[House Report 109-320]
[From the U.S. Government Publishing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    109-320

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        ACCESS TO NAVASSA AND DESECHEO NATIONAL WILDLIFE REFUGES

                                _______
                                

December 6, 2005.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Pombo, from the Committee on Resources, submitted the following

                              R E P O R T

                        [To accompany H.R. 1183]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Resources, to whom was referred the bill 
(H.R. 1183) to require the Secretary of the Interior to provide 
public access to Navassa National Wildlife Refuge and Desecheo 
National Wildlife Refuge, having considered the same, report 
favorably thereon without amendment and recommend that the bill 
do pass.

                          PURPOSE OF THE BILL

    The purpose of H.R. 1183 is to require the Secretary of the 
Interior to provide public access to Navassa National Wildlife 
Refuge and Desecheo National Wildlife Refuge.

                  BACKGROUND AND NEED FOR LEGISLATION

    The National Wildlife Refuge System is comprised of federal 
lands that have been acquired or reserved for the conservation 
of fish and wildlife. The System is administered by the U.S. 
Fish and Wildlife Service of the Department of the Interior. 
Totaling about 97 million acres, the system provides habitat 
for hundreds of fish and wildlife species within 545 refuges. 
It has been estimated that 39 million visitors travel to at 
least one refuge each year to enjoy the experience.
    Within the System, 88 units located throughout the United 
States are closed to the public because of the presence of 
endangered species, unexploded ordinance, the storage of 
nuclear waste and access safety concerns. However, individuals 
who wish to visit these refuges may apply for a Special Use 
Permit (SUP) from the Fish and Wildlife Service. According to 
the Service's Refuge Manual a specialized use is defined as, 
``Any refuge service, facility, privilege, or produce of the 
soil provided at refuge expense and not usually available to 
the general public through authorizations in Title 50 [of the 
Code of Federal Regulations] or other published regulations. 
Such use requires specific authorization from the refuge 
manager.''
    The National Wildlife Refuge System has long provided 
opportunities for public outdoor recreation. In recognition of 
the demand for recreational opportunities, Congress enacted the 
Refuge Recreation Act of 1962. This law clearly stated that the 
System should be available for public recreation as incidental 
or secondary uses provided that the activities are ``compatible 
with, and will not prevent accomplishment of, the primary 
purposes for which the . . . areas were acquired or 
established.'' The Recreation Act also stated that public 
recreation shall be permitted ``to the extent that it is 
practicable and not inconsistent with previously authorized 
Federal operations,'' and directed the Secretary of the 
Interior ``to cooperate with public and private agencies, 
organizations and individuals . . . and . . . accept and use . 
. . donations of funds and real and personal property'' in 
furtherance of public recreation. The Secretary was authorized 
to issue permits and establish reasonable fees and charges for 
public use of refuges to implement this policy. Encouragement 
of public recreation on refuges was not without reasonable 
limits. Discretion was given to the Secretary of the Interior 
to curtail public recreation only after determinations that the 
recreational use would not interfere with the primary purpose 
of the refuge and that adequate resources were not available 
for ``the development, operation and maintenance of . . . 
recreation.''
    Congress consolidated and clarified management authority 
for the Refuge System in 1966 when it passed the National 
Wildlife Refuge Administration Act (Public Law 89-669). Under 
this law, the Secretary of the Interior was also authorized to 
permit ``secondary'' uses or activities provided that these 
activities were compatible with the purpose for which the 
refuge was established. Secondary activities included 
traditional recreational uses such as hunting and bird 
watching, as well as other decidedly non-recreational uses 
including farming, grazing, mineral extraction and oil 
exploration.
    The National Wildlife Refuge Improvement Act of 1997 
reinforced the importance of recreation in the National 
Wildlife Refuge System. As defined under the 1997 Act, 
wildlife-dependent recreation includes hunting, fishing, 
wildlife observation and photography, and environmental 
education and interpretation. The law further stated that these 
uses are to be given priority consideration over other uses for 
comprehensive conservation planning and determinations of 
compatibility. This law did not, however, expressly prohibit 
other uses of refuges, recreational or otherwise. In fact, the 
plain language of the statute authorized the Secretary to 
``permit the use of any area within the System for any purpose, 
including but not limited to hunting, fishing, public 
recreation and accommodations, and access whenever he 
determines that such uses are compatible with the major 
purposes for which such areas were established.'' In addition, 
the law unequivocally preserved pre-existing authority 
requiring public access for recreation in stating that 
``Nothing in this section shall be construed to amend, repeal, 
or otherwise modify the provision of the [Recreation Act] which 
authorizes the Secretary to administer the areas within the 
System for public recreation.''
    Desecheo and Navassa are small uninhibited islands in the 
western Caribbean Sea. They are managed as refuges within the 
Caribbean Island National Wildlife Refuge complex. Desecheo 
lies approximately 14 miles west of Puerto Rico. It was used as 
a target for aerial bombardment from 1940 to 1952 and as a 
survival training area for the U.S. Air Force from 1950 to 
1960. It was transferred to the Department of the Interior and 
established as refuge in 1972. For nearly two decades, Desecheo 
was open to the public despite the fact that the Department of 
Defense had issued a preliminary risk assessment in 1991 
confirming specific locations of unexploded ordnance on the 
island. In 1998, the Fish and Wildlife Service closed Desecheo 
to all public access and stipulated that the decision was made 
because of unexploded ordnance and threats to pubic safety 
because of trespassing illegal aliens and drug smugglers. There 
are only a few wildlife resource values on the island, 
including three endemic species of lizards, an endangered 
cactus species and an occasional nesting hawksbill turtle.
    Navassa is located about 35 miles west of Haiti in the 
Jamaican Channel. Once the site of a guano mining operation and 
maintained by the federal government for lighthouse purposes, 
it was designated a refuge by Secretarial Order 3210 in 
December 1999. A 1998 scientific expedition described the 
island as a unique preserve of Caribbean biodiversity. The 
Secretarial Order creating the refuge stated that the Service 
would continue ``to administer this area under the National 
Wildlife Refuge System Administration Act . . ., the general 
regulations governing the . . . Refuge System . . . and in 
accordance with all applicable laws, policies and rules.'' 
Despite this directive, the island has been closed to the 
public since its establishment except for government employees 
and certain scientists from private conservation organizations. 
The U.S. Fish and Wildlife Service considers this closure 
necessary to protect the pristine condition of the island and 
the safety of visitors who must navigate dangerous cliffs to 
gain access to Navassa.
    The Fish and Wildlife Service closures of Desecheo and 
Navassa islands apply not only to general public use but also 
to proposals for use via special use permits (SUP). These 
closures, based jointly on faulty compatibility determinations, 
concerns for public safety, and claims of insufficient 
budgetary resources to facilitate use, demonstrate that the 
Service has failed to exercise sound professional judgment in 
evaluating SUP applications. These closures appear arbitrary 
and non-compliant with underlying law, pre-existing public use, 
and SUP policies at other remote refuges.
    In the case of Desecheo, the Fish and Wildlife Service has 
justified its closure based on purported threats to public 
safety due to unexploded ordnance and illegal trespassers. 
However, as noted earlier, SUPs to visit Desecheo were issued 
regularly up until 1998, when suddenly, the Service reversed 
course and closed the island, even though the locations of 
unexploded ordnance were well documented by a preliminary risk 
assessment. An additional 2002 U.S. Army Corps of Engineers 
Defense Environmental Restoration Program report corroborated 
the preliminary assessment and concluded that the unexploded 
ordinance on Desecheo did not constitute a catastrophic or 
critical risk. The Committee also finds the perceived threat 
posed by visitors running afoul of drug traffickers or 
smugglers to be unfounded, since there is no where in the 
administrative record any recorded incidents to legitimize this 
concern.
    In the case of Navassa, the absence of a pier or convenient 
site to land people and equipment at the island has lead the 
Service to conclude that access is simply too great a 
liability, a conclusion reached despite the fact that Service 
personnel, personnel from private non-profit organizations, and 
local fishermen have routinely and safely landed on the island 
for years.
    Finally, there is a glaring inconsistency between the 
public closures imposed at the Navassa Island and Desecheo 
Refuges and access allowed at other island refuges in the 
Pacific Remote Islands National Wildlife Refuge complex. It is 
indisputable that both islands are valuable ecologically or 
that they are remote and difficult to access. However, three 
island refuges located in the Pacific (Baker, Howland and 
Jarvis) are no less ecologically sensitive. They are, however, 
far more remote from their headquarters in Honolulu than either 
Caribbean island is from their headquarters. Despite ranging 
1,300 to 1,600 miles from Hawaii, these islands are publicly 
accessible via SUPs. The latest SUP was issued for Baker Island 
in 2002.
    A small number of amateur radio operators have sought to 
obtain SUPs from the Fish and Wildlife Service for access to 
these islands. The first applications were filed on November 
26, 2002. In these documents, the applicants sought permission 
to operate amateur radio equipment on the islands for a five 
day period, and they stipulated to a number of conditions 
including that they would ``avoid all wildlife and sea-life on 
or near the island.'' Their applications were denied and their 
appeals of these decisions have been rejected. Since that time, 
they have met with the Fish and Wildlife Service and have 
agreed to assume all financial costs (including any 
reimbursement to the Fish and Wildlife Service), to waive 
liability for any injuries that may occur during their visit 
and to comply with all reasonable stipulations required by the 
Service.
    H.R. 1183 is designed to codify a SUP in this case by 
requiring the Service to provide recreational access to Navassa 
and Desecheo with certain limitations. These restrictions are: 
the Fish and Wildlife Service may limit access to Desecheo and 
Navassa to specific time periods; the Service shall give 
priority consideration to permit applications that do not 
negatively impactopportunities for wildlife-dependent 
recreation; and the Service may establish specific conditions for the 
permit that are necessary to protect fish and wildlife resources or 
public health and safety.

                            COMMITTEE ACTION

    H.R. 1183 was introduced on March 9, 2005, by 
Representative Nick J. Rahall II (D-WV). The bill was referred 
to the Committee on Resources, and within the Committee to the 
Subcommittee on Fisheries and Oceans. On October 19, 2005, the 
Full Resources Committee met to consider H.R. 1183. The 
Subcommittee on Fisheries and Oceans was discharged from 
further consideration by unanimous consent. No amendments were 
offered and the bill was ordered favorably reported to the 
House of Representatives by unanimous consent.

            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, credit 
authority, or an increase or decrease in revenues or tax 
expenditures. According to the Congressional Budget Office, 
enactment of this bill could increase offsetting receipts and 
direct spending by less than $500,000 a year.
    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:

H.R. 1183--A bill to require the Secretary of the Interior to provide 
        public access to Navassa National Wildlife Refuge and Desecheo 
        National Wildlife Refuge

    H.R. 1183 would direct the U.S. Fish and Wildlife Service 
(USFWS) to allow public use of the Navassa National Wildlife 
Refuge and the Desecheo National Wildlife Refuge, both of which 
are located on islands in the Caribbean Sea. Under the 
legislation, the agency would provide access to the two refuges 
under permits that would contain provisions to protect local 
fish and wildlife and public health and safety.
    Assuming appropriation of the necessary amounts, CBO 
estimates that the federal government would incur one-time 
costs of about $10 million over the next two years to provide 
safe access to Navassa and Desecheo islands. About $8 million 
of this amount would be used by the Department of Defense to 
inspect Desecheo (which was once used for military training) 
and remove any unexploded ordnance. (This expenditure would 
probably occur even in the absence of legislation, depending on 
future appropriation action, but not for several years.) The 
remaining funds would be used to construct minimal access and 
other visitor facilities on the two islands.
    We expect that, once the islands have been deemed safe and 
accessible, the USFWS would use existing authority to impose 
recreation or special-use fees and spend the proceeds to issue 
permits and escort visitors to the islands. We estimate that 
these activities would increase offsetting receipts and 
resulting direct spending by less than $500,000 a year. 
Enacting H.R. 1183 would not affect other direct spending or 
revenues. This estimate is based on information provided by the 
USFWS and the Army Corps of Engineers.
    Finally, allowing more people to visit the Desecheo refuge 
(which might contain unexploded ordnance even after Corps 
inspections) could increase the government's liability under 
the Federal Tort Claims Act, but CBO has no basis for 
predicting the likelihood that future visitors to the islands 
would be injured.
    H.R. 1183 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Deborah Reis. 
This 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

    If enacted, this bill would make no changes in existing 
law.

                                  
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