[House Report 108-99]
[From the U.S. Government Publishing Office]
108th Congress Rept. 108-99
HOUSE OF REPRESENTATIVES
1st Session Part 1
======================================================================
NATIONAL SECURITY READINESS ACT OF 2003
_______
May 14, 2003.--Ordered to be printed
_______
Mr. Pombo, from the Committee on Resources, submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1835]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 1835) to amend the Endangered Species Act of 1973 to
limit designation as critical habitat of areas owned or
controlled by the Department of Defense, and for other
purposes, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do
pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``National Security Readiness Act of
2003''.
SEC. 2. MILITARY READINESS AND THE CONSERVATION OF PROTECTED SPECIES.
(a) Designation of Critical Habitat.--Section 4(a)(3) of the
Endangered Species Act of 1973 (16 U.S.C. 1533(a)(3)) is amended by
striking ``prudent and determinable'' and inserting ``necessary''.
(b) Limitation on Designation of Critical Habitat.--Section 4(a)(3)
of the Endangered Species Act of 1973 (16 U.S.C. 1533(a)(3)) is
amended--
(1) by redesignating subparagraphs (A) and (B) as clauses (i)
and (ii), respectively;
(2) by inserting ``(A)'' after ``(3)''; and
(3) by adding at the end the following:
``(B)(i) The Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense, or designated for its use, that are subject to an
integrated natural resources management plan prepared under section 101
of the Sikes Act (16 U.S.C. 670a), if the Secretary determines that
such plan addresses special management considerations or protection (as
those terms are used in section 3(5)(A)(i)).
``(ii) Nothing in this paragraph affects the requirement to consult
under section 7(a)(2) with respect to an agency action (as that term is
defined in that section).
``(iii) Nothing in this paragraph affects the obligation of the
Department of Defense to comply with section 9, including the
prohibition preventing extinction and taking of endangered species and
threatened species.''.
(c) Consideration of Effects of Designation of Critical Habitat.--
Section 4(b)(2) of the Endangered Species Act of 1973 (16 U.S.C.
1533(b)(2)) is amended by inserting ``the impact on national
security,'' after ``the economic impact,''.
SEC. 3. AMENDMENT TO DEFINITION OF HARASSMENT UNDER MARINE MAMMAL
PROTECTION ACT OF 1972.
Section 3(18) of the Marine Mammal Protection Act of 1972 (16 U.S.C.
1362(18)) is amended by striking the matter preceding subparagraph (B)
and inserting the following:
``(18)(A) The term `harassment' means--
``(i) any act that injures or has the significant
potential to injure a marine mammal or marine mammal
stock in the wild; or
``(ii) any act that disturbs or is likely to disturb
a marine mammal or marine mammal stock in the wild by
causing disruption of natural behavioral patterns,
including, but not limited to, migration, surfacing,
nursing, breeding, feeding, or sheltering, to a point
where such behavioral patterns are abandoned or
significantly altered.''.
SEC. 4. EXEMPTION OF ACTIONS NECESSARY FOR NATIONAL DEFENSE.
Section 101 of the Marine Mammal Protection Act of 1972 (16 U.S.C.
1371) is amended by inserting after subsection (e) the following:
``(f) Exemption of Actions Necessary for National Defense.--(1) The
Secretary of Defense, after conferring with the Secretary of Commerce,
the Secretary of the Interior, or both, as appropriate, may exempt any
action or category of actions undertaken by the Department of Defense
or its components from compliance with any requirement of this Act, if
the Secretary determines that it is necessary for national defense.
``(2) An exemption granted under this subsection--
``(A) subject to subparagraph (B), shall be effective for a
period specified by the Secretary of Defense; and
``(B) shall not be effective for more than 2 years.
``(3)(A) The Secretary of Defense may issue additional exemptions
under this subsection for the same action or category of actions,
after--
``(i) conferring with the Secretary of Commerce, the
Secretary of the Interior, or both as appropriate; and
``(ii) making a new determination that the additional
exemption is necessary for national defense.
``(B) Each additional exemption under this paragraph shall be
effective for a period specified by the Secretary of Defense, of not
more than 2 years.''.
SEC. 5. INCIDENTAL TAKINGS OF MARINE MAMMALS IN MILITARY READINESS
ACTIVITY.
Section 101(a)(5) of the Marine Mammal Protection Act of 1972 (16
U.S.C. 1371(a)(5)) is amended--
(1) in subparagraph (A)--
(A) by striking ``within a specified geographical
region'';
(B) by striking ``within that region of small
numbers''; and
(C) by adding at the end the following:
``Notwithstanding the preceding sentence, the Secretary is not
required to publish notice under this subparagraph with respect
to incidental takings while engaged in military readiness
activities authorized by the Secretary of Defense, except in
the Federal Register.'';
(2) in subparagraph (B)--
(A) by striking ``within a specified geographical
region''; and
(B) by striking ``within one or more regions''; and
(3) in subparagraph (D)--
(A) in clause (i)--
(i) by striking ``within a specific
geographic region'';
(ii) by striking ``of small numbers''; and
(iii) by striking ``within that region''; and
(B) by adding at the end the following:
``(vi) Notwithstanding clause (iii), the Secretary is not
required to publish notice under this subparagraph with respect
to an authorization under clause (i) of incidental takings
while engaged in military readiness activities authorized by
the Secretary of Defense, except in the Federal Register.''.
SEC. 6. LIMITATION ON DEPARTMENT OF DEFENSE RESPONSIBILITY FOR CIVILIAN
WATER CONSUMPTION IMPACTS ON CRITICAL HABITAT OR
ENDANGERED SPECIES.
(a) Rule of Construction.--For purposes of section 7 of the
Endangered Species Act of 1973 (16 U.S.C. 1536), the terms ``action''
and ``agency action'', when applied to any action of the Department of
Defense, shall not include water consumption of any kind unless--
(1) such water consumption occurs on a military installation,
whether the source of the water consumed is located on or off
the installation; or
(2) such water consumption occurs off of a military
installation and the source of the water is under the direct
control of the Department of Defense.
(b) Voluntary Efforts.--Nothing in this section shall prohibit a
military installation from voluntarily undertaking efforts to mitigate
water use and consumption.
(c) Definitions.--In this section:
(1) The term ``military installation'' has the meaning given
such term in section 2687(e) of title 10, United States Code.
(2) The term ``water consumption'' means the use of water,
from any source, for human purposes of any kind, including
household or industrial use, irrigation, or landscaping.
(d) Effective Date.--This section applies only to Department of
Defense actions regarding which consultation or reconsultation under
section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536) is
first required on or after the date of the enactment of this Act.
Purpose of the Bill
The purpose of H.R. 1835 is to amend the Endangered Species
Act of 1973 to limit designation as critical habitat of areas
owned or controlled by the Department of Defense, and for other
purposes.
Background and Need for Legislation
Endangered Species Act provisions
Over the past decade, designation of critical habitat under
the Endangered Species Act (ESA) has been a source of
controversy. Due to the rigorous mandates required under the
current ESA, specifically critical habitat designations, many
think the program is unworkable. Judicial orders and court-
approved settlement agreements have left the U.S. Fish and
Wildlife Service (USFWS) with limited ability to prioritize its
species recovery programs and little or no scientific
discretion to focus on those species in greatest need of
conservation. The Administration acknowledges that court orders
and mandates often result in leaving the USFWS with almost no
ability to confirm scientific data in its administrative record
before making decisions on listing and critical habitat
proposals. In the wake of the current circumstances, the
Administration has recognized that critical habitat provides
relatively little additional protection to listed species.
The Department of Defense (DOD) manages 25 million acres on
more than 425 military installations in the United States,
providing habitat for over 300 species listed as threatened or
endangered. Under the Clinton Administration, recognizing the
escalating challenge of balancing the ESA and that of DOD's
primary mission of maintaining our Nation's military readiness,
USFWS found a legitimate way to protect endangered species
without invoking the critical habitat requirements of the ESA.
Instead of new critical habitat designations, the
Administration began using ``Integrated Natural Resource
Management Plans'' (INRMPs), which are developed in close
cooperation with USFWS and state wildlife agencies. INRMPs
authorized in the Sikes Act (16 U.S.C. 670-670f)--ensure that
readiness operation and natural resources conservation are both
accommodated and consistent with stewardship and legal
requirements. INRMPs provide for extensive public notice and
comments. They are a comprehensive approach to ecosystem
management that the USFWS has repeatedly determined to be
sufficient to protect endangered species and their habitats.
The use of an INRMP as an alternative to a critical habitat
designation has been threatened by legal challenge. H.R. 1835
will codify the use of INRMPs, thereby strengthening the legal
defense of these plans before the court.
Marine Mammal Protection Act provisions
In 1981, the Marine Mammal Protection Act (MMPA) was
amended to include authority for the Secretary of Commerce (or
the Secretary of the Interior in certain circumstances) to
issue incidental take authorizations for specified activities
(other than commercial fishing operations) in specified
geographic regions for periods of not more than five years if
the activity has a negligible impact and takes small numbers of
marine mammals of a species or takes from a population stock
that is not depleted. The purpose of this new authority was to
allow activities to occur around marine mammals, but to ensure
that the activity did not have an adverse effect on the
species.
The Secretary, when developing the implementing
regulations, combined the negligible impact and small numbers
requirements. The regulations, therefore, allowed the Secretary
to make one finding. If an activity was determined to have a
negligible impact on a marine mammal species, then the
Secretary's determination also meant a small number of marine
mammals would be affected and the activity could receive a
small take authorization.
In 1994, the MMPA was again amended to include a definition
of ``harassment''. In brief, the definition of ``harassment''
is any act of pursuit, torment, or annoyance of marine mammals
which: [level A] has the potential to injure and [level B] has
the potential to disturb by causing a disruption of behavioral
patterns. This definition was included in the MMPA to clarify
what activities constitute harassment and to assist the
Secretary in enforcing actions that may adversely affect marine
mammals. However, the definition has not led to better
enforcement of the MMPA. The Secretary has been unable to
prosecute certain activities (like jet skiing) that have been
directed at specific animals due to the two-tiered requirement
of the definition. The Secretary is required to determine if an
action is an act of pursuit, torment, or annoyance and if that
can be done, the Secretary then makes a determination if the
action was level A or level B harassment.
The National Research Council (NRC) has issued three
reports on the effects of sound on marine mammals: Low
Frequency Sound and Marine Mammals: Current Knowledge and
Research Needs, 1994; Marine Mammals and Low Frequency Sound:
Progress Since 1994, 2000; and Ocean Noise and Marine Mammals,
2003.
In its 2000 report, the NRC concluded that regulating minor
changes in behavior having no adverse impact did not make
sense; instead, the regulations must focus on significant
disruption of behaviors critical to survival and reproduction.
The 2000 report recommended amending level B harassment to
reflect these conclusions. The 2003 NRC report expanded further
on the changes to level B harassment and recommended that level
B harassment should be modified to focus on biologically
significant disruption of behaviors critical to survival and
reproduction (i.e. adverse impacts), instead of any detectable
change in behavior.
The 2000 report also recommended the removal of ``small
numbers'' from the incidental take authorization, stating that
it would be desirable to remove the phrase ``small number''
from the MMPA. The concern was that if the language was
retained there would be a two test standard, small numbers
first and if that were met, then negligible impact from the
take of small numbers. The report stated, ``The removal of
`small numbers' would prevent the denial of research permits
that might insignificantly harass large numbers of animals and
would leave the `negligible impact' test intact.''
The Administration, first under President Clinton and then
under President George W. Bush, proposed amending the
definition of harassment in the Administration's draft MMPA
reauthorization bill. The language in the Administration's bill
modifies the NRC language to allow for proper implementation
and enforcement. The ``harassment'' definition in H.R. 1835 is
taken from the Administration's draft MMPA bill.
DOD has requested amending the MMPA to provide relief for
military readiness activities due to a recent court case,
Natural Resources Defense Council, et al. v. Donald Evans, et
al. The case focuses on the incidental take authorization
issued to the Navy authorizing the testing and training of its
Surveillance Towed Array Sensor System (SURTASS) Low Frequency
Active (LFA) sonar.
The plaintiffs in the case called into question the
Secretary's implementing regulations, specifically the
combination of the ``small numbers'' and ``negligible impact''
findings in its application to the sonar permit. In addition,
the plaintiffs argue that in the final rule the Secretary used
an illegal definition of ``harassment'' and too broadly defined
the ``specified geographic region''. The judge ruled that the
combination of the ``small number'' and ``negligible impact''
findings was in violation of the statute. The judge agreed with
the plaintiffs that the Secretary did use an illegal definition
of ``harassment'' and ruled that the Secretary used the best
scientific information available when determining the specific
areas the sonar could be tested. As a result of the court's
rulings, the Navy has been severely limited in its ability to
test and train its SURTASS LFA sonar.
Committee Action
H.R. 1835 was introduced on April 29, 2003, by Congressmen
Elton Gallegly (R-CA), Richard W. Pombo (R-CA), Jim Gibbons (R-
NV), and Don Young (R-AK). The bill was referred to the
Committee on Resources and additionally to the Committee on
Armed Services. On May 6, 2003, the Full Resources Committee
held a hearing on the bill. On May 7, 2003, the Full Resources
Committee met to mark up the bill. Chairman Richard Pombo
offered an amendment to strike: (1) the language in Section
2(a) of the bill which would allow federal agencies to protect
listed species as is practicable and consistent with their
primary purposes and; (2) the third paragraph in the harassment
definition, in Section 3 of the bill, which referenced any act
directed toward a specific individual, group, or stock of
marine mammals. This amendment was adopted by voice vote.
Congressman Rick Renzi (R-AZ) offered an amendment to add a new
section to the bill on ``Limitation on Department of Defense
Responsibility for Civilian Water Consumption Impacts on
Critical Habitat or Endangered Species,'' by defining two terms
in Section 7 of the ESA. The terms when applied to the
Department of Defense shall not include water consumption of
any kind unless the consumption occurs on the military
installation or the consumption occurs off the installation,
but the source of water is under the direct control of the
Department. The amendment was adopted by a roll call vote of 22
to 16, as follows:
The bill as amended was then ordered favorably reported to
the House of Representatives by a roll call vote of 25 to 13,
as follows:
Section-by-Section Analysis
Section 1. Short title
The Act may be cited as the ``National Security Readiness
Act of 2003''.
Section 2. Military readiness and the conservation of protected species
Subsection (a) amends section (4)(a)(3) of the Endangered
Species Act by striking ``prudent and determinable'' and
inserting ``necessary''.
Subsection (b) amends section (4)(A)(3) of the ESA by
adding a new (B)(i) which requires the Secretary of the
Interior to not designate critical habitat for lands or other
geographic areas owned or controlled by the Department of
Defense that are subject to INRMPs if the Secretary determines
such plans address special management conditions or
protections. Consultations under section 7(a) of the ESA are
still required and the Department of Defense is still obligated
to comply with section 9 of the ESA.
It is the intent of the Committee that an INRMP on a
military installation shall be deemed a sufficient species
management program so that a designation of critical habitat is
not needed for that facility. H.R. 1835 will codify the policy
brought forward by the Clinton and Bush Administrations that
allowed the Department of Defense to cooperate with the USFWS
in responsibly managing habitat.
Section 3. Amendment to definition of harassment under Marine Mammal
Protection Act of 1972
Section 3(18) of the MMPA is amended by striking ``any act
of pursuit, torment, or annoyance which'' after ``harassment
means.'' It also modifies [level A] harassment to include
``injures or has the significant potential to injure'' and
[level B] harassment to include ``disturbs or is likely to
disturb.'' The amended definition clarifies ``natural
behavioral patterns'' as migration, surfacing, nursing,
breeding, feeding, or sheltering. An act is considered level B
``harassment'' if it effects a marine mammal to a point where
the marine mammal's ``natural behavioral patterns'' are
abandoned or significantly altered.
Section 4. Exemption of actions necessary for national defense
This section amends the MMPA to include an exemption for
the Secretary of Defense after conferring with the Secretary of
Commerce, or the Secretary of the Interior, or both, as
appropriate, for military readiness activities necessary for
national defense. The Secretary of Defense can apply for an
exemption for a period of not more than two years and can ask
for extensions for periods of not more than two years.
Section 5. Incidental takings of marine mammals in military readiness
activity
This section amends section 101(a)(5) of the MMPA by
striking any reference to ``small numbers'' and ``specified
geographic region.''
The removal of these provisions would no longer require
that activities authorized under this section be limited to a
``specified geographic region'' or restricted to effecting only
``small numbers'' of marine mammals. The scientifically-based
``negligible impact'' standard will be the guide for the
Secretary of Commerce when determining the effect of activities
on marine mammals. The underlying rulemaking process will still
analyze the impacts and scope of military readiness and other
activities.
It is the intent of the Committee that the deletion of
``specified geographical regions'' and ``small numbers''
requirements from the MMPA will require the Secretary of
Commerce to amend the current regulatory definition of
``specified activity'', set forth in 50 Code of Federal
Regulations 216.103, to ensure consistency with the MMPA as
amended. ``Specific activity'' should be redefined to preclude
mention of ``small numbers'' and ``specified geographic
region''.
These proposed amendments do not change the applicant's
requirement of having to show that his or her activities are
having a negligible impact on the marine mammal species and
populations. Additionally, the applicant will have to
demonstrate that his or her activities will not have an
unmitigable adverse impact on the availability of such species
or stocks for subsistence uses pursuant to the MMPA. These
analyses are the key elements to maintaining the health of
marine mammal species and are the premise for take
authorizations under the MMPA.
It is also the intent of the Committee that nothing in this
provision would preclude the National Marine Fisheries Service
from issuing an incidental take authorization only for the area
described in the permit application.
This section also strikes all notice requirements for an
incidental take authorization for a military readiness
activity, except the Federal Register publication. In referring
to military readiness activities, the Committee means those
activities defined in Section 315(f) of Public Law 107-314 (Bob
Stump National Defense Authorization Action for Fiscal Year
2003). The section also clarifies that references to military
readiness activities ``authorized by the Secretary of Defense''
do not require a specific authorization of each activity by the
Secretary of Defense and that the Secretary of Defense is not
prohibited from delegating such authority. Finally, none of
these changes in any way requires the public disclosure of
classified information.
Section 6. Limitation on Department of Defense responsibility for
civilian water consumption impacts on critical habitat or
endangered species
(a) Rule of Construction. The terms ``action'' and ``agency
action'' in Section 7 of the ESA are clarified so as when
applied to any action of the Department of Defense the terms
shall not include water consumption of any kind unless the
consumption occurs on the military installation or the
consumption occurs off the installation, but the source of
water is under the direct control of the Department.
(b) Voluntary Efforts. Nothing in the section shall
prohibit a military installation from voluntarily mitigating
water use and consumption.
(c) Definitions. The terms ``military installation'' and
``water consumption'' are defined.
(d) Effective date. The requirements regarding consultation
or reconsultation under section 7 of the ESA is first required
on or after the date of enactment of this Act.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Resources' oversight findings and recommendations
are reflected in the body of this report.
Constitutional Authority Statement
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. General Performance Goals and Objectives. This bill does
not authorize funding and therefore, clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives does not
apply.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 12, 2003.
Hon. Richard Pombo,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1835, the National
Security Readiness Act of 2003.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Deborah Reis.
Sincerely,
Barry B. Anderson
(For Douglas Holtz-Eakin, Director).
Enclosure.
H.R. 1835--National Security Readiness Act of 2003
H.R. 1835 would exempt the Department of Defense (DoD) from
complying with certain requirements of the Endangered Species
Act of 1973 (ESA) and the Marine Mammal Protection Act of 1972.
The bill also would amend the ESA to change the standard for
determining when critical habitat for threatened or endangered
species should be designated and would prohibit such
designations from being made on land owned or controlled by
DoD.
CBO estimates that implementing H.R. 1835 would have no
significant impact on the federal budget. Based on information
provided by the Department of the Interior, we do not expect
the revisions made to the two conservation acts would cause any
change in the workload of the agencies responsible for
implementing and enforcing them (primarily the U.S. Fish and
Wildlife Service and the National Oceanic and Atmospheric
Administration). The DoD expects that the changes would provide
additional flexibility in carrying out military training and
testing exercises. CBO expects that the department could
experience some reduction in the costs of complying with the
two acts, but realizing any such savings would depend on future
appropriations actions. Enacting this bill would not affect
direct spending or revenues.
H.R. 1835 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Deborah Reis.
The estimate was approved by Peter H. Fontaine, Deputy
Assistant Director for Budget Analysis.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
SECTION 4 OF THE ENDANGERED SPECIES ACT OF 1973
DETERMINATION OF ENDANGERED SPECIES AND THREATENED SPECIES
Sec. 4. (a) General.--(1) * * *
* * * * * * *
(3)(A) The Secretary, by regulation promulgated in accordance
with subsection (b) and to the maximum extent [prudent and
determinable] necessary--
[(A)] (i) shall, concurrently with making a
determination under paragraph (1) that a species is an
endangered species or a threatened species, designate
any habitat of such species which is then considered to
be critical habitat; and
[(B)] (ii) may, from time-to-time thereafter as
appropriate, revise such designation.
(B)(i) The Secretary shall not designate as critical habitat
any lands or other geographical areas owned or controlled by
the Department of Defense, or designated for its use, that are
subject to an integrated natural resources management plan
prepared under section 101 of the Sikes Act (16 U.S.C. 670a),
if the Secretary determines that such plan addresses special
management considerations or protection (as those terms are
used in section 3(5)(A)(i)).
(ii) Nothing in this paragraph affects the requirement to
consult under section 7(a)(2) with respect to an agency action
(as that term is defined in that section).
(iii) Nothing in this paragraph affects the obligation of the
Department of Defense to comply with section 9, including the
prohibition preventing extinction and taking of endangered
species and threatened species.
(b) Basis for Determinations.--(1) * * *
(2) The Secretary shall designate critical habitat, and make
revisions thereto, under subsection (a)(3) on the basis of the
best scientific data available and after taking into
consideration the economic impact, the impact on national
security, and any other relevant impact, of specifying any
particular area as critical habitat. The Secretary may exclude
any area from critical habitat if he determines that the
benefits of such exclusion outweight the benefits of specifying
such area as part of the critical habitat, unless he
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.
* * * * * * *
----------
MARINE MAMMAL PROTECTION ACT OF 1972
* * * * * * *
DEFINITIONS
Sec. 3. For the purposes of this Act--
(1) * * *
* * * * * * *
[(18)(A) The term ``harassment'' means any act of
pursuit, torment, or annoyance which--
[(i) has the potential to injure a marine
mammal or marine mammal stock in the wild; or
[(ii) has the potential to disturb a marine
mammal or marine mammal stock in the wild by
causing disruption of behavioral patterns,
including, but not limited to, migration,
breathing, nursing, breeding, feeding, or
sheltering.]
(18)(A) The term ``harassment'' means--
(i) any act that injures or has the
significant potential to injure a marine mammal
or marine mammal stock in the wild; or
(ii) any act that disturbs or is likely to
disturb a marine mammal or marine mammal stock
in the wild by causing disruption of natural
behavioral patterns, including, but not limited
to, migration, surfacing, nursing, breeding,
feeding, or sheltering, to a point where such
behavioral patterns are abandoned or
significantly altered.
* * * * * * *
TITLE I--CONSERVATION AND PROTECTION OF MARINE MAMMALS
MORATORIUM AND EXCEPTIONS
Sec. 101. (a) There shall be a moratorium on the taking and
importation of marine mammals and marine mammal products,
commencing on the effective date of this Act, during which time
no permit may be issued for the taking of any marine mammal and
no marine mammal or marine mammal product may be imported into
the United States except in the following cases:
(1) * * *
* * * * * * *
(5)(A) Upon request therefor by citizens of the
United States who engage in a specified activity (other
than commercial fishing) [within a specified
geographical region], the Secretary shall allow, during
periods of not more than five consecutive years each,
the incidental, but not intentional, taking by citizens
while engaging in that activity [within that region of
small numbers] of marine mammals of a species or
population stock if the Secretary, after notice (in the
Federal Register and in newspapers of general
circulation, and through appropriate electronic media,
in the coastal areas that may be affected by such
activity) and opportunity for public comment--
(i) * * *
* * * * * * *
Notwithstanding the preceding sentence, the Secretary
is not required to publish notice under this
subparagraph with respect to incidental takings while
engaged in military readiness activities authorized by
the Secretary of Defense, except in the Federal
Register.
(B) The Secretary shall withdraw, or suspend for a
time certain (either on an individual or class basis,
as appropriate) the permission to take marine mammals
under subparagraph (A) pursuant to a specified activity
[within a specified geographical region] if the
Secretary finds, after notice and opportunity for
public comment (as required under subparagraph (A)
unless subparagraph (C)(i) applies), that--
(i) * * *
(ii) the taking allowed under subparagraph
(A) pursuant to one or more activities [within
one or more regions] is having, or may have,
more than a negligible impact on the species or
stock concerned.
* * * * * * *
(D)(i) Upon request therefor by citizens of the
United States who engage in a specified activity (other
than commercial fishing) [within a specific geographic
region], the Secretary shall authorize, for periods of
not more than 1 year, subject to such conditions as the
Secretary may specify, the incidental, but not
intentional, taking by harassment [of small numbers] of
marine mammals of a species or population stock by such
citizens while engaging in that activity [within that
region] if the Secretary finds that such harassment
during each period concerned--
(I) * * *
* * * * * * *
(vi) Notwithstanding clause (iii), the Secretary is
not required to publish notice under this subparagraph
with respect to an authorization under clause (i) of
incidental takings while engaged in military readiness
activities authorized by the Secretary of Defense,
except in the Federal Register.
* * * * * * *
(f) Exemption of Actions Necessary for National Defense.--(1)
The Secretary of Defense, after conferring with the Secretary
of Commerce, the Secretary of the Interior, or both, as
appropriate, may exempt any action or category of actions
undertaken by the Department of Defense or its components from
compliance with any requirement of this Act, if the Secretary
determines that it is necessary for national defense.
(2) An exemption granted under this subsection--
(A) subject to subparagraph (B), shall be effective
for a period specified by the Secretary of Defense; and
(B) shall not be effective for more than 2 years.
(3)(A) The Secretary of Defense may issue additional
exemptions under this subsection for the same action or
category of actions, after--
(i) conferring with the Secretary of Commerce, the
Secretary of the Interior, or both as appropriate; and
(ii) making a new determination that the additional
exemption is necessary for national defense.
(B) Each additional exemption under this paragraph shall be
effective for a period specified by the Secretary of Defense,
of not more than 2 years.
* * * * * * *
DISSENTING VIEWS
H.R. 1835 purports to address concerns raised by the
Department of Defense that the Endangered Species Act (ESA) and
Marine Mammal Protection Act (MMPA) undermine national security
and impede military readiness. Yet H.R. 1835 goes beyond the
provisions the Administration requested in the Department of
Defense Authorization Act of 2004 transmitted to Congress on
April 10, 2003. The Administration has not asked for H.R. 1835
and failed to even take a position on the legislation at the
May 6, 2003, hearing.
In our view, H.R. 1835 overreaches and is unnecessary. The
Secretary of Defense has never used the exemptions available to
him under Public Law 105-85 and Section 7(j) of the ESA. In
addition, the General Accounting Office has found that training
readiness remains high at military installations
notwithstanding our environmental laws.
Under Section 4(b)(2) of the ESA, the Secretary of the
Interior already has the discretion to substitute preparation
of an adequate Integrated National Resources Management Plan
(INRMP) prepared by the Secretary of Defense pursuant to the
Sikes Act for critical habitat designation. In fact, it is the
practice of the Fish and Wildlife Service to substitute an
INRMP that provides for the conservation of the species, and
includes assurances that the INRMP will be implemented and
effective, for critical habitat designation, according to the
Congressional Research Service. This discretion has never been
challenged successfully in court. Unless the Fish and Wildlife
Service continues this policy under H.R. 1835, the only time
the conservation needs of the species will be examined will
come during a Section 7 consultation when it is likely to be
too late as the species and habitat may already have dwindled
significantly.
The Majority complains that lawsuits are driving policy at
the Fish and Wildlife Service, yet the Committee failed to
adopt the one provision recommended in testimony given by
Interior Assistant Secretary for Fish and Wildlife and Parks
Craig Manson to avoid future litigation. He asked the Committee
to strike the words ``provides the `special management
considerations or protection' required under the Endangered
Species Act (16 U.S.C. 1532(5)(A)) and'' in Section 2(c)(3) of
H.R. 1835 but this recommendation was ignored.
Section 2(b) of H.R. 1835 would require the Secretary of
the Interior to designate critical habitat to the maximum
extent ``necessary'' without defining ``necessary.'' This
change would give the Interior Secretary too much latitude at a
time when the world is on the brink of the sixth mass
extinction, according to testimony presented to the Committee.
As critical habitat shrinks, endemic species die at a
proportional rate. Once a species is lost, it is gone forever
and so too may be key sources of food and medicine. The
Administration did not request the language in Section 2(b) and
it should be dropped.
Similarly, Section 6 of H.R. 1835 would exempt the
Department of Defense from Section 7 of the ESA for any of its
off-base actions related to water consumption; here again, the
Department of Defense is not seeking this amendment adopted in
full Committee and it has nothing to do with national security.
Section 6 of H.R. 1835 applies nationwide and should be
deleted.
In regards to the MMPA, H.R. 1835 does nothing to address
the concerns raised regarding the DoD proposed changes to
weaken the Act. Rather, the bill compounds these problems by
broadening the scope of these changes beyond that proposed by
the Pentagon to further undermine protections for all marine
mammals of which several species still remain listed after
thirty years as endangered or threatened.
The Navy portrays its proposed changes to the MMPA's
definition of harassment as ``narrowly tailored to protect
military readiness activities, not the whole scope of Defense
Department activities'', and asserts that the new definition
would provide ``greater clarity and notice regarding
application of the MMPA to military readiness activities.'' Yet
section 3 of H.R. 1835, which parallels the DoD proposal, can
be considered neither narrow in scope, an improvement on
suggested ambiguities in the present definition, nor science-
based.
First, the definition proposed in section 3 does not
reflect the recommendations of the National Research Council.
The NRC did not recommend any change to Level A harassment, and
the NRCs recommended change to the language of Level B
harassment did not include the subjective and ambiguous phrase
``to a point where such behavioral patterns are abandoned or
significantly altered.'' That this proposed language no more
clarifies the existing definition of harassment is succinctly
stated in Dr. Peter Tyack's March 13, 2003 testimony before the
Military Readiness Subcommittee of the House Armed Services
Committee. Dr. Tyack is a renowned marine mammal biologist and
the principal research scientist for the Navy's SURTASS/LFA
scientific research program. Tyack clearly states that, ``The
proposed changes in the definition of harassment do not make
sense from a biological perspective and do not fully clarify
the problems with the earlier definition.'' Assertions made by
the Navy that this new definition is science-based and a
clarification are a sham.
Furthermore, this definition would reverse the essential
protective mandate that is the operative premise of the MMPA.
In a written response to questions contained in the Committee
on Resources Report 107-65, the Chairman of the Marine Mammal
Commission, Dr. John Reynolds, notes that ``the proposed
definition effectively reverses the precautionary burden of
proof [on a permit applicant] that has been a hallmark of the
[MMPA] since its inception in 1972.'' This critique is even
more applicable considering the provisions in section 5 of H.R.
1835 that would strike from the MMPA key conservation terms
specifying small numbers and specific geographic regions
necessary to determine the nature and extent of incidental harm
to a marine mammal or marine mammal population caused by a
proposed activity. That these terms were also key elements of
the courts decision in NRDC v. Evans, 232 F. Supp.2d 1003 (n.D.
Cal 2002) which enjoined the Navy from global deployment of its
SURTASS/LFA sonar system is not a coincidence.
The Navy's rationale for seeking this new definition is to
spare military readiness activities from a purported regulatory
burden of seeking MMPA permits. We note again for the record
that neither the Departments of Commerce nor Interior have ever
denied a permit request made by the Navy. Even if we found the
Navy's argument credible, we cannot ignore the fact that the
definition in H.R. 1835 would apply to all activities, not just
military readiness activities. Far from being a simple
clarification, this new definition would provide a far broader
and much higher legal threshold for regulators to determine an
activity's potential and likely harm. Consequently, a
significant loophole would be created to allow a great many
more activities to be granted permits for incidental
harassment, or worse, to evade any permit review at all.
Finally, section 4 of H.R. 1835 would grant to the
Secretary of Defense an audacious and unwarranted discretionary
authority to exempt any action, or any category of actions,
undertaken by the Department of Defense from compliance with
the MMPA. As stated earlier, the Secretary has never invoked
exemption authorities currently available to him under other
statutes. Accordingly, we question the necessity or practical
benefit of authorizing an exemption authority under the MMPA.
Yet, even if an exemption authority was found to be desirable,
the exemption authority in H.R. 1835, which would obviate any
meaningful environmental review by the Federal resource
agencies, revoke any requirement for public comment, and allow
exemptions to be endlessly renewed at two year intervals, is
utterly remarkable in its contrast to other comparable
exemption authorities which ensure at least some measure of
administration or public accountability.
In closing, lacking any compelling data to conclusively
demonstrate that military readiness and training have suffered
as a result of compliance with the ESA and MMPA, we are not
persuaded that the changes to these acts proposed by the
military are justified. If anything, the recently completed
Iraqi Freedom campaign verifies once again that our armed
forces remain the best trained, best equipped force on the
planet. The majority has opportunistically selected the present
circumstances as a thin veneer behind which to move legislation
to weaken key aspects of the ESA and MMPA that it could not
achieve otherwise. Such over-reaching should not be rewarded,
and the House should reject this legislation.
Nick Rahall.
George Miller.
Ed Markey.
Dale E. Kildee.
Frank Pallone, Jr.
Raul M. Grijalva.