Cyrtandra subumbellata (ha`iwale).......   that the current management
                                        Gardenia mannii (nanu)..................   measures are sufficient to
                                        Hesperomannia arborescens (no common       address the primary threats
                                         name).                                    to these species, nor do we
                                        Isodendrion laurifolium (aupaka)........   believe that there are
                                        Lobelia gaudichaudii ssp. koolauensis      sufficient assurances that
                                         (no common name).                         appropriate conservation
                                        Lobelia oahuensis (no common name)......   management strategies will be
                                        Phlegmariurus nutans (wawae`iole).......   adequately funded or
                                        Phyllostegia hirsuta (no common name)...   effectively implemented.
                                        Pteris lidgatei (no common name)........   Therefore, we cannot at this
                                        Sanicula pupurea (no common name).......   time find that management of
                                        Tetraplasandra gymnocarpa (`ohe`ohe)....   this land under Federal
                                        Viola oahuensis (no common name)........   jurisdiction is adequate to
                                                                                   preclude a proposed
                                                                                   designation of critical
                                                                                   habitat `` 67 Fed. Reg.
                                                                                   37108, 37163 (May 28, 2002).
Army's Schofield Barracks East Range,   Bird: Chasiempis sandwichensis ibidis     ``To date, no military
 O`ahu (continued).                      (O`ahu `elepaio).                         installation on Oahu has
                                                                                   completed a final INRMP that
                                                                                   provides sufficient
                                                                                   management and protection for
                                                                                   the elepaio.'' 66 Fed. Reg.
                                                                                   63752, 63762 (Dec. 10, 2001).
                                                                                  ``We have determined that
                                                                                   current management [at
                                                                                   Schofield Barracks] does not
                                                                                   adequately address the
                                                                                   conservation needs of the
                                                                                   Oahu elepaio. . . .'' 66 Fed.
                                                                                   Reg. at 63768.
Army's Schofield Barracks Military      Plants: Abutilon sandwicense (no common   ``Proposed management actions
 Reservation, O`ahu.                     name).                                    identified for listed plant
                                        Alectryon macrococcus (mahoe)...........   species in the 2001 INRMP are
                                        Alsinidendron trinerve (no common name).   `subject to available
                                        Cenchrus agriminioides (kamanomano).....   funding'. We do not believe
                                        Ctenitis squamigera (pauoa).............   that the current management
                                        Cyanea acuminata (haha).................   measures are sufficient to
                                        Cyanea grimesiana ssp. grimesiana (haha)   address the primary threats
                                        Cyanea grimesiana ssp. obatae (haha)....   to these species, nor do we
                                        Cyanea superba (haha)...................   believe that there are
                                        Delissea subcordata (no common name)....   sufficient assurances that
                                        Diellia falcata (no common name)........   appropriate conservation
                                        Diplazium molokaiense (no common name)..   management strategies will be
                                        Eragrostis fosbergii (no common name)...   adequately funded or
                                        Flueggea neowawraea (mehamehame)........   effectively.implemented.
                                        Gardenia mannii (nanu)..................   Therefore, we cannot at this
                                        Isodendrion longifolium (aupaka)........   time find that management of
                                        Labordia cyrtandrae (kamakahala)........   this land under Federal
                                        Lepidium arbuscula (`anaunau)...........   jurisdiction is adequate to
                                        Lipochaeta lobata var. leptophylla         preclude a proposed
                                         (nehe).                                   designation of critical
                                        Lipochaeta tenuifolid (nehe)............   habitat.'' 67 Fed. Reg.
                                        Lobelia niihauensis (no conumon name)...   37108, 37163 (May 28, 2002).
                                        Lobelia oahuensis (no common name)......
                                        Neraudia anguldta (no common name)......
                                        Nototrichium huinile (kulu`i)...........
                                        Phyllostegia hirsuta (no common name)...
                                        Phyllostegia mollis (no common name)....
                                        Plantago princeps (ale).................
                                        Schiedea hookeri (no common name).......
                                        Schiedea nuttallii (no common name).....
                                        Solanum sandwicense (popolo `aiakeakua).
                                        Stenogyne kanehoana (no common name)....
                                        Tetramolopium lepidotum ssp. lepidotum
                                         (no common name).
                                        Urera kaalae (opuhe)....................
                                        Viola chamissoniana ssp. chamissoniana.
                                         (`olopu; pamakani).
Army's Schofield Barracks Military      Bird: Chasiempis sandwichensis ibidis     ``To date, no military
 Reservation, Oahu (continued).          (O`ahu`elepaio).                          installation on O'ahu has
                                                                                   completed a final INRMP that
                                                                                   provides sufficient
                                                                                   management and protection for
                                                                                   the elepaio.'' 66 Fed. Reg.
                                                                                   63752, 63762 (Dec. 10, 2001).
                                                                                  ``[T]he threat to elepaio at
                                                                                   Schofield Barracks of
                                                                                   wildfires resulting from
                                                                                   training activities has not
                                                                                   been managed adequately.
                                                                                   Larger scale rodent control
                                                                                   and improved fire management
                                                                                   will be necessary to meet the
                                                                                   long-term conservation needs
                                                                                   of the elepaio. We have
                                                                                   determined that current
                                                                                   management does not
                                                                                   adequately address the
                                                                                   conservation needs of the
                                                                                   Oahu elepaio. . . .'' 66 Fed.
                                                                                   Reg.at 63768.
Naval Computer and Telecommunications   Plant: Marsilea villosa (`ihi`ihi)......  ``One [plant] species,
 Area Master Station Pacific Radio                                                 Marsilea villosa, occurs on
 Transmitting Facility at Lualualei,                                               land at the Naval Computer
 Oahu.                                                                             and Telecommunications Area
                                                                                   Master Station Pacific Radio
                                                                                   Transmitting Facility at
                                                                                   Lualualei and we believe this
                                                                                   land is needed for the
                                                                                   recovery of this species.
                                                                                   Some management actions to
                                                                                   protect and maintain the
                                                                                   population are included in
                                                                                   the 2001 INRMP but these
                                                                                   actions have not been
                                                                                   adequately funded or
                                                                                   effectively implemented
                                                                                   (HINHP Data base 2001; Navy
                                                                                   200la). Therefore, we cannot
                                                                                   at this time find that
                                                                                   management of this land under
                                                                                   Federal jurisdiction is
                                                                                   adequate to preclude a
                                                                                   proposed designation of
                                                                                   critical habitat.'' 67 Fed.
                                                                                   Reg. 37108, 37164 (May 28,
                                                                                   2002).
Naval Magazine Pearl Harbor Lualualei   Plants: Abutilon sandwicense (no common   ``We do not believe that these
 Branch, O`ahu.                          name).                                    measures are sufficient to
                                        Alectryon macrococcus (mahoe)...........   address the primary threats
                                        Bonamia menziesii (no common name)......   to these species on this
                                        Chamaesyce kuwaleana (`akoko)...........   land, nor do we believe that
                                        Diellia falcata (no common name)........   appropriate conservation
                                        Flueggea neowawraea (mehamehame)........   management strategies have
                                        Hedyotis parvula (no common name).......   been adequately funded or
                                        Lepidium arbuscula (`anaunau)...........   effectively implemented.
                                        Lipochaeta lobata (nehe)................   Therefore, we cannot at this
                                        Lipochaeta tenuifolia (nehe)............   time find that management of
                                        Lobelia niihauensis (no common name)....   this land under Federal
                                        Marsilea villosa (`ihi`ihi).............   jurisdiction is adequate to
                                        Melicope sanit. johnii (alani)..........   preclude a proposed
                                        Neraudia angulata (no common name)......   designation of critical
                                        Nototrichium humile (kulu'i)............   habitat.'' 67 Fed. Reg.
                                        Phyllostegia hirsuta (no common name)...   37108, 37164 (May 28, 2002).
                                        Plantago princeps (ale).................
                                        Sanicula mariversa (no common name).....
                                        Schiedea hookeri (no common name).......
                                        Tetramolopium filiforme (no common name)
                                        Tetramolopium lepidotum (no common name)
                                        Urera kaalae (opuhe)....................
                                        Viola chamissoniana ssp. chamissoniana
                                         (`olopu; pamakani).
Naval Magazine Pearl Harbor Lualualei   Bird: Chasiempis sandwichensis ibidis     ``The primary threats to the
 Branch, O`ahu.                          (Oaahu `elepaio).                         elepaio, predation by alien
                                                                                   rats and diseases carried by
                                                                                   alien mosquitoes, have not
                                                                                   been addressed on Navy lands.
                                                                                   . . . After reviewing the
                                                                                   draft INRMP for NAVMAG Pearl
                                                                                   Harbor Lualualei Branch, we
                                                                                   have determined that it does
                                                                                   not provide for adequate
                                                                                   protection or management for
                                                                                   the Oahu elepaio. The draft
                                                                                   INRMP does not include a
                                                                                   management strategy for the
                                                                                   Oahu elepaio and does not
                                                                                   provide an evaluation of
                                                                                   population distribution,
                                                                                   quality and quantity of
                                                                                   nesting habitat, threats, and
                                                                                   management needs for
                                                                                   recovery.'' 66 Fed. Reg.
                                                                                   63752, 63767 (Dec. 10, 2001).
Army's Fort Shafter, H`ahu............  Bird: Chasiempis sandwichensis ibidis     ``To date, no military
                                         (O`ahu `elepaio).                         installation on Oahu has
                                                                                   completed a final INRMP that
                                                                                   provides sufficient
                                                                                   management and protection for
                                                                                   the etepaio.'' 66 Fed. Reg.
                                                                                   63752, 63762 (Dec. 10, 2001).
Army's Pohakuloa Training Area, Island  Plants: Asplenium fragile var. insulare   ``However, current management
 of Hawaii.                              (no common name).                         is not sufficient to address
                                        Hedyotis coriacea (kio`ele).............   many of the factors
                                        Neraudia ovata (no common name).........   inhibiting the long-term
                                        Fortutaca sclerocarpa (po`e)............   conservation of any of these
                                        Silene hawaiiensis (no common name).....   ten [plant] species and thus
                                        Silene lanceolata (no common name)......   provide conservation benefits
                                        Solanum incompletum (popolo ku mai).....   to the species. In addition
                                        Spermolepis hawaiiensis (no common name)   there is no guarantee of long-
                                        Tetramolopium arenarium (no common name)   term funding for on-going or
                                        Zanthoxylum hawaiiense (a`e)............   future management actions. .
                                                                                   . . Therefore, we cannot at
                                                                                   this time find that
                                                                                   management on this land under
                                                                                   Federal jurisdiction is
                                                                                   adequate to preclude a
                                                                                   proposed designation of
                                                                                   critical habitat.'' 67 Fed.
                                                                                   Reg. 36968, 37002 (May 28,
                                                                                   2002).
----------------------------------------------------------------------------------------------------------------

                                 ______
                                 
  DOD Has Used Misleading Anecdotes to Justify its Proposal to Exempt 
           Itself from the ESA'S Critical Habitat Protections
    The Department of Defense (DOD) is again pursuing exemptions from 
key environmental laws. A legislative package with these exemptions has 
been sent to Congress, which will soon be casting crucial votes. If 
this legislation is approved it will greatly reduce DOD's obligations 
under the Endangered Species Act (ESA), Marine Mammal Protection Act, 
Clean Air Act, Superfund, and Resource Conservation and Recovery Act.
    The DOD is requesting these exemptions even though the General 
Accounting Office concluded, based on a review of DOD's own readiness 
reports, that the-military is at a high state of readiness and that DOD 
has never demonstrated that adhering to: environmental laws has 
significantly impeded training.
    What justification has DOD offered sweeping exemptions from the 
ESA? It turns out that the only evidence by DOD has consisted of highly 
misleading anecdotes.
 the esa's critical habitat protections have not significantly impeded 
                                training
    An analysis of DOD's ESA anecdotes shows that sweeping exemptions 
from the ESA, are unwarranted--DOD has been able to carry out its 
training mission while complying with the ESA. Due to successful 
negotiations, DOD frequently persuaded the U.S. Fish and Wildlife 
Service (FWS) to exclude DOD lands from critical habitat designations. 
In the rare cases where critical habitat has been designated, DOD has 
never identified an obstacle to achieving readiness. DOD has never 
found it necessary to utilize the ``national security'' exemption 
procedure provided by the ESA.
Camp Pendleton, California
    DOD ASSERTION: ``At Camp Pendleton, proposed critical habitat under 
the Endangered Species Act would cover 57 percent of the base . . . .'' 
(congressional Testimony of Raymond F. DuBois, Jr., Deputy 
Undersecretary of Defense, March 13, 2003.)
    THE REST OF THE STORY; Such proposals were rejected 2 years ago by 
the FWS in its final rules, which excluded all but 875 acres of Camp 
Pendleton's approximately 120,000 acres of training land from its final 
critical habitat designations. Camp Pendleton encompasses 125,118 
acres, roughly 5,000 acres of which are leased for various non-military 
purposes, such as California's San Onofre State Park and agricultural 
operations. FWS's critical habitat designations have been focused 
almost entirely on these non-training lands.
    The following list provides the number of acres originally proposed 
and actually designated for each of the five species with proposed 
critical habitat designations at Camp Pendleton. Some of these species 
share the same habitats, so acreage totals should not be combined to 
derive otal acres designated as critical habitat.
            San Diego Fairy Shrimp Critical Habitat:
    12,829 acres were proposed but only 40 acres were designated. The 
entire 40 acres designated are within San Onofre State Park and are not 
used for training.
            Coastal California Gnatcatcher Critical Habitat:
    50,992 acres were proposed but only 3,773 acres were designated. 
None of the 3,773 acres designated are used for training: 2,960 acres 
are within San Onofre State Park and the remainder are leased for 
agricultural purposes.
            Tidewater Goby Critical Habitat:
    731 acres were proposed but 959 acres were designated. Less than 
875 acres of designated lands are potential training lands; the 
remaining 84 acres are within San Onofre State Park. Camp Pendleton has 
the only remaining population of this endangered fish `in the region.
            Riverside Fairy Shrimp Critical Habitat:
    5,567 acres were proposed but only 770, acres were designated. All 
of the 770 acres designated are in San Onofre State Park or otherwise 
in leased areas that, according to FWS, are ``used minimally, if at 
all, by the Marines for training.'' As a result of a building industry 
lawsuit,-this designation has now been vacated and a more extensive, 
economic impact analysis is now being prepared.
            Arroyo Toad Critical Habitat:
    38,210 acres were proposed but only 2,680 acres were designated. 
According to FWS, all of these designated acres are either in San 
Onofre State Park or on agricultural leased lands that are ``used 
minimally, if at all, by the Marines for-"training.'' As a result of a 
building industry lawsuit, this designation has now been vacated and a 
more extensive economic impact analysis is being prepared. In summary, 
despite the presence of 18 threatened and endangered species on Camp 
Pendleton, less than 1 percent of the training lands on the base--not 
the reported 57 percent--is designated as critical habitat for any 
species.
    DOD ASSERTION: ``At Camp Pendleton, proposed critical habitat under 
the Endangered Species Act would cover 57 percent of the base, 
including all 17 miles of the beach that is critical to training 
operations. . . .'' (congressional Testimony of Raymond F. DuBois, Jr., 
Deputy Undersecretary of Defense, March 13, 2003. Emphasis added.)
    THE REST OF THE STORY: The biggest limitation on training is not 
critical habitat designation but the presence of Interstate 5, a 
railroad, the San Onofre Nuclear Generation Plant, and other 
topographic access limitations. The ESA only limits large unit 
amphibious landings on two to three miles, of the 17-mile beach and 
only during the five-to 6-month nesting seasons of the endangered 
Western snowy plover and California least tern.
    DOD essentially concedes that the training restrictions to protect 
the Western snowy plover and California least tern are not a 
significance to training. Camp Pendleton's successful efforts to 
protect the snowy plover were recently celebrated in DOD's ``We're 
Saving a Few Good Species'' poster campaign, with DOD declaring that 
``an elite military force can train in environmentally sensitive areas 
and protect a threatened species at the same time.'' The exemption from 
the ESA's critical habitat provisions proposed by DOD. would not even 
affect the restrictions related to the snowy plover and the least tern 
those restrictions are in place pursuant to the ESA's jeopardy and 
take. prohibitions. Neither species has designated critical habitat on 
Camp Pendleton.
    DOD ASSERTION: The proposed amendment is narrowly tailored and will 
only apply to portions of Camp Pendleton and other military bases 
needed for training.
    THE REST OF THE STORY: The amendment would apply to land owned by 
the military even if used for non-military purposes. In the case of 
Camp Pendleton, the amendment would apply to San Onofre State Park, 
which is leased to the State of California by the Marine Corps. San 
Onofre is the 10th most popular park in California and currently is 
home to several endangered and threatened species and their designated 
critical habitat. However, because the Park is ``owned'' by the 
Department, the amendment would preclude any designation of critical 
habitat on park property.
Naval Base at Coronado, California
    DOD ASSERTION: ``When Navy SEALs land on beaches at Naval Base 
Coronado during nesting season, they have to disrupt their tactical 
formation to move in narrow lanes marked by green tape, to avoid 
disturbing the nests of the Western snowy plover and California least 
tern. ``
    THE REST OF THE STORY: Of the base's 5,000-yard ocean coastline, 
the presence of these two endangered birds only restricts the use of 
one, 500-yard training lane and the restriction is only in place for 
the birds' five-to 6-month nesting season. And, as the Navy 
acknowledges, this nest-marking ``work around'' has been important to 
species recovery.
San Clemente Island, California
    DOD ASSERTION: The presence of the endangered loggerhead shrike 
shorebird has curtailed ``the use of illumination rounds or other 
potentially incendiary shells during shore bombardment exercises at San 
Clemente during the 6-month loggerhead shrike breeding season. ``
    THE REST OF THE STORY: The,loggerhead shrike first became imperiled 
on the island due to the Navy's introduction of a goat that decimated 
the bird's habitat. As a result of conservation efforts on the island, 
the shrike's population, once as low was 13 birds, now consists of 106 
birds.
    The use of live ordinance is restricted from June to October (not 
during the February June breeding season) because of the risk of fire, 
but this could be remedied by the use of inert ordinance. The sole 
reason provided by the Marine Corps for its failure to use inert 
ordinance is that its inventory of this kind of ordinance is limited.
Vieques Island Naval Range, Puerto Rico
    DOD ASSERTION: ESA protections for the endangered hawksbill and 
atherback sea turtles have restricted training at this range, including 
the: possibility--of ``halting the entire training exercise for a 
Carrier Battle Group' in the event of observing a single sea turtle. ``
    THE REST OF THE STORY As a result of formal consultation under the 
ESA, the Navy agreed to institute precautionary conservation measures. 
In response, FWS issued a no jeopardy Biological Opinion allowing 
battle group exercises to go forward without fear of delay due to the 
ESA. The Navy's conservation measures, such as the relocation of turtle 
eggs to a hatchery during amphibious landings, have resulted in the 
successful hatching of over 17,000 hawksbill and leatherback sea turtle 
eggs.
Barry M. Goldwater Air Force Range, Arizona
    DOD ASSERTION: ``In the calendar year 2000, almost 40 percent of 
the live fire missions at the Goldwater Range were canceled.''
    THE REST OF THE STORY: This base is home to the last remaining 
Sonoran pronghorn in the United States--with just 99 animals left, it 
is one of the most endangered species of large mammals in the world. 
The pronghorn's continued existence is threatened by air and ground 
maneuvers, including bombing, strafing, artillery fire and low-level 
flights. Despite this fact, DOD's proposed legislation would not 
address the situation at Goldwater, as FWS has not designated any of 
the range as critical habitat for the pronghorn out of fear that doing 
so ``could seriously limit the Air Force's ability to modify missions 
on its lands.'' In return, the Air Force is participating in a regional 
ecological study with the Department of the Interior, the Nature 
Conservancy, and the Sonoran Institute as a starting point for their 
conservation efforts.
Fort Hood, Texas
    DOD ASSERTION: ``Only about 17 percent of Fort Hood lands are 
available for training without restriction. ``
    THE REST OF THE STORY: Endangered species conservation measures are 
singled out for blame in the limitation of training exercises at Fort 
Hood, yet over 74 percent of the base's 217,600 acres are currently 
restricted in order to accommodate large-scale cattle operations. 
Conversely, less than 34 percent of Fort Hood's training land has faced 
limited restrictions because of the presence of two endangered birds, 
the black capped , vireo and the golden cheeked warbler. Even on these 
restricted lands, however, many training activities are still allowed. 
In certain ``core areas'' within the endangered birds' habitat, the use 
of chemical grenades, artillery firing and digging are limited.
    DOD has successfully worked with the ESA to achieve its military 
readiness objectives while conserving imperiled species. Please ask 
your lawmakers to oppose any proposals providing exemptions from the 
Endangered Species Act and other environmental laws!
    For more information, contact Corry Westbrook, NWF Legislative 
Representative, at 202-797-6840, westbrooknwf.org 
, or John Kostyack, NWF Senior Counsel, at 202 
, 797-6879, kostyacknwf.org
                                 ______
                                 
      DOD Has a Long History of Working Successfully with the ESA
    The Department of Defense (DOD) is again pursuing exemptions from 
key environmental laws. A legislative package with these exemptions has 
been sent to Congress, which will soon be casting crucial votes. If 
this legislation is approved it will greatly reduce DOD's obligations 
under the Endangered Species Act (ESA), Marine Mammgl Protection Act, 
Clean Air Act, Superfund, and Resource Conservation and Recovery Act.
    Last year, the Administration requested exemptions from six 
environmental statutes, and Congress settled on an exemption from the 
Migratory Bird Treaty Act.
DOD and ESA Success Stories
    DOD has argued, and intends to do so again, that the ESA is too 
inflexible and that a sweeping new exemption is needed. However, this 
argument is not based on having encountered insurmountable hurdles 
complying with the ESA. In fact, the General Accounting Office has 
concluded, based on a review of DOD's own readiness reports, that the 
military is at a high state of readiness and that DOD has never 
demonstrated that the ESA has significantly impeded training.
    Nonetheless, without any public debate, DOD sought to bypass the 
ESA's careful balancing between military training needs and 
conservation of imperiled wildlife. The facts show that this would be 
an unfortunate and unnecessary departure from DOD's long history of 
working successfully with the ESA.
Marine Corps Air Station Miramar, California
    In an effort to protect the station's ten endangered species, the 
U.S. Fish and Wildlife Service (FWS) initially proposed to designate 65 
percent of Miramar's land area as critical habitat. FWS later exercised 
its discretion under existing law and withdrew this proposed 
designation after the Marine Corps established a framework to protect 
and preserve the station's endangered species, guaranteed the plan 
would be implemented, and defined measures to judge the plan's 
effectiveness. According to DOD, in so doing, ``the plan made military 
readiness activities and endangered species protection mutually 
compatible.''
Mokapu Peninsula of Marine Corps Base Hawaii
    Among the 50 species of birds that call this island home are all 
four of Hawaii's endangered waterbirds: the Hawaiian stilt, Hawaiian 
coot, Hawaiian gallinule, and the Hawaiian duck. Management activities 
at the base have more than doubled the number of stilts on the base 
over the past 20 years. The growth of non-native plants, which can 
decrease the waterbirds' reproductive success, is controlled through 
annual ``mud-ops'' maneuvers by Marine Corps Assault Vehicles (AAVs). 
Just before the onset of nesting season, these 26 ton vehicles are 
deliberately deployed in supervised plow-like maneuvers that break the 
thick mats of invasive plants, improving nesting and feeding 
opportunities while also giving drivers valuable practice in unusual 
terrain.
Air Force in Alaska
    In 1995 FWS found that the Air Force's low-level, high speed 
training flights in Alaska had the potential to disturb the three North 
American subspecies of endangered peregrine falcons. After the Air. 
Force consulted with FWS under the ESA, the Air Force agreed to 
protective ``no-fly'' zones around dense peregrine nesting locations. 
The peregrine falcon has since recovered to the point that it has been 
removed from the ESA's list of threatened and endangered species, and 
FWS has declared that ``the knowledge gained by Air Force research 
projects was important in the recovery process.''
Marine Corps Base Camp Lejeune, North Carolina
    Initially 10 percent of this base was restricted in order to 
protect the red-cockaded woodpecker, but now only 1 percent of the base 
is restricted for that purpose,: as the number of breeding pairs of the 
bird have doubled in the past 10 years. The Marines attribute the 
success of its conservation efforts to its partnership with FWS, the 
State of North Carolina, academic experts, and environmental advocacy 
groups.
Fort Bragg, North Carolina
    Fort Bragg contains important habitat for the red-cockaded 
woodpecker, enabling the base to proudly claim that ``this single 
species has survived because of the havens provided by our 
installations' training land and ranges.'' Working with the Nature 
Conservancy and others, DOD has created buffers around its 
installations and training areas, lessening restrictions on training 
while enabling the endangered red-cockaded woodpecker to move closer to 
recovery.
    DOD has successfully worked with the ESA to achieve its military 
readiness objectives while conserving imperiled species. Please ask 
your lawmakers to oppose any proposals that exempt DOD from the ESA and 
other environmental laws!
    For more information, contact Corry Westbrook, Legislative 
Representative, National Wildlife Federation, at 202-797-6840, 
westbrooknwf org.
                                 ______
                                 
Responses of Jamie Rappaport Clark to Additional Questions from Senator 
                                Jeffords
    Question 1. The DOD proposal substitutes the completion of an 
Integrated Natural Resources Management Plan under the Sikes Act for 
the designation of critical habitat under the Endangered Species Act. 
In addition, the DOD is stating that due to a recent U.S. District 
Court decision in Arizona, the change to current law is even more 
necessary. However, in your testimony, you disagree with the DOD 
interpretation of the Court's decision. Could you elaborate on this for 
the committee?
    Response. DOD testified before the Senate Armed Services Committee 
that the current FWS approach--reviewing INRMPs on a case-by-case basis 
for their adequacy as substitutes for critical habitat--is 
satisfactory, but that it needs an ESA exemption because continuation 
of this approach is jeopardized by the ruling in Center for Biological 
Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003). This is 
inaccurate. The court ruling does not justify any concern about FWS's 
ability to continue its case-by-case approach.
    In Center for Biological Diversity, FWS excluded San Carlos Apache 
tribal lands from a critical habitat designation pursuant to ESA 
Sec. 4(b)(2) on the basis that the tribal land management plan was 
adequate and that the benefits of exclusion outweighed the benefits of 
inclusion. The Federal district court upheld the exclusion as within 
FWS's broad authority under ESA Sec. 4(b)(2). At the same time, the 
court held that lands could not legitimately be excluded from a 
critical habitat designation on the basis of the ``special management'' 
language in ESA Sec. 3(5).
    Under the court's reasoning, FWS continues to have the flexibility 
to exclude DOD lands from a critical habitat designation on the basis 
of a satisfactory INRMP and the benefits to military training that the 
exclusion would provide. The ruling simply clarifies that such 
exclusions must be carried out pursuant to ESA Sec. 4(b)(2) rather than 
ESA Sec. 3(5). Thus, DOD's assertion that the Center for Biological 
Diversity ruling prevents it from working with FWS to secure exclusions 
of DOD lands from critical habitat designations is inaccurate.

    Question 2. Do you believe that we should be substituting INRMPs 
for critical habitat designation? What does a critical habitat 
designation provide that an INRMP does not?
    Response. Whether an INRMP should be substituted for critical 
habitat designation on a DOD installation very much depends on the 
specific facts at the installation in question. At some installations, 
INRMPs do not adequately conserve imperiled species; at other 
installations, INRMPs do a good job. ESA Sec. 4(b)(2) provides the 
mechanism for determining when a substitution may be appropriate. It 
states that FWS ``may exclude any area from critical habitat if [it] 
determines that the benefits of such exclusion outweigh the benefits of 
specifying such area as part of critical habitat, unless [it] 
determines, based on the best scientific and commercial data available, 
that the failure to designate such area as critical habitat will result 
in the extinction of the species concerned.'' (Emphasis added.)
    In implementing ESA Sec. 4(b)(2) on DOD lands, FWS must evaluate 
the conservation benefits of relying on the INRMP as an alternative to 
critical habitat at the time a species is considered for critical 
habitat designation. In recent years, FWS has evaluated INRMPs by 
applying the 3-part test discussed in the next answer. This case-by-
case approach provides an essential measure of protection for 
threatened and endangered species.
    DOD's proposed approach--in which INRMPs are automatically 
substituted for critical habitat designations across-the-board--is 
unwise because it fails to acknowledge the wide disparity of conditions 
among DOD installations. Both FWS and DOD itself have recognized that 
some INRMPs have not been fully implemented as needed to conserve 
imperiled species. FWS statistics as of April 8, 2003, show that 87 (23 
percent) of the 376 military installations that are required to prepare 
INRMPs have not yet obtained FWS review and approval of INRMPs. Roughly 
30 percent of those installations do not even have an INRMP. DOD's 
Inspector General report on INRMPs dated October 1, 2002, states (at 
page 8) that DOD and FWS do not have a process for tracking 
implementation of INRMPs. In its annual report to Congress on INRMP 
implementation, DOD has cited ``total dollars spent'' as its sole 
measure of success. However, the DOD Inspector General finds (at page 
9) that this report is inadequate because it does not reveal whether 
INRMP projects have been funded or implemented.
    A critical habitat designation provides a number of benefits that 
an INRMP will not necessarily provide. For example, there is no 
guaranteed funding or enforcement mechanism to ensure that 
implementation of INRMPs takes place. In contrast, the ESA provides an 
enforcement mechanism to ensure that adverse modification of critical 
habitat is avoided. Moreover, INRMPs do not address off-base activities 
that degrade habitat values on the DOD installation. In contrast, the 
ESA requires that Federal agencies undertake a consultation with FWS 
and carry out conservation measures to address off-base activities if 
they degrade designated critical habitat on the installation.

    Question 3. The DOD witness has stated that INRMPs are a superior 
form of habitat and species protection and that the Clinton 
Administration affirmed that, as well. Because you were part of the 
Clinton Administration during the development of INRMPs, could you 
please tell us if the DOD proposal encompasses what the previous 
Administration envisioned.
    Response. The DOD proposal is radically different from what the 
previous Administration sought to accomplish with INRMPs. In the 
previous Administration, we recognized that certain INRMPs could be 
substituted for critical habitat designations only when measures were 
taken to conserve threatened and endangered species. We rejected 
substitutions of INRMPs for critical habitat designations in certain 
instances where the INRMP would not adequately conserve listed species. 
We employed a three-part test for evaluating the adequacy of these 
conservation measures: (1) A current INRMP must be complete and provide 
a conservation benefit to the species, (2) the plan must provide 
assurances that the conservation management strategies will be 
implemented, and (3) the plan must provide assurances that the 
conservation strategies will be effective (i.e., provide for periodic 
monitoring, adaptive management, and revisions as necessary).
    In contrast, the DOD proposal does not allow for FWS to reject 
substitution of INRMPs for critical habitat designations. It 
essentially mandates an across-the-board substitution of INRMPs for 
critical habitat designation regardless of the adequacy of the INRMPs' 
measures to conserve listed species. Thus, DOD's proposal would prevent 
designation of critical habitat even in cases where the INRMP 
completely fails to address the needs of listed species on a DOD 
installation.
                                 ______
                                 
Responses of Jamie Rappaport Clark to Additional Questions from Senator 
                                 Graham
    Question 1. Why is it important to protect habitat on Department of 
Defense lands?
    Response. DOD manages approximately 25 million acres of land on 
more than 425 major military installations. These lands, many of which 
are islands of green space amidst a sea of urbanization, are home to at 
least 300 federally listed species. Many species have already lost 
large portions of their original ranges due to habitat destruction and 
degradation. Without the refuge provided by these DOD installations, 
many species would slide rapidly toward extinction.

    Question 2. How do the proposed exemptions impact private property 
landowners?
    Response. The primary reason why species are listed under the ESA 
is habitat loss. For most species, the ESA's protection and recovery 
goals can be achieved only by taking regulatory and other measures to 
secure most of the remaining habitat. FWS has some flexibility to 
authorize habitat loss, but this flexibility is reduced every time that 
a species habitat base is further eroded. If Congress were to remove 
DOD's obligation to protect critical habitat as proposed by DOD, FWS 
would have less flexibility to authorize habitat-disturbing activities 
by private landowners. In order words, DOD's proposal would shift the 
burden of species protection from the public to the private sector.

    Question 3. Based on your experience at the Fish and Wildlife 
Service, what is your impression of the impact of the fiscal year 2004 
Budget Request reduction for environmental programs on the ability of 
the Department of Defense to reconcile encroachment and training 
problems.
    Response. Adequate funding of environmental programs is essential 
to DOD's success in reconciling environmental compliance with 
encroachment and training. The Administration's proposed funding cuts, 
if accepted by Congress, would jeopardize DOD's ability to carry out a 
wide array of conservation activities, including acquiring buffer lands 
between training areas and civilian populations, cleaning up 
contaminated areas, developing and implementing INRMPs, and devising 
and implementing ``work-arounds'' to protect endangered species from 
the impacts of specific training exercises.
                               __________
  Statement of Ingrid Lindemann, Councilmember, Aurora, Colorado, on 
                behalf of the National League of Cities
    Mr. Chairman, members of the committee. I am Ingrid Lindemann, 
Councilmember from Aurora, Colorado and Advisory Council representative 
to the National League of Cities' Energy, Environment and Natural 
Resources Committee. I have also spent most of my adult life as a 
military spouse. I am here today to testify on behalf of NLC and the 
18,000 cities and towns across America we represent on the Defense 
Department's proposed changes to environmental laws. The concerns of 
the nation's cities and towns are most especially relevant to the 
proposed exemptions from the Resource Conservation and Recovery Act 
(RCRA), Superfund (CERCLA) and the Clean Air Act.
    I want to make clear at the outset, that the municipal elected 
officials who comprise the National League of Cities support effective 
testing and training of the men and women who serve in our Armed Forces 
to ensure they are the best-equipped and best-prepared in the world. 
But we do not believe it is necessary or appropriate to accomplish--
this goal at the expense of our non-military citizens.
    NLC's National Municipal Policy calls on Federal facilities to 
comply with Federal and state environment, health and safety laws and 
to be subject to the enforcement provisions of such statutes. The 
ramifications of a blanket exemption for military facilities and 
activities from such laws will be serious and untenable at the local 
government level. First, we believe there is significant potential for 
adverse public health effects in cities with respect to air, drinking 
water, and management of hazardous waste. Second, there is substantial 
potential for serious negative economic effects on local communities,
Potential for Significant Negative Health Effects
    The Clean Air Act imposes health-based air quality standards. 
Creating a fiction--as we believe the DoD proposal does--that an area 
is in compliance with the National Ambient Air Quality Standards when 
it is not--is unacceptable. While there may be no legal requirement on 
either the state or local government to seek offsets to the air 
pollution caused by military activities, the community will have an air 
quality problem which, in reality, has health consequences for the 
people who live there. We are also concerned that a fictitious 
attainment designation, may even exacerbate the air quality problem by 
allowing non-military facilities and/or activities to use the 
military's pollution as cover for relaxing or ignoring what might 
otherwise be required of them.
    Exemptions from the Resource Conservation and Recovery Act are 
equally problematical, in part because of their impact on the 
appropriate disposal and/or clean-up of hazardous waste, but equally 
importantly, because of the impact, or potential impact, on sources of 
drinking water which in many parts of the country are already 
diminishing and/or scarce. It is estimated that there are 16 million 
acres of transferred ranges around the country, which are potentially 
contaminated by unexploded ordnance. Contamination, and subsequent 
closure, of sources of drinking water by military ordnance constituents 
such as perchlorate, RDX and TNT have already occurred in Maryland and 
Massachusetts--under current law. What will happen in these 
municipalities if the Department of Defense is exempted from the 
relevant environmental statutes? While finding alternative sources of 
drinking water in the water-rich eastern
    United States may be eminently feasible, those of us in the water-
limited west have major legitimate concerns about our ability to 
identify alternative safe and affordable sources of drinking water. We 
can ill-afford the kind of contamination we have seen at the Aberdeen 
(Maryland) Proving Ground or Massachusetts Military Reservation. We 
believe the citizens in municipalities affected by such contamination 
should not have their health compromised because of an exempted defense 
installation, nor should they be required to bear the burden of cleanup 
costs or the costs of finding alternative sources of drinking water.
Negative Economic Impacts on Local Communities
    Exemption of military facilities from hazardous waste clean-up 
standards would be a major impediment to redevelopment of closed 
facilities. Of the 165 Federal facilities currently on the National 
Priorities List, it is our understanding that 129 are or were military 
facilities. Many of these facilities are on prime real estate, in or 
near cities or towns. Among these are sites that are decommissioned or 
in the process of being decommissioned. Until they are restored, they 
are unusable and an economic drain on the communities in which they are 
located. If Congress opts to exempt these facilities from CERCLA 
remediation requirements, they will never be viable opportunities for 
reuse and economic growth in the communities that hosted them since 
Federal law prohibits deeding the property before the site is 
environmentally clean or before effective environmental remediation is 
in place. Hazardous materials remaining on the properties will continue 
to pose a threat to the health and safety of near-by citizens and 
preclude any effective opportunity for redevelopment and economic 
sustainability in the surrounding community.
    The closure of a military facility has a huge economic impact in 
the area and without the ability to redevelop and reuse the site, it 
can leave the host community in a permanent economic morass.
    Exclusion of military facilities and contractors from the 
requirements of RCRA and CERCLA will negate the positive economic 
impact of hosting a military installation. No community would welcome 
even the short-term economic benefit of having a military facility 
knowing that the military has carte blanche to contaminate and pollute 
and no responsibility--now, or in the future for mitigating, 
remediating or even controlling such activities.
    We also believe the amendments proposed by the Department of 
Defense to the Federal environmental statutes in question are 
unnecessary. As Assistant Secretary of Defense Paul Wolfowitz indicated 
in a March 7, 2003 memorandum to the Secretaries of the Army, Navy and 
Air Force, ``In the vast majority of cases, we have demonstrated that 
we are able both to comply with environmental requirements and to 
conduct necessary military training and testing.'' Exemptions are 
broadly available--and have been granted--when the president determines 
such exemptions to be in the ``paramount interest of the United 
States.''
    Furthermore, in recent testimony before this committee, EPA 
Administrator Christine Todd Whitman said she was unaware of any 
military training program that was held up because of environmental 
statutes.
    To the best of our knowledge, the Defense Department has provided 
no examples where environmental requirements have impeded its 
activities. There appears to be no demonstrable problem with 
environmental laws adversely affecting military training and testing 
activities and if there is, the statutes provide adequate and prompt 
relief. If the issue is that the process for obtaining exemptions is 
cumbersome--and there appears to be no evidence that this is the case 
either--then the appropriate response would be to amend or adjust the 
process. We concur with the March 19 statement of the Attorneys General 
before the House Armed Service Committee that a case-by-case approach 
to resolving any future potential conflicts between readiness and the 
requirements of RCRA, CERCLA and the Clean Air Act is preferable to 
sweeping statutory exemptions because the case-by-case approach 
provides accountability.
    For municipalities the critical issues are protection of public 
health and the economic impact of contaminated properties in our 
communities. While supportive of our military, the need for adequate 
and appropriate training and testing, and the legitimate concerns about 
national security, we do not believe unfettered authority to pollute 
our nation's cities and adversely affect the health of our citizens is 
the appropriate way to accomplish these objectives.
    Thank you for the opportunity to present the views of the National 
League of Cities.
                                 ______
                                 
  Responses of Ingrid Lindemann to Additional Questions from Senator 
                                 Inhofe
    Question 1. For the record and the audience, though I know Senator 
Allard knows some of this answer, would you mind going into your 
experience regarding environmental policy?
    Response. I have served on the National League of Cities' (NLC) 
Energy, Environment and Natural Resources Steering Committee (EENR) 
since 1990. I was vice-chair of the committee in 1995 and chaired the 
committee in 1996. I am now the NLC Advisory Council representative to 
the EENR committee. The mission of this committee is to develop NLC's 
National Municipal Policy regarding issues of energy, the national 
environment, and the use of our natural resources. NLC's National 
Municipal Policy forms the basis of NLC's efforts to influence 
congressional legislation. Through the years members of this committee 
(myself included) have been instrumental in the passage and/or 
reauthorization of the Clean Air Act, Endangered Species Act, Marine 
Mammal Protection Act, Solid Waste Disposal Act, Comprehensive 
Environmental Response, Compensations and Liability Act (CERCLA or 
Superfund), Clean Water Act, Safe Drinking Water Act, etc. In order to 
accomplish this, several times each year our committee met with, and 
was briefed by, representatives of the affected Federal agency(ies) to 
ensure our thorough understanding of the issues and ramifications of 
proposed actions.
    On the home front, I served on the Regional Air Quality Council 
(RAQC), which shepherded the Denver metropolitan area through the 
elimination of our ``brown cloud'' and redesignation of the area from 
non-attainment of the National Ambient Air Quality Standards (NAAQS) to 
attainment. Many other environmental issues have required my attention 
and therefore necessitated my delving into existing environmental 
legislation. I regularly deal with issues surrounding two closed 
military installations (Lowry AFB and Fitzsimmons Army Hospital), a 
landfill with Superfund designation, and a former Air Force bombing 
range with remaining munitions (some even affecting our drinking water 
supply). In addition, the siting of new drinking water reservoirs, 
cleaning streets--whether through sweeping and creating PM10 
particles or the runoff of melting snow--and many other municipal tasks 
require a thorough knowledge and understanding of environmental policy. 
In addition, I actively participated in the Aspen Institute Series on 
the Environment where senior government officials and corporate CEOs 
attempted to find methods of preserving the environment without 
bankrupting the Nation.
    In short, Senator, I believe I am well qualified to testify before 
this committee on this issue and it's potential impact on the citizens 
of the United States.

    Question 2. I want to assure you, Ms. Lindemann, that as a former 
mayor of Tulsa, I certainly have the interests of the cities in mind. 
Sometimes, it can be out of the regular routine for those involved in 
city government to interact with Federal agencies.
    How much time have you personally spent analyzing the actual 
legislative language and its relationship to other environmental laws?
    Response. As you can see in my answer to the previous question, I 
have spent considerable time over the last 13 years dealing with 
Federal legislation, some of it assisted by my staff, but most of it on 
my own or in discussion with other municipal officials. Moreover, in 
recent weeks I have spent many hours analyzing the proposed exemptions 
and assessing their impact on the environmental quality of life in 
communities adjacent to military installations. It is on that 
cumulative effort that my remarks are based.

    Question 3. How much time have you personally spent talking to the 
Department of Interior, the Environmental Protection Agency, or the 
Department of Defense on these issues?
    Response. My personal interaction with the Department of the 
Interior has been minimal but many hours have been spent interacting 
with representatives of the Environmental Protection Agency (EPA) and 
the Department of Defense (DOD). Through my participation in the Aspen 
Institute Series on the Environment I was at the table with EPA 
representatives from the national and regional levels. My community and 
I have expended considerable time and money to interact with DOD on 
various issues including environmental remediation of formerly used 
defense sites (FUDS). Moreover, as the spouse of a military member for 
more than a quarter of a century, I recognize the importance of 
training on the efficiency of our military and the safety of our 
military personnel. With that in mind, consider that I bring a 
perspective and belief that with little additional effort, military 
training can be accomplished without sacrificing the environment in 
which we all live.
                                 ______
                                 
  Responses of Ingrid Lindemann to Additional Questions from Senator 
                                 Boxer
    Question. The military has made a point to say that relief from our 
toxic waste laws would apply only to waste on military sites. Yet we 
know that this waste has a history of migrating to civilian areas, or 
of getting buried and appearing later in children's playgrounds as 
recently happened in the D.C. area. Do you believe that so-called 
onsite waste would prove a health threat offsite? And are you concerned 
about the health of military personnel who live on those military 
sites? Please explain.
    Response. Senator, my husband served our nation for more than 27 
years. We raised three children on and near Air Force installations. 
The last base we lived on was Lowry Air Force Base in Colorado (now 
closed) which is currently attempting to clean a Tri-Chloroethelyne 
plume which originates on the base and has migrated under the homes in 
neighborhoods north of the base. Of course I am concerned about the 
health of those persons living and working on the installations and in 
the surrounding areas. Recently asbestos containing materials (ACM) was 
found buried in an area of Lowry which had been a trailer park for 
military personnel--how many of their children may have been exposed to 
that asbestos because, at that time, the military was not concerned 
about such things? I fully recognize that the Federal Government will 
clean these sites, but I also recognize that these sites are part of 
our communities and that pollution--whether it be in the air, the 
water, or the land--does not respect political boundaries.
                               __________
  Statement of Bonner Cohen, Ph.D., Senior Fellow, Lexington Institute
    Good morning. My name is Bonner Cohen. I am a senior fellow at the 
Lexington Institute, a non-profit, non-partisan, public policy research 
organization located in Arlington, Virginia. I want to thank Chairman 
Inhofe and the other members of this committee for the opportunity to 
address a subject bearing directly on our nation's security. As a 
senior member of the Senate Armed Services Committee, and as chairman 
of this committee, Chairman Inhofe is uniquely qualified to pass 
judgment on the issue before us today.
    And that issue is a deadly serious one. In recent years, a host of 
environmental statutes designed to do such things as protect endangered 
species and safeguard marine mammals has been applied to military 
installations and activities where they come in direct conflict with 
the proper training of soldiers for the deadly business of battle. 
Everyone in this room knows that the military has a unique mission, one 
that requires the highest state of readiness so as to prevent the 
needless sacrifice of young lives. The Department of Defense has come 
to Capitol Hill with a package of requests, because it has a problem 
that needs to be addressed. Failure to do so in a timely and sensible 
fashion will put the lives of those in uniform at an unnecessary risk.
    This need not be the case. By making a few narrowly focused, but 
vitally important, clarifications to some of our environmental 
statutes, we can continue to provide for environmental progress, 
without jeopardizing military readiness. Let me briefly address two 
areas where, through the application of common sense, we can safeguard 
national security and provide for environmental stewardship.
    Marine Mammal Protection Act (MMPA): The Marine Mammal Protection 
Act's definition of ``harassment'' has been a source of confusion since 
it was included in the 1994 amendments to the statute. The statute 
defines ``harassment'' in terms of ``annoyance'' or the ``potential to 
disturb,'' vague standards which have been applied inconsistently and 
are difficult to interpret. Both the Clinton and the Bush 
Administration have sought to refine this definition. But efforts by 
the National Marine Fisheries Service to solve the problem through a 
regulatory interpretation of ``harassment'' proved unworkable and would 
have opened the door to substantial litigation. In 2001, the Navy, the 
National Marine Fisheries Service (NMFS), and the US Fish & Wildlife 
Service (FWS) developed a definition of ``harassment'' which all three 
agencies could accept. In line with a recommendation put forward by the 
National Research Council, it clarifies that ``harassment'' as applied 
to military readiness activities to mean death, injury, and other 
biologically significant effects, including disruption of migration, 
feeding, breeding, or nursing.
    Until the law is amended to clarify the definition of 
``harassment,'' the Navy and the NMFS are subject to lawsuits over 
application of that term. Indeed, several groups have already announced 
their intention to challenge the deployment of the Navy's Low Frequency 
Active Sonar, a key defense against quite diesel submarines launched by 
rogue states, and for which the Navy has an immediate and critical 
need.
    Worldwide, all activities undertaken by the Defense Department 
account for fewer than 10 deaths or injuries to marine mammals 
annually, as compared with 4,800 deaths annually resulting from 
commercial fishing. By giving a science based definition to 
``harassment, we can ensure protection of marine mammals while allowing 
the Armed Forces sufficient flexibility to training and other 
operations essential to national security.
    Endangered Species Act (ESA): The Department of Defense manages 25 
million acres on more than 425 military installations in the United 
States, providing sanctuary to some 300 species listed as threatened or 
endangered. More often than not, it is good stewardship of land, be it 
in the public or private sector, that attracts threatened or endangered 
species. This has created problems for the military which must train 
troops and test weapons in realistic conditions on bases that harbor 
endangered species. Applying the ESA's provision pertaining to 
``critical habitat'' to military installations, as some litigants are 
demanding, would undermine readiness activities in bases all over the 
country, including Fort Hood, Texas, Camp Pendleton, California, and 
Fort Polk, Louisiana--just to name a few.
    The courts have held that critical habitat is intended for species 
recovery. Hence, the designation of critical habitat is a bar to any 
land use that diminishes the value of that land for species recovery. 
Rather than military lands being used for military purposes, once 
critical habitat is designated, such lands must be used first for 
species recovery. The most sensible way to deal with this issue is 
through a legal instrument that already exists. Instead of critical 
habitat designation, endangered species on military reservations should 
continue to be protected through Integrated Natural Resource Management 
Plans (INRMPs), which are required under the Sikes Act and are 
developed in close cooperation with the Department of Interior and 
state wildlife agencies. This approach has been endorsed by both the 
Clinton and the Bush Administrations. The widespread presence of 
threatened and endangered species on military bases attests to the 
effectiveness of INRMPs. There will always be problems, but they are 
best dealt with through the holistic approach provided by INRMPs rather 
than through the cumbersome species-by-species analysis required by the 
designation of critical habitat.
    As General John M. Keane, Vice Chief of Staff, United States Army, 
has testified before Congress, the armed forces of this country are 
facing a ``train wreck'' in military readiness unless the Department of 
Defense is granted the relief it has requested. As written, the 
Endangered Species Act and other environmental statutes are an open 
invitation to never-ending waves of lawsuits by activists groups more 
interested in promoting their agenda-than in saving lives.
    In closing, I would like to pose two questions that go directly to 
the heart of the readiness issue: If soldiers cannot be trained in 
realistic conditions m areas designated for that purpose, then where is 
that training supposed to take place? If weapon systems cannot be 
tested in realistic conditions in areas designated for that purpose, 
then where is that testing supposed to take place?
    Thank you very much.
                               __________
 Statement of Edwin F. Lowry, Director, California Department of Toxic 
                           Substances Control
    I am Edwin F. Lowry, Director of the California Department of Toxic 
Substances Control. My Department's charge is to protect public health 
and the environment in California from the adverse effects associated 
with exposure to hazardous wastes. In accomplishing this mission, we 
regulate hazardous waste management and oversee hazardous site cleanups 
throughout the State of California.
    I appreciate the opportunity to offer my views concerning 
amendments proposed by the Department of Defense (DoD) to the Resource 
Conservation and Recovery Act (RCRA) and to the Comprehensive 
Environmental Response, Compensation and Liability Act (CERCLA) with 
regard to the Readiness and Range Preservation Initiative. This 
statement represents the views of the Department of Toxic Substances 
Control related to our statutory responsibility to oversee the 
generation, transportation, treatment, storage, disposal, and cleanup 
of toxic substances in California.
    Before I begin to outline our concerns with the proposed amending 
language for RCRA and CERCLA, I wish to make three contextual points:

    1. I want to assure you of our strong and continuing support for 
ensuring the readiness of the United States armed forces. Further, we 
fully appreciate that combat training and equipment testing is 
essential to making our armed forces the strongest military force on 
the globe.
    2. California has more experience with environmental issues at 
military facilities than does any other State. My Department has been 
and continues to be involved with environmental cleanup at 29 closed or 
closing installations, more than twice the number as the next most 
affected State. We work with 107 other open military installations both 
on matters having to do with hazardous waste management and with site 
cleanup. Further, California is home to 1,090 formerly used defense 
sites, at least one quarter of which will require cleanup to restore 
the land to productive use. It is clear, then, that we bring to the 
discussion a great deal of practical experience with respect to 
environmental issues at military properties.
    3. I am proud to report to you that my Department has established 
what I consider to be an exemplary record of collaboration with the DoD 
and with each of the military services. This productive and cooperative 
relationship manifests itself most obviously in the many situations in 
which we have exercised considerable flexibility in our regulatory 
oversight to accommodate the operational needs of specific 
installations. I have provided you with a handful of examples.

    Having reviewed the proposed Readiness and Range Preservation 
Initiative language, my concerns focus on five areas, each of which I 
will expand upon briefly in a moment:

    1. As a practical matter, this proposal could allow the military to 
designate any location as an operational range.
    2. The proposal, as worded, could exempt non-military entities, 
such as defense contractors, from having to comply with current 
environmental regulations.
    3. The proposal could limit our ability to adequately regulate or 
cleanup closed training ranges.
    4. The proposal could limit our ability to restore formerly used 
defense sites to productive use.
    5. The proposal could allow significant unnecessary contamination 
of California's valuable groundwater resources.

    To repeat a previous comment, while I strongly believe that 
providing adequate training and testing opportunities is imperative, I 
believe with equal conviction that doing so does not have to be at the 
expense of public health and natural resources in California.
    National security involves many elements, including protecting our 
environment for generations to come and restoring the land and water 
that has been adversely affected by the release of hazardous 
substances. In my estimation, this proposal sacrifices the security of 
California's and the nation's environment.
    Let me now further describe the five concerns I noted.
    First, the proposed amendments could jeopardize public health and 
safety by allowing DoD to avoid important environmental safeguards even 
when there is no immediate effect on military readiness. This is 
because the military could designate an location as an operational 
range, whether or not it had any plans to use it for testing or 
training. While Section 2019(a)(1) of the proposal would modify the 
RCRA definition of ``solid waste'' to include ``explosives, unexploded 
ordnance, munitions, munitions fragments, or constituents thereof' that 
are deposited on an ``operational range'' and are removed for treatment 
or disposal, it would exempt all wastes that are left on an 
``operational range,'' whether or not the range is still actually used 
for munitions testing or training.
    The proposal also would severely curtail California's ability to 
regulate the practice of using open burning or open detonations to 
``treat,'' i.e., destroy explosives and unexploded ordnance. Given the 
known environmental impacts of this practice, which includes the 
release of metal fragments and toxic propellant residues, and the yet 
unknown environmental impacts, we find the proposal to be very 
troubling.
    Second, the proposal is written broadly enough that it could apply 
anywhere that explosives or other covered materials are handled, even 
non-military facilities. Section 2019(a)(2) would exclude from the 
definition of ``solid waste'' any ``explosives, unexploded ordnance, 
munitions, munitions fragments, or constituents thereof' that are used 
in military training, research and development or testing, or deposited 
on an operational range.'' In other words, not only would it apply to 
military ranges, but it could also exempt defense contractors from the 
requirements of RCRA. Defense contractors handle a number of hazardous 
substances that are constituents of munitions or their delivery 
systems, such as perchlorate.
    Perchlorate contamination from defense contractor facilities is a 
pervasive problem in groundwater in California and also in the Colorado 
River. As we see more and more water purveyors forced to shut down 
their municipal wells, I can say with confidence that perchlorate 
contamination threatens the drinking water supplies of millions of 
Californians. Obviously, we can ill-afford to exempt from regulatory 
oversight defense contractors which might exacerbate this troubling 
situation.
    Third, contrary to representations by DoD, the proposal has not 
been drafted to limit its effect to operational ranges. The language at 
the end of Section 2019(a)(2) states: ``Nothing in subparagraphs 
(2)(A), (B), (C), (D), or (E) hereof affects the legal requirements 
applicable to explosives, unexploded ordnance, munitions, munitions 
fragments, or constituents thereof that have been deposited on an 
operational range once the range ceases to be an operational range.'' 
As written, this language would only apply to Section 2019(a)(2) and 
not to Section 2019(a)(1). Thus, this language would not affect 
materials left on an operational range, and these materials would still 
be excluded from the definition of ``solid waste'' by Section 
2019(a)(1), even after the range ceased to be operational. The proposal 
would also narrow our authority to use CERCLA to ensure cleanups at 
military bases. Section 2019(b) would exclude from the CERCLA 
definition of ``release'' any ``explosives, unexploded ordnance, 
munitions, munitions fragments, or constituents thereof'' that are 
deposited and expected to remain on an ``operational range.'' As stated 
above, the military could designate any location as an ``operational 
range,'' including an inactive range that had not been used for that 
purpose for decades and might not ever again be used as a range. 
Moreover, the proposal would also limit our cleanup authority at closed 
ranges, because materials deposited on a range when it was open could 
still be excluded from the definition of ``release'' even after it was 
closed. For obvious reasons associated with potential future land uses, 
this element of the proposal is completely at odds with the protection 
of public health and the environment.
    Fourth, the circuitous exclusion described above could limit 
California's authority to ensure cleanups at formerly used defense 
sites. Currently, there are 1,090 such sites in California, of which at 
least 200 are likely to be contaminated with explosives and ordnance. 
These sites will pose obvious risks to public safety if they are not 
restored to safe conditions.
    Fifth, the proposal would exclude from the definition of ``solid 
waste'' and the definition of ``release'' constituents of munitions 
(including perchlorate) in groundwater below a range as long as they 
had not migrated off range. Once contaminated groundwater migrates off 
range it can be far more difficult to contain, posing much higher risks 
and costs. As I noted previously, California's pervasive perchlorate 
contamination is causing the shutdown of public drinking water wells 
and other serious impacts at present. We object to any proposal that 
would allow a known problem to be uncontrolled until such time as an 
artificial boundary is crossed.
    I have two additional, non-technical concerns. First, the section-
by-section analysis prepared by DoD for this proposal claims, as the 
basis for this initiative, that:
    In recent years . . . novel interpretations and extensions of 
environmental laws and regulations, along with such factors as 
population growth and economic development, have significantly 
restricted the military's access to and use of military lands and test 
and training ranges, and limited its ability to engage in live-fire 
testing and training.
    As the Director of California's Department of Toxic Substances 
Control, do not agree with this conclusion. Far from significantly 
restricting the use of test and training ranges, I am not aware of any 
instances in California in which any hazardous waste management or 
cleanup requirement has impeded, limited or infringed on the military's 
ability to conduct missioncritical operations, including training or 
testing activities. In fact, nationally, the Washington Post recently 
quoted EPA Administrator Christine Todd Whitman as saying, ``I don't 
believe that there is a training mission anywhere in the country that 
is being held up or not taking place because of environmental 
protection regulation.''
    Contrary to the DoD statement, my Department has consistently 
worked with DoD and the military services to resolve peripheral issues 
resulting from range use. For example, open burning of excess 
propellants and open detonation of munitions left over from live fire 
exercises may be managed under federally delegated State hazardous 
waste management authorization in order to ensure that releases are 
properly controlled. These kinds of activities have no effect on the 
conduct of the range firing itself. Nevertheless, we have provided base 
managers with the necessary flexibility to carry out these activities. 
We routinely approve variances to allow military facilities to 
accumulate wastes beyond the normal time limits, and we issue emergency 
permits to allow the open burning of munitions that cannot safely be 
removed to the permitted treatment area.
    For site cleanups on operating military bases, we have worked with 
base managers to position monitoring devices and schedule the 
collection of environmental samples in a manner that will avoid any 
conflict with ongoing military base operations. These are just a few of 
the many ways that we have worked cooperatively with the military to 
resolve issues arising from the implementation of environmental laws. 
The attached document provides other examples. If the very premise of 
DoD's proposal is that California or any State has adversely affected 
the military's ability to maintain the highest state of readiness, I 
assert that the premise is flawed and, therefore, the proposal as a 
whole is unnecessary. In fact, our substantial record of cooperation 
with the military demonstrates that there is no need for the proposed 
RCRA and CERCLA amendments.
    Finally, assuming the worst about other States' hazardous waste 
management and cleanup practices, to which I am hard-pressed to give an 
example, even if there were a situation in which RCRA or CERCLA 
interfered with essential live-fire testing or training, these statutes 
still provide extraordinary Presidential authority to suspend their 
application so that essential training activity could be continued. I 
am not suggesting use of this authority should become routine, nor that 
it be used lightly. Like all extraordinary powers, they must be used 
with respect and circumspection. But the fact remains that the 
authority is available. Congress has already provided remedies for 
extraordinary circumstances, and if they are insufficient, a much 
stronger justification needs to be put forth.
    To conclude, I am concerned that DoD's proposal could lead to an 
open-ended inclusion of environmentally damaging activities under the 
umbrella of ``readiness.'' As a result, not only might legitimate 
training and testing activities lead to avoidable releases of 
contamination, but other marginally related activities might also cause 
avoidable releases of hazardous substances. The military, as 
responsible party, and State and Federal regulators would then have to 
revisit these releases in the future as much larger and more expensive 
problems requiring cleanup.
    I want to close by reiterating my strong desire to assist DoD and 
the military services in more practical ways. The Department of Toxic 
Substances Control will continue to work with the military to make 
effective use of their active range resources, and to improve the 
likelihood that those ranges will continue to be sustainable into the 
indefinite future. We believe we have an obligation to actively assist 
our armed forces in improving and maintaining the high level of 
preparedness required by the times. Their well being and readiness are 
very important to all Californians, and we will work actively with 
their representatives to find ways to make range operations safe and 
workable. At the same time, we are obligated to protect California from 
environmental injury from all sources. I firmly believe that national 
security includes environmental protection and that there are better 
approaches to ensure that military security and environmental security 
complement, rather than counteract one another.

                               __________
  Statement of Colonel Addison D. Davis, IV, Garrison Commander, Fort 
                         Bragg, North Carolina
    Mr. Chairman and distinguished members of the committee, thank you 
for the opportunity to present this testimony regarding environmental 
encroachment issues at Fort Bragg, North Carolina.
    Fort Bragg is situated in the Sandhills of North Carolina, 10 miles 
northwest of downtown Fayetteville in the south central portion of the 
State. Fort Bragg occupies 161,000 acres (or 251 square miles), 
stretching into six counties. Included within this area are Camp 
Mackall (an auxiliary training complex), 7 major drop zones, 4 impact 
areas, 84 ranges, 16 live fire maneuver areas, and 2 Army airfields. 
Approximately 75 percent of our acreage includes ranges, deployment and 
training areas, with the remaining 25 percent dedicated to those areas 
where people live, work and play. Fort Bragg is a major city, providing 
approximately 28 million square feet of office buildings, 11 shopping 
centers, 28 restaurants, 19 miles of railroad lines, a major medical 
center, 9 schools, 11 churches, 183 recreational facilities, and 
approximately 5,000 homes housing over 12,000 family members. We are a 
significant economic presence in North Carolina, contributing an 
estimated $4.8 billion annually to local communities. In the next 30 
years, the North Carolina Office of State Planning projects the 
population in the six counties surrounding Fort Bragg will grow by an 
additional 269,000 people, much of it within one mile of the Fort Bragg 
boundary.
    By population, Fort Bragg is the largest Army installation in the 
world, providing a home to almost 10 percent of the Army's active 
component forces. Like many thriving organizations and communities, the 
success of Fort Bragg is directly linked to the quality, dedication, 
and professionalism of its people. Approximately 45,000 military and 
10,000 civilian personnel work at Fort Bragg.
    ``Home of the Airborne and Special Operations Forces,'' Fort 
Bragg's strategic response forces serve every Unified Command Combatant 
Commander and are postured for no-notice worldwide deployment by air, 
sea, and land; to fight on arrival and win. We maintain the Army's 
premier power projection platform, capable of launching the Army's 
first strike capability in 18 hours or less. In addition to the rapid 
deployment force capability, Fort Bragg maintains the capability to 
assemble and deploy a Joint Task Force Headquarters, deploy special 
operations forces, and receive, train, and deploy crucial mobilizing 
Reserve Component forces. Units located on Fort Bragg include the XVIII 
Airborne Corps, Joint Special Operations Command, and the U.S. Army 
Special Operations Command.
     Neighboring Pope Air Force Base's operational capabilities provide 
the necessary airfield facilities to simultaneously airlift divisional 
and non-divisional forces, Special Operations forces, and Joint Task 
Force assets during deployments. Simmons Army Airfield gives Fort Bragg 
the additional capability to prepare, upload, and deploy crucial Army 
aviation elements in support of our mission.

                       ENCROACHMENTS ON TRAINING

    I would like to emphasize that we are trained, equipped, and ready 
to execute our wartime contingency missions. We demonstrate our 
readiness on a daily basis in worldwide deployments. The key to this is 
tough realistic training. Troops perform in combat to the standard they 
have been trained in peacetime. In order to ensure this, training must 
replicate as close as possible the conditions (rigors, stress, and 
demands) of combat. This means training conducted at night, under live 
fire conditions, as part of a combined arms team.
    Within our 161,000 acres, approximately 112,000 acres are used as 
maneuver training land; 35,000 acres are devoted to live fire and 
impact areas; and 14,000 acres are allocated to garrison cantonment or 
restricted areas (buildings, roads, motor pools, etc.). In addition to 
providing training to units assigned to Fort Bragg, we also provide 
training to the Marine Corps, Air Force, Army Reserve, National Guard, 
and Reserve Officer Training Corps units. During fiscal year 2002, Fort 
Bragg conducted 1,075,776 man-days of training, which included 8853 
Live Fire exercises (the keystone of our training philosophy), in 
addition to 1505 Airborne operations and 157,676 aviation training 
missions.
    Fort Bragg recognizes its responsibility to protect the environment 
and its natural resources. This is not a duty based solely on legal 
compulsion; this duty is very practical. Environmental stewardship is a 
necessity to preserve our land, which is, in turn, essential to our 
ability to train soldiers. This is the only training land we have, and 
we must protect it; however, there has to be balance in the way we go 
about environmental management. Fort Bragg's goal is to strike a 
reasonable balance between mission accomplishment and conservation. 
This has been, and continues to be, a very difficult challenge. 
Nevertheless, Fort Bragg has taken a leadership role in the North 
Carolina Sandhills Region in conserving endangered species and other 
natural resources. This is evidenced through our Sustainable Fort Bragg 
and Sustainable Sandhills initiatives, as well as our partnership with 
the Nature Conservancy and other non-governmental organizations under 
the umbrella of the Private Lands Initiative to abate encroachment.

                            LESSONS LEARNED

    In the 1990's there were several instances where major training 
areas had to be closed because of directives from environmental 
regulators. With the assistance of the US Fish and Wildlife Service, 
Fort Bragg has turned that situation around and can now train on the 
vast majority of its training lands, albeit with some limitations.
    In 1990, in response to a U.S. Fish and Wildlife Service jeopardy 
biological opinion, Fort Bragg limited training activities in Red-
cockaded woodpecker cluster sites to transient foot traffic, restricted 
all vehicular traffic to pre-existing trails and roads, and prohibited 
troops from constructing obstacles, cutting pine trees, employing 
smoke, or digging in cluster sites or endangered species habitat. 
Additionally, the opinion restricted all training activities within 
endangered plant sites as well as within one hundred feet of wetlands.
     These training restrictions degraded realistic training. Maneuver 
was restricted, and units were artificially channeled to existing 
trails and roads. Engineer units' earth-moving, barrier and denial and 
smoke operations training were constrained.
    In October 1991, to ensure continued compliance with a 1985 
biological opinion, Fort Bragg's Directorate of Plans and Training 
closed Ranges 63 (a $20-million multi-purpose firing range; upgraded in 
1984-85) and 67 (a $1-million .50 caliber machinegun qualification 
range; upgraded in 1987). Based on similar concerns, the Directorate of 
Plans and Training also closed Range 78 (a $2 million aviation gunnery 
range) and 50 percent of Range 79 (a $1.2-million anti-armor range). 
Ten months later, the U.S. Fish and Wildlife Service issued the Coleman 
biological opinion, authorizing resumption of restricted operations on 
Ranges 63 and 67, and unrestricted operations on Ranges 78 and 79. The 
restrictions imposed on Ranges 63 and 67, resulting in the loss of use 
of two moving targets, remain in effect today. During the 10-month 
training hiatus, units had to travel to other installations to conduct 
their normal training at a cost of approximately $632,000.
    In May 1992, as a result of further consultations with the U.S. 
Fish and Wildlife Service, the Directorate of Plans and Training closed 
nine of 16 lanes on Range 56 (a $1.1-million M-16 rifle qualification 
range) for 24 months, and postponed the $2.3-million modernization of 
Ranges 33 and 43 (both M-l6 rifle qualification ranges) for 24 months.
    In January 1995, in response to the MacRidge jeopardy opinion, the 
Directorate of Plans and Training closed four of 10 lanes on Range 30 
(a $1.1-million complex and Fort Bragg's only automated machinegun 
range). The range remained closed until the construction of backstops 
to protect three cluster sites at an estimated cost of $25,000.
    At this point, we had about 13,000 acres of training area severely 
restricted by limitations caused by protecting critical habitat of the 
Red-cockaded woodpecker. It was clear that we needed to work to reverse 
this trend, and, with the assistance of the U.S. Fish and Wildlife 
Service, we made progress. In 1996, the U.S. Fish and Wildlife Service 
published revised management guidelines for Red-cockaded woodpecker 
management. Under these guidelines, Fort Bragg was allowed to reduce 
many of the training restrictions. By 2002, we had 5,364 acres where 
training was significantly limited, and this was area for all five of 
our endangered species. Although current training restrictions are at a 
lower level, they continue to impact realism.
    There is a significant cost for ecosystem management, including 
rare and endangered species monitoring. Costs for these programs 
include salaries, contracts, research, and partnering; however, habitat 
restoration activities such as prescribed burning and pine thinning 
also benefit training needs as well as the ecosystem. Salaries for 
endangered species personnel ranged from $529,561 in 1995 to $601,655 
in 2002. Contracts ranged from $495,004 in 1995 to $440,228 in 2002. An 
additional $170,508 was spent between 1995 and 2002 for supplies and 
equipment.
    While reducing the size of the area where training is constrained 
by environmental limitations, we have succeeded in growing our Red-
cockaded woodpecker population from 270 clusters in 1996 to 376 
clusters in 2002. Our ultimate goal is to manage 401 active clusters 
that would provide the necessary habitat for 350 potential breeding 
pairs.
    However, it must be remembered that reductions in training 
restrictions are contingent upon the success of the species moving 
toward recovery. Should the species start to fail, on or off Federal 
lands, the previous training restrictions or more strenuous 
restrictions could be imposed.
    In addition to managing our five currently listed federally 
endangered species, Fort Bragg remains the host for an additional 23 
species that are candidates for possible future listing under the 
Endangered Species Act. The listing of one or a number of these 
candidate species could have a significant impact on our ability to 
train to standard.
    We currently meet our training goals without any significant 
closures of training areas because of endangered species concerns. We 
have thousands of dollars and hundreds, if not thousands, of man-hours 
working with the U.S. Fish and Wildlife Service to reach our current 
balance between training realism and endangered species protection. Any 
additional limitations, such as those that would result from 
application of Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA) and Resource Conservation and Recovery Act 
(RCRA) to our impact areas, or a limitation caused by the need to 
protect the habitat of one or more new endangered species, would impact 
our ability to achieve balance.
    Our concern over the impact of any increase in environmental 
constraints on training caused us to seek new approaches to maintain 
the balance between being the Army's leader for training as well as its 
leader for environmental stewardship. We seized the concept of regional 
land use planning and the Private Lands Initiative. We recognized that 
success would only come from active participation from the State and 
local governments, as well as that of the private land owners. To that 
end, Fort Bragg works closely with the surrounding communities, leaders 
and State government toward compatible land use and conservation; 
however, these are often resource intensive activities that the 
installation is neither funded nor staffed to provide.

                             THE WAY AHEAD

    The Department of Defense is seeking to develop regional 
partnerships that encourage shared responsibilities for protected 
species management and recovery to reduce future restrictions on 
military training. Fort Bragg is a major participant in the recently 
developed regional North Carolina Sandhills Conservation Partnership, 
as is the Army Environmental Center, U.S. Fish and Wildlife Service, 
the Nature Conservancy, State Sandhills Gamelands, and the Sandhills 
Ecological Institute research organization. The challenge is to 
conserve the longleaf pine ecosystem and individual species within and 
meet Red-cockaded woodpecker recovery goals while ensuring Fort Bragg 
can continue to effectively train troops.
    To deal with the issue of urban encroachment, Fort Bragg initiated 
a Joint Land Use Study (JLUS) in 1988. Bragg was the first Army 
installation to do a JLUS. It was also the first time that an Army and 
Air Force installation conducted a joint study. The purpose of the 
study was to accommodate the growth and development of the region 
without compromising the military missions of Bragg and Pope. Over 
time, the JLUS perspective on encroachment has broadened to include the 
impact of endangered species management on training, as well as other 
environmental-related regulatory constraints.
    The Joint Land Use Study mobilized Fort Bragg to aggressively 
purchase key parcels contiguous to the installation to deal with urban 
encroachment. Using the JLUS as our support, we began a program to buy 
lands that created training constraints or might cause us to limit 
training if they were used in a manner inconsistent with our nearby 
training. Thanks to strong congressional support, Fort Bragg was able 
to purchase the following key land parcels:


----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
1991.................................  Longleaf Partners Tract                366 acres                $ 285,000
1994.................................  Williams Tract.........                884 acres                  850,000
1995.................................  Green Tract............                124 acres                  130,000
1995.................................  McLean/Thompson........                100 acres                1,046,530
1997.................................  Overhills..............             10,580 acres               29,400,000
                                       TOTAL..................             12,054 acres              $31,711,530
----------------------------------------------------------------------------------------------------------------

    With the purchase of the Longleaf Partners tract in 1991, Fort 
Bragg now owns all of the Clear Zone on the southwest end of Mackall 
Army Airfield. About 75 percent of the Accident Potential Zone 1 is 
protected due to the Longleaf purchase, existing Camp Mackall acreage, 
or the State-owned Sandhills Game Lands. (Camp Mackall is a sub-
installation of Fort Bragg.)
    In 1994, Fort Bragg purchased the Williams tract. This purchase 
provided 884 acres of buffer land on the rapidly developing northeast 
part of Camp Mackall. This part of Moore County is starting to develop 
into upscale golf communities and horse farms.
    In 1995, Fort Bragg acquired a small tract of land through 
condemnation known as the Green tract at the end of Rhine-Luzon Drop 
Zone. The USAF would not certify the drop zone for jumps from the C-141 
(a jet aircraft) because the first jumper had to exit the door over 
this tract of privately owned land. The purchase assured us of the full 
use of this drop zone by the more modern aircraft then being used by 
our paratroopers. Fortunately, the land was undeveloped and Congress 
was supportive of our request to acquire.
    In October 1995, Fort Bragg purchased the McLean-Thompson tract. 
With this purchase, we bought all of Accident Potential Zone 2 and most 
of the noise contours that extended off post. An effort by the owner to 
change the zoning to allow up to six homes per acre to be built in the 
approach zone to the runway triggered the effort to purchase. Multiple 
attempts to modify the residential density at the zoning commission and 
before the City Council were unsuccessful. Consequently, the necessary 
actions were taken to purchase the land and ensure the viability of the 
airfield.
    In January 1997, with the purchase of the Rockefeller or Overhills 
tract, Fort Bragg obtained some of the land that falls in Accident 
Potential Zone 2 for Pope Air Force Base, as well as land that falls 
under Pope noise contours. This 10,580-acre tract will help serve as a 
major buffer against urban encroachment. It already serves as a noise 
abatement flight track corridor for Pope Air Force Base. A noise 
abatement flight track corridor involves routing arrival and departure 
patterns over the least sensitive land use areas, such as open space 
corridors, instead of over housing.
    In the fall of 2001, Bragg and Pope began a major update of the 
earlier Joint Land Use Study. The update is being performed under the 
auspices of the Fort Bragg/Pope Air Force Base Regional Land Use 
Advisory Commission (RLUAC). The RLUAC is a State-chartered regional 
body whose voting members are local elected officials, land planning 
professionals, State planning officials, and local and State officials 
with an interest in economic development. Army, Air Force and DoD 
personnel participate in the activities of the RLUAC, but as non-voting 
ex officio members.
    The RLUAC is currently in the process of reviewing the draft report 
containing recommendations for the region. One of the remarkable 
benefits of the study is the excellent quality Geographic Information 
System (GIS) mapping that has already been delivered. With the 
sophisticated GIS mapping of the region, it is possible to see exactly 
where the encroachment problem areas are, see exactly which parcels are 
affected by noise and aircraft safety/accident issues, and enable the 
development of concrete strategies for dealing with the encroachment. 
Through intelligent use of the data that will be captured by the JLUS 
Report, Fort Bragg hopes to avoid future encroachment on training 
activities by adjacent inconsistent land uses, such as those that 
increase the environmental compliance burden or limit full military use 
of training areas because of development along the installation's 
boundaries.
    Fort Bragg did not always take a regional perspective to training 
limitations and, as a result, have lost the use of some training areas. 
For example, as the direct result of urban development which has been 
permitted to expand in Hoke County near Fort Bragg's Sainte Mere Eglise 
Drop Zone, the Army has been forced to drastically curtail its training 
activities in the area. This was an example where Fort Bragg did not 
foresee the effects and did not purchase key land as a buffer. Prior to 
the creation of the residential neighborhoods, Ste Mere Eglise was used 
for heavy equipment drops from C-130 cargo planes. A very large 
subdivision of modular homes was built so close to the boundary and 
adjacent drop zone that the ``Home of the Airborne'' has essentially 
had to give up a large part of the airborne training that used to be 
conducted on this drop zone. Heavy equipment drops must now take place 
at more remote locations on the installation.
    For well over a decade, efforts have been made to raise the 
public's awareness of endangered plant and animal species located 
within the Sandhills region of North Carolina which are being 
threatened by urban development pressures. The initial protection 
efforts focused on a single animal species--the Red-cockaded 
woodpecker; however, a more holistic approach has emerged over time 
which seeks to identify and protect North Carolina's endangered 
``Longleaf Pine'' ecosystem as well.
    Fort Bragg, as a Federal agency, bears a responsibility for 
recovering the listed endangered species and in preserving the 
ecosystem they require to survive. However, in 1994 Fort Bragg began a 
major effort which seeks to share the responsibility for management and 
protection with other regional stakeholders through the Private Lands 
Initiative. This effort, which led to the formation of the North 
Carolina Sandhills Conservation Partnership, has been successful in 
developing a coordinated approach to the issue.
    As previously mentioned, the Sandhill's Partnership mission is to 
coordinate the development and implementation of conservation 
strategies for the Red-cockaded woodpecker, other native biota, 
longleaf pine and other ecosystems in the Sandhills of North Carolina 
compatible with the land use objectives of the partners. Working with 
its partners, the Sandhills Partnership has been successful in 
acquiring, through acquisition or conservation easement, approximately 
5,800 acres of key land for conservation purposes in the areas 
surrounding Fort Bragg in a program called the Private Lands 
Initiative. However, unlike Fort Bragg's land acquisitions of the 
1990's, acquisitions by the Sandhills Partnership do not remove the 
land from the tax base. Again with the support of Congress, the 
following tracts have been acquired:


----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
Horse Creek...................................................                549 acres              $ 1,875,000
Quewhiffle Creek..............................................                243 acres                  436,608
Parsons.......................................................                333 acres                  750,000
Carvers Creek.................................................              1,172 acres                5,276,430
Calloway......................................................              2,400 acres                5,300,000
Breeden.......................................................                100 acres                  297,500
Upchurch......................................................                980 acres                  100,000
    TOTAL.....................................................              5,777 acres              $14,035,538
----------------------------------------------------------------------------------------------------------------

                               CONCLUSION

    Fort Bragg remains committed to its responsibility as an 
environmental steward. However, we are also committed to providing the 
most realistic training possible to our soldiers since only through 
tough realistic training can we assure their success and their safety. 
Although Fort Bragg continues to make progress and provide leadership, 
we believe that the listing of additional species or the implementation 
of new regulations or guidelines will significantly impact our ability 
to train.
    Right now, Fort Bragg is at the wall. We can continue to provide 
realistic training; however, each day we are becoming more limited by 
the constraints imposed through incompatible adjacent land use 
practices that encroach on training and by other constraints caused by 
environmental compliance requirements.
    We must act now to marshal the necessary resources to obtain 
requisite buffer zones designed to mitigate further incompatible 
development along the installation's boundaries. Further, we must 
continue to pursue the Private Lands initiative and work toward the 
preservation of the Sandhills ecosystem, which in turn supports 
military training, readiness, and ultimately preserves our national 
security.
    Thank you, Mr. Chairman and distinguished members of the committee 
for allowing me to present this testimony.

                               __________
  Statement of Rear Admiral Jonathan W. Greenert, United States Navy, 
             Deputy Commander, United States Pacific Fleet

Introduction
    Chairman Inhofe, Senator Jeffords, 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 (USPACOM's) theater strategy, and to provide 
interoperable, trained and combat-ready naval forces to USPACOM and 
other U.S. unified commanders. The U.S. Pacific Fleet area of 
responsibility (AOR) covers more than 50 percent of the earth' 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.
    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 we prepare for possible conflict today and look to 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, decreases scheduling, 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 
and 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 fiscal 
year 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.

            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 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 Department of Defense'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 in 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 VCNO 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, our ability to test and train with LFA in the waters in 
which it will need to be employed could be compromised. 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 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. Potential adversary nations are investing heavily in submarine 
technology. In addition to the United States, Australia, Canada, and 
the United Kingdom, 41 other countries, including China, North Korea, 
and Iran, have modern quiet diesel submarines. 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 Fleet.
    Because of these threats, Navy identified the requirement to detect 
hostile submarines before they are close enough to use weapons. The 
most promising and best available technology to reliably meet this 
requirement is SURTASS LFA. 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 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 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 an 
unprecedented program of public meetings and outreach for the Navy. 
Based on this effort, NMFS concluded that the planned SURTASS LFA 
operations would have negligible impacts on marine mammals.
EIS Outreach
      Notice of Intent published in 1996
      3 public scoping meetings
      8 public outreach meetings
      3 public hearings on the Draft EIS (DEIS)
      DEIS distributed to Federal, State and local government 
agencies, citizen groups and organizations, and 17 public libraries
      Over 1,000 public comments received on DEIS
      Record of Decision signed in June 2002

    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. The court stated, 
``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 
worldwide 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 the court's opinion suggests that the term must be interpreted 
as an absolute number that must be determined to be ``small.'' The 
court's opinion underscores shortcomings in the MMPA that apply to any 
worldwide 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, the court enjoined 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 might 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 in 
detecting migratory Grey Whales off the coast of California.
    To address these issues, I ask for your consideration of the 
narrowly focused amendments to the MMPA proposed in the fiscal year 
2004 National Defense Authorization Act, which has now been transmitted 
by the President to Congress.

                      ENDANGERED SPECIES ACT (ESA)

    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 Government is considering whether it is 
necessary under the law to designate 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. Neither the crow nor kingfisher currently lives 
on the land. Designation would have substantial adverse consequences on 
the Navy, and should be avoidable, given that the Navy and the U.S. 
Fish and Wildlife Service in 1994 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. 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 COMNAVMAR Installation and Natural Resource Management 
Plan for the Ordnance Annex could provide 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 several of those proposed on Guam, 
was made because the habitat provides a suitable base for the recovery 
of the species. Thus, we not only facing the requirements of critical 
habitat per se, but the added responsibilities and restrictions 
associated with the reintroduction of the species on the facility
    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. In addition, the 
legislative proposal does not remove the requirement for agency 
consultations under the Endangered Species Act.
    There are examples that indicate that INRMPs are an effective tool 
for protecting the environment. For example, at Naval Amphibious Base 
Coronado, the Navy is spending about $720,000 per year on conservation 
and management programs for the Western Snowy Plover and Least Tern, 
endangered birds that nest in that area. That effort has successfully 
increased the number of Least Tern nests from 187 to 825 (over 4 times 
as many in 9 years) and the number of Western Snowy Plover nests from 7 
to 99 (nearly 14 times as many in 9 years). Similar good environmental 
stewardship by the Navy has been demonstrated at Vieques Island, Puerto 
Rico, where over 17,000 sea turtle eggs have been incubated and 
returned to the environment during a 10-year program. Vieques is only 
one part of a Navy-wide sea-turtle conservation effort in which we 
invest about $1 million a year.
    Adopting this recommended change 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 balance of 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 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.

                               __________
Statement of Colonel Frank C. DiGiovanni, Chief, Ranges, Airfields and 
  Airspace Operations and Requirements Division, Air Combat Command, 
                        United States Air Force

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 2-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.











                               __________
                             stappa/alapco
                                                    March 12, 2003.

The Honorable Duncan Hunter. Chairman,
Armed Services Committee,
U.S. House of Representatives,
2120 Rayburn House Office Building,
Washington, DC 20515.

The Honorable Ike Skelton, Ranking Member,
Armed Services Committee,
U.S. House of Representatives,
2120 Rayburn House Office Building,
Washington, DC 20515.

Dear Congressmen Hunter and Skelton: On behalf of the State and 
Territorial Air Pollution Program Administrators (STAPPA) and the 
Association of Local Air Pollution Control Officials (ALAPCO), the two 
national associations of State and local air pollution control 
officials in 54 States and territories and more than 165 major 
metropolitan areas across the country, we write to you today to express 
concerns regarding potential changes to Clean Air Act (CAA) provisions 
as they relate to activities of the U.S. Department of Defense (DOD), 
and to urge against such potential changes during upcoming debate over 
the ``National Defense Authorization Act for Fiscal Year 2004.''
    As part of your committee's deliberations over this bill, 
amendments to various environmental and public health statutes will be 
considered. We understand that there will be a hearing on such proposed 
amendments in your committee tomorrow. These amendments, which were 
based on recommendations by DOD, would provide broad statutory 
exemptions for purposes of military readiness, including sweeping 
exemptions from the CAA. Our associations opposed these CAA exemptions 
when they were proposed last year and we are writing again now to 
oppose them just as forcefully. We are pleased that Congress rejected 
adoption of the CAA exemptions last year and we urge you to do so again 
this year.
    STAPPA and ALAPCO believe that the proposed CAA exemptions are 
unwarranted and will impede local, State and Federal efforts to attain 
and maintain health-based National Ambient Air Quality Standards 
(NAAQS) and deliver healthful air to our citizens. Such exemptions 
would also interfere with our efforts to protect air quality in 
national parks and other important ecosystems. Section 2018 of the bill 
exempts air pollution caused by military readiness activities from 
State and Federal implementation plans designed to meet the health-
based NAAQS. For nonattainment areas, the exemption would last for 3 
years, while for attainment and unclassifiable areas, the exemption 
appears to be permanent.
    These exemptions would allow military readiness activities, alone 
among air pollution activities that our members regulate, to cause or 
contribute to violations of health-based NAAQS, increase the frequency 
or severity of such violations or delay timely attainment of the 
standards or interim milestones. Further, the bill's response to these 
sweeping exemptions is to allow EPA to approve areas as being in 
attainment with the ozone, carbon monoxide and PM10 air 
quality standards--even when those areas in fact are not in attainment 
with those standards--if the area would be in attainment but for air 
pollution from military readiness activities.
    We believe these exemptions and the bill's response are unjustified 
and would improperly compromise the CAA's mission and the 
responsibilities of State and local officials to protect public health 
and safeguard air quality. We oppose any approach that would undermine 
the integrity of health-based air quality standards by designating air 
quality to be healthy when it is not. Moreover, this approach would 
impose inequitable burdens upon the industries we regulate, as well as 
on the public. State and local air pollution control officials will 
still feel the responsibility to deliver truly healthful air to the 
public we serve and, therefore, we will have no choice but to call upon 
other sectors in order to obtain the emission reductions we can no 
longer secure from military facilities.
    In addition, STAPPA and ALAPCO believe that such exemptions are 
unnecessary, in that the CAA already provides DOD ample flexibility to 
carry out its duties. Under Section 118 of the CAA, the President may 
exempt DOD from any requirements of the Act upon finding that it is of 
``paramount interest of the United States to do so.'' Further, the 
Federal regulations implementing the CAA's ``general conformity'' 
provisions from which DOD specifically seeks exemption also allow DOD 
to suspend compliance in the case of emergencies (which, by definition, 
include terrorist activities and military mobilizations) and, 
additionally, permit DOD to conduct routine movement of material, 
personnel and mobile assets, such as ships and aircraft, provided no 
new support facilities are constructed.
    In light of the broad statutory and regulatory flexibilities 
already provided, we do not believe that additional CAA exemptions are 
necessary in order for DOD to conduct military readiness activities. 
Further, we believe the CAA exemptions sought by DOD would, 
essentially, serve only to allow routine, non-emergency activities that 
require the construction of additional support facilities to skirt 
important environmental requirements. The significant adverse air 
quality impacts that could result from such exemptions could 
unnecessarily place the health of our nation's citizens at risk.
    STAPPA and ALAPCO urge you and your colleagues to reject actions to 
exempt DOD from CAA requirements. If, however, such actions are to be 
further pursued, we respectfully request that Congress allow for full 
participation by all interested parties, including State and local air 
pollution control officials, and that other congressional committees 
with jurisdiction over CAA issues also be included.
    If you have any questions, or if STAPPA and ALAPCO can provide any 
further information, please do not hesitate to contact either of us or 
STAPPA/ALAPCO Executive Director S. William Becker at (202) 624-7864.
            Sincerely,
                                            Lloyd L. Eagan,
                                                  STAPPA President.

                                              Ellen Garvey,
                                                  ALAPCO President.

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