<DOC>
[107 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:83726.wais]
S. Hrg. 107-1004
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2003: REVIEW OF
ENVIRONMENTAL PROTECTION MANDATES
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
ON
REVIEW OF SECTIONS 2105, 2016, 2017(a)-(b), 2108 AND 2019 OF S. 2225, A
BILL TO AUTHORIZE APPROPRIATIONS FOR FISCAL YEAR 2003 FOR MILITARY
ACTIVITIES OF DEPARTMENT OF DEFENSE, TO PRESCRIBE MILITARY PERSONNEL
STRENGTHS FOR FISCAL YEAR 2003
__________
JULY 9, 2002
__________
Printed for the use of the Committee on Environment and Public Works
______
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred seventh congress
second session
JAMES M. JEFFORDS, Vermont, Chairman
MAX BAUCUS, Montana BOB SMITH, New Hampshire
HARRY REID, Nevada JOHN W. WARNER, Virginia
BOB GRAHAM, Florida JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut CHRISTOPHER S. BOND, Missouri
BARBARA BOXER, California GEORGE V. VOINOVICH, Ohio
RON WYDEN, Oregon MICHAEL D. CRAPO, Idaho
THOMAS R. CARPER, Delaware LINCOLN CHAFEE, Rhode Island
HILLARY RODHAM CLINTON, New York ARLEN SPECTER, Pennsylvania
JON S. CORZINE, New Jersey PETE V. DOMENICI, New Mexico
Ken Connolly, Majority Staff Director
Dave Conover, Minority Staff Director
(ii)
C O N T E N T S
----------
Page
JULY 9, 2002
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana......... 49
Boxer, Hon. Barbara, U.S. Senator from the State of California... 51
Corzine, Hon. Jon S., U.S. Senator from the State of New Jersey.. 52
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 7
Jeffords, Hon. James M., U.S. Senator from the State of Vermont.. 1
Lieberman, Hon. Joseph I., U.S. Senator from the State of
Connecticut.................................................... 50
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire.... 3
Warner, Hon. John W., U.S. Senator from the Commonwealth of
Virginia....................................................... 5
Wyden, Hon. Ron, U.S. Senator from the State of Oregon........... 52
WITNESSES
Clark, Jamie Rappaport, senior vice president for conservation
programs, National Wildlife Federation......................... 26
Prepared statement........................................... 76
Responses to additional questions from Senator Smith......... 93
Cohen, Bonner, senior fellow, Lexington Institute, Arlington, VA. 28
Prepared statement........................................... 106
Fallon, Adm. William, Vice Chief of Naval Operations, U.S.
Department of the Navy......................................... 10
Prepared statement........................................... 53
Responses to additional questions from:
Senator Smith............................................ 56
Senator Warner........................................... 58
Foglesong, Gen. Robert H., Vice Chief of Staff, U.S. Air Force... 10
Prepared statement........................................... 73
Responses to additional questions from Senator Smith......... 76
Henkin, David, staff attorney, EarthJustice, Honolulu, HI........ 29
Prepared statement........................................... 108
Responses to additional questions from Senator Smith......... 127
Hurd, William, Solicitor General, Office of the Attorney General,
Richmond, VA................................................... 31
Responses to additional questions from Senator Smith......... 207
Keane, Gen. John M., Vice Chief of Staff, U.S. Army.............. 10
Prepared statement........................................... 63
Responses to additional questions from Senator Smith......... 67
Miller, Dan, First Assistant Attorney General, Natural Resources
and Environment Section, Colorado Department of Law, Denver, CO 32
Prepared statement........................................... 128
Responses to additional questions from Senator Smith......... 138
Phillippe, Stanley, Division Chief, Office of Military
Facilities, Department of Toxic Substances Control, Region 3,
on behalf of the Association of State and Territorial Solid
Waste Management Officials (ASTSWMO)........................... 34
Prepared statement........................................... 157
Williams, Gen. Michael J., Assistant Commandant of the Marine
Corps.......................................................... 10
Prepared statement........................................... 67
Responses to additional questions from Senator Smith......... 73
ADDITIONAL MATERIAL
Articles:
A Fuel of Cold War Defenses Now Ignites Health Controversy,
Perchlorate Runoff Makes Way to Water Supply of Millions;
Pentagon Clashes With EPA.................................151-156
Group Calling for Cleanup of Perchlorate in Aberdeen......... 149
Md. on Battle Line Over Water Pollutant...................... 146
Charts:
Camp Pendleton Cost with Restrictions........................ 69
Encroachment Impacts--Training Degradation at MCB Camp
Pendleton.................................................. 71
Red Beach Restrictions....................................... 69
Fact Sheets:
Backgrounder on the Readiness and Range Preservation
Initiative's Proposed Exemptions from the Clean Air Act.... 89
Conserving Imperiled Wildlife at Military Bases: DOD has not
Identified any Problems Justifying an ESA Exemption........ 83
DOD Fiscal Year 2002 Authorization, Foothill Tollroad Rider.. 87
DOD has a Long History of Working Successfully with the ESA.. 85
National Wildlife Federation, Oppose any Amendments to S.
2225 that Would Exempt DOD from the Endangered Species Act
or Other Environmental Laws................................ 82
The Kolbe Amendment.......................................... 88
Title IXV-UTTR--A Backdoor Attack on Utah Wilderness in
Defense Authorization Act H.R. 4546........................ 86
Letters from:
Association of State Territorial Solid Waste Management
Officials (ASTSWMO), Washington, DC........................ 100
Department of Defense, Richard B. Myers...................... 12
National Association of Attorneys General, Washington, DC.... 98
State and Territorial Air Pollution Program Administrators/
Association of Local Air Pollution Control Officials....... 91
State of Colorado Department of Law Office of the Attorney
General, Denver, CO........................................ 98
The Environmental Council of the States...................... 96
Policy Position, National Governors Association.................. 103
Reports:
Fish and Wildlife Services's Findings Regard Adequacy of
INRMPs in Hawaii..........................................115-126
GAO, Military Training, DOD Lacks a Comprehensive Plan to
Mange Encroachment on Training Range, June 2002...........159-206
Statement, National Conference of State Legislatures............. 101
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2003: REVIEW OF
ENVIRONMENTAL PROTECTION MANDATES
----------
TUESDAY, JULY 9, 2002
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 2:30 p.m. in room
406, Senate Dirksen Building, Hon. James M. Jeffords (chairman
of the committee) presiding.
Present: Senators Jeffords, Warner, Smith, and Inhofe.
OPENING STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM
THE STATE OF VERMONT
Senator Jeffords. The committee will come to order.
I welcome our witnesses today and note that we have several
who have traveled great distances to attend this hearing. On
our first panel, we will hear testimony from Admiral William
Fallon, who is Vice Chief of Naval Operations. Welcome,
Admiral. On our second panel, we will hear from Ms. Jamie
Clark, from the National Wildlife Federation, former director
of the Fish and Wildlife Service in the Clinton administration.
I note that in Ms. Clark's written testimony that she has
extensive experience with defense matters, including a position
as the fish and wildlife administrator for the Department of
the Army.
We will hear from several State witnesses, Mr. Dan Miller,
First Assistant Attorney General from the State of Colorado;
who is submitting his written testimony on behalf of Colorado
and several other States, including attorneys general of
Arizona, California, the Commonwealth of Massachusetts, Nevada,
New York, Oregon, Utah, Idaho and Washington.
Mr. Stanley Phillippe, from the State of California, will
testify for the Association of State and Territorial Solid
Waste Management Officials and Mr. William Hurd, the Solicitor
General from the Commonwealth of Virginia. We will hear from
Mr. Bonner Cohen, a senior fellow from Lexington Institute. I
am pleased to welcome Mr. David Henkin, who will testify for
EarthJustice. Mr. Henkin has flown here on short notice from
Hawaii. His efforts certainly tell us of the level of interest,
or perhaps I should say concern, with the proposals.
The proposals to which I refer were included in the
Administration's Defense Authorization bill this year. In
effect, these proposals, which are contained in Title XII of
that bill, amend six environmental statutes. Five of these
statutes are within the jurisdiction of this committee.
I am not aware of any precedent for Congress acting in such
a broad, sweeping manner to substantially alter existing
environmental law through freestanding legislation. Moreover,
these proposals were never submitted to the committee, but were
proposed for inclusion in a bill that would not have been
considered by this committee.
Through the wisdom of the Armed Services Committee, I would
particularly like to thank Chairman Levin, these proposals were
not included in the DOD authorization bill, either in committee
or in the final bill passed by the Senate. I understand,
however, that there may be plans to include these provisions
within the upcoming conference of the DOD authorization bill. I
would be sorely disappointed and I would oppose such an effort.
I also would like to note that Senator Lieberman, who is a
member of the Armed Services Committee, may not be able to
attend the hearing today. Nevertheless, I am authorized to say
that the Senator opposes these proposals on such procedural and
substantive grounds, and that he intends to oppose any efforts
to advance the proposals in conference. Already I have received
a large volume of letters expressing concern with the scope and
eventual effects of these proposals should they become law.
Even without the benefit of testimony we will hear today, I
am already aware that these proposals as drafted present
concerns, particularly for the States, and also for citizens
living near Federal training facilities. These proposals are
complex and should be carefully examined by experts in both
Federal and State law. Moreover, since many environmental laws
contain provisions that favor Federal facilities by allowing
for exemption, when the President declares an exemption to be
in the national interest, we must carefully examine the need
for these proposals.
I am not aware of many instances, if any, where the defense
agencies that sought the waivers available to them under
current law. Instead, the Agencies now seek permanent waivers
of the laws that apply to their facilities. Congress intended
the environmental laws to apply to the Federal facility. If any
other entity were asking for a permanent exemption from
environmental law, we would afford no less scrutiny to their
proposals.
So I would like to make clear that by conducting this
hearing today, I do not intend to clear the way for these
proposals to be added to the DOD bill in conference. I agreed
to hold a hearing on these proposals when the Ranking Member
filed them as amendments to our water infrastructure bill
earlier this year. Frankly, I believe that amendment would have
been defeated at that time. But rather than to put it to a
vote, I agreed instead to conduct a hearing, consistent with my
desire to proceed in a regular order on matters within this
committee's jurisdiction.
It is my strong belief that if these proposals move through
this Congress or any future Congress, they should be backed by
a convincing demonstration of need and should be scrutinized,
drafted and considered by the committee. The threshold for a
demonstration of need will be quite high.
Finally, there are two provisions amending the Endangered
Species Act and Migratory Bird Treaty Act that are currently in
the House version of the DOD authorization bill. I have
received numerous letters of concern about these provisions,
and I am aware that no committee of jurisdiction over these
statutes has examined these proposals to evaluate these
concerns.
With so little information to back them, it is unfortunate
that these provisions appear in the House bill. As such, I am
opposed to their inclusion in the final DOD authorization bill.
I look forward to hearing the testimony here today. I would
note that some of our witnesses may have chosen to speak to the
provisions contained in the Administration's proposal to amend
the Marine Mammal Protection Acts. This is a statute not in our
jurisdiction. This subject was not within the scope of the
bipartisan official notice for today's hearing. So I will ask
the witnesses to confine their remarks to these areas of the
proposal that are the subject of the hearing here today.
With that, I turn to my good friend from New Hampshire.
OPENING STATEMENT OF HON. BOB SMITH, U.S. SENATOR FROM THE
STATE OF NEW HAMPSHIRE
Senator Smith. Thank you, Mr. Chairman.
I thank all the witnesses for being here today. I believe
it's the first time that all four of the services have been
represented at the joint chiefs level committee hearing,
outside the Armed Services Committee, but I might be wrong on
that. But we're certainly honored to hear your testimony today.
Let me just clarify for my own perspective here, this is
not, at least in my view, Mr. Chairman, a hearing on any bill
or any proposal or any initiative at all. It's an opportunity
to hear both sides of a very delicate issue. It's a chance to
look at the conflicts and try to work them out. I am not a
sponsor of any proposal or any initiative, any bill whatsoever
to draw any conclusions.
But sometimes there are obstacles to training, which I
think we as a Congress have to address, whether right or wrong.
We have to make the decision as to whether there is some reason
why there is some obstacle out there that keeps us from
training. We saw one that wasn't really an environmental
obstacle, it was a concern at Vieques, where there were some
concerns expressed about human beings not animals. So these
things do come up.
My purpose in being here is to try to address these issues
in a way so we can hear from those folks who are trying to
defend our country, to see where there may be problems we can
work out. I have been on numerous military installations in my
tenure in the Congress, and every time I've been there I've
seen great efforts taken to try to be very sensitive to the
environment and to the wildlife and habitat that are on those
military installations. Indeed, spent a few years at sea during
the Vietnam War and also saw even then attempts to avoid
confrontation with sea mammals.
So it's up to us, really, to appropriately balance those
goals for defense and environmental protection. I think frankly
the military has done that. But I think there are times when
these things do come up in conflict. It's important to note
also that during the last, I will just take one issue, Mr.
Chairman, with you. During the last 16 months, service
witnesses, military, have appeared before Congress to speak to
encroachment issues at 5 different hearings, the Subcommittee
on Readiness and Management of the Senate Armed Services
Committee, on March 20, 2001, the House Committee on Government
Reform on May 9, 2001, May 16, 2002 in the Subcommittee on
Military Readiness in the House Armed Services Committee, May
22, 2001 and March 8, 2002. So there have been hearings and it
has been out there. It's true, we have not dealt with it at
all.
I will be very brief, but I think just to mention a couple
of specifics. The Migratory Bird Treaty Act. In March of this
year, the District of Columbia Circuit Court held that military
training should be halted if it could result in the incidental
death or injury of a single migratory bird, not necessary an
endangered species. So it could be a seagull, a duck or any
other species that may not be an endangered species. While this
decision directly affects training exercises on an island in
the South Pacific, the decision could be used to halt training
at every military base in our Nation.
I think we just need to look at these issues and see
whether the military is responding properly or not. It's my
understanding the Migratory Bird Treat Act was intended to
apply to hunting of migratory birds, not to unintended or
incidental harm. Intentional damage is one thing, unintentional
is another. The Pentagon has asked the Congress to restore the
interpretation of that Migratory Bird Treaty, so that they
understand and have clarification as to what is expected of
them.
I think it's reasonable, Mr. Chairman, to hear from the
military on this and find out where there are confrontations or
where there could be confrontations or where there is conflict,
and we'll try to address it. Thank you.
[The prepared statement of Senator Smith follows:]
Statement of Hon. Bob Smith, U.S. Senator from the State of
New Hampshire
Thank you, Mr. Chairman, for working with me and honoring the
request of this side for this very important hearing. I want to welcome
some of our most senior military leaders to today's hearing. Welcome to
Admiral Fallon, General Keane, General Foglesong and General Williams.
I understand that today is the first time all four services have been
represented at the Joint Vice Chiefs of Staff level in any hearing
outside the Armed Services Committee--we are honored to have you here
to testify. The purpose of this hearing is to consider DoD's Readiness
and Range Preservation Initiative. Mr. Chairman, we are at war--and
thus far we have been blessed to have so few casualties. A primary
reason for that is the tremendous training that our soldiers get before
going into battle. Training saves lives. Unfortunately, there are
obstacles to this training that we must address. The Readiness and
Range Preservation Initiative balances two of our country's priorities:
national defense and protecting the environment. It is up to us in
Congress to clarify how to appropriately balance these goals of
national defense and environmental protection.
It is important to note that this legislative proposal does not
contain exemptions or sweeping rollbacks of environmental law. The
proposal instead keeps DoD subject to environmental laws and tries to
clarify how DoD can achieve its day-to-day readiness mission in balance
with environmental stewardship.
Let me talk a little about the specifics of the proposal. First,
the Migratory Bird Treaty Act. In March of this year, a D.C. Circuit
court held that military training should be halted if it could result
in the incidental death or injury of a single migratory bird. There are
numerous migratory birds. While this decision directly affects live
fire training exercises on an island in the South Pacific, this
decision could be used to halt training at every military base in our
Nation. That cannot occur. The Pentagon is asking to restore the
interpretation of the Migratory Bird Treaty Act that has existed for 83
years prior to the recent court ruling. The Migratory Bird Treaty Act
applies to hunting of migratory birds. The Migratory Bird Treaty Act
was never intended to apply to unintended, incidental harm to migratory
birds.
Our military is also requesting clarification that there is no need
to designate critical habitat under the Endangered Species Act at
military installations which have an Integrated Natural Resources
Management Plan. These plans are required by another environmental law,
the Sikes Act, which only applies to the military. The Sikes Act
requires the military to holistically address conservation of a
military base's natural resources. This requested clarification is
supported by the U.S. Fish and Wildlife Service, and confirms existing
policy of the last two Administrations.
DoD is also requesting clarification that munitions fired on
operational ranges are not solid waste or releases requiring cleanup
under the Resource Conservation and Recovery Act as well as the
Superfund law. Most of what DoD is requesting simply codifies an
Environmental Protection Agency regulation called the Military
Munitions Rule. Some litigants are claiming that after a round is fired
on an operational range, any material that is left on the range should
be immediately subject to clean up under these laws. There is no way to
clean up the range without halting training activities. What makes
sense is to apply these remediation laws when the range is no longer
operational. For those unusual circumstances when an actual
endangerment exists on an operational range or there are significant
offsite environmental consequences, then existing authorities under
Superfund and the Safe Drinking Water Act can be used.
The military is also requesting clarification on the ``general
conformity'' requirement under the Clean Air Act, which is only
applicable to Federal agencies. They are requesting a 3-year compliance
window to ensure that proposed military readiness activities conform to
the applicable State Implementation Plan. This flexibility will
facilitate new Base Realignments and Closings in 2005, which will
substantially reduce DoD's aggregate air emissions.
Finally, the DoD is requesting clarification on the vague
definition of harassment under the Marine Mammal Protection Act, which
currently includes imprecise terms such as annoyance or the potential
to disturb. This clarification is consistent with the recommendation of
the National Research Council, and was developed by the Departments of
Commerce, Interior, and Defense under the last two Administrations.
Mr. Chairman, these are all reasonable and responsible legislative
proposals that recognize both the need to properly train soldiers and
the responsibility to be good stewards of the environment. Thank you
again for holding this hearing today.
Senator Jeffords. Thank you, and we welcome the witnesses
again.
Senator Warner. May I say a few words?
Senator Jeffords. Certainly, Senator Warner. Please
proceed.
OPENING STATEMENT OF HON. JOHN W. WARNER, U.S. SENATOR FROM THE
COMMONWEALTH OF VIRGINIA
Senator Warner. I joined Senator Smith and Senator Inhofe
in requesting the chair for this hearing. Because I have
certain responsibilities as the Ranking Member of the Armed
Services Committee, particularly with regard to the forthcoming
conference, where we have in the House bill certain provisions
which will be addressed in that conference. I felt it important
that we have the record of this committee to use as a guide in
conference. We will somehow, Mr. Chairman, reconcile with
Senator Levin and yourself a means by which to address these
issues in the conference, so that it does not appear or set a
precedent that we're overriding the responsibility of this
committee, a committee on which I have been proud to serve for
many, many years.
So having said that, I want to comment a little bit, take a
word from the Ranking Member's opening statement, balance.
That's what we have to achieve. The men and women of the Armed
Forces are good stewards of our environment. I think per capita
there are probably more outdoorsmen in the organization of our
U.S. military than any other organization of the Federal
Government. They have respected it all these many year.
Now we, because of the encroachment of the buildings around
our bases, which were once located in remote areas but now are
surrounded often by cities and towns, we have to use certain
ranges, we're restricted, we just can't pick up and move
another distance and find another range. We've got to do it in
a manner that's consistent with the framework of environmental
laws.
Mr. Chairman and members of this committee, one thing, if
we stop to think of why Congress exists, it certainly exists to
train and equip and protect those who proudly wear the uniform
of this country, those who are called on at any hour of the day
to go beyond our shores and defend the freedom of this Nation.
Indeed now, we're about to witness a new command here in the
United States, CINCNORTH, that will marshal certain military
assets to protect us here at home. Training is indispensable.
Now, I would hope as we focus on these issues that we do no
violation to the body of environmental laws that has taken
generations to buildup and which are so important for the
present and future of this country. But we have to recognize
that where training of the military and national security
interests are existing, we have to determine how we can make
such modifications to those environmental laws that will enable
the training to go forward but not set a precedent that those
exceptions can be applied in other areas of our life here in
this country, whatever it may be. In other words, we have to
draw these laws that we may make, and hopefully will make, to
permit the training to go forward in such a way that it does
not establish a precedent for widespread abuse or change in
this general body of environmental law.
So I thank the chair and I thank the Ranking Member for
arranging this hearing. As I understand, Mr. Chairman, I
followed your opening comments to the witnesses. Once again,
with regard to the Solicitor General's Office of Virginia, what
was your ruling on that?
Senator Jeffords. That we would hear his testimony.
Senator Warner. I thank the chair, because clearly we have
an important rule in this committee with regard to prior
submission of testimony that should be followed. But I view it
as a personal courtesy to myself and the Governor that the
exception would be made.
Senator Jeffords. I am pleased to do so.
Let me start off by saying as a retired Navy Captain, and a
gunfire support gunnery officer on a destroyer, I'm impressed
by having this opportunity to hear the testimony of such a
distinguished panel of general officers, which I never would
have dreamed of in my earlier years.
Senator Inhofe. Mr. Chairman.
Senator Jeffords. Senator Inhofe, if you desire to make an
opening statement, now is the time to make it.
Senator Inhofe. Thank you.
Senator Warner. Well, we did want to state for the record
that the chairman served in the Navy, active duty for 3 years
on destroyers, stayed in the Reserves, obtained the rank of
Captain, and I see that knowledge and background being brought
to bear on this issue, the expertise.
Senator Inhofe. Here I am, the only Army guy with three
Navy guys.
[Laughter.]
OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM
THE STATE OF OKLAHOMA
Senator Inhofe. I didn't mean to interrupt you, Mr.
Chairman, I just landed and just got up here and am a little
out of breath. I do have a lengthy statement, which I'll spare
you, and make that as part of the record.
I am very much concerned. Of all the services represented
here today, I have visited ranges and training areas. I have
personally witnessed the problems that are there. I think the
first introduction that I had, General Williams, was in Camp
LeJeune. That was when they were putting the ribbons around the
suspected habitat of the red-cockaded woodpecker. At that time,
I'm trying to get it worded properly and apparently I won't be
able to do it, but the environmental compliances at that time
were actually exceeded, the cost of that exceeded what we were
paying for ammunition.
It's something that is very critical, I think probably the
majority of us at this table feel that we need to enhance our
military. We have a lot of areas, modernization, quality of
life, MILCON, that are really suffering right now, and we need
to do something about it. It's to the point where you can't do
it at the expense of one or the other. The bottom line, I
think, Senator Warner, is it's just going to have to be
increased at some point if we're going to carry out the
expectations of the American people.
As I see the problem, you folks are such good stewards of
the environment you're creating more of a problem for
yourselves. I know this is true, I could use Fort Bragg, Camp
LeJeune, and use the red-cockaded woodpecker example, that
because of the fact that you have done such a good the breed
has increased to the point that you're using up more of your
training area because you've done such a good job. Something
has to give.
We have to at this time right now, we're at war, we're
going to be at war for a long time. We have to put our
priorities down, put as the No. 1 priority for what we're
supposed to be doing here in Washington is to defend our
country. That's what we're in the middle of doing right now. I
really believe, even Mr. Chairman, if this were something that
was temporary, to be able to set aside some of these onerous
regulations, to allow you to properly train our young people
who are going into battle, so that lives will be saved. I can't
think of anything that is more important that we're supposed to
be doing than that.
So I'm glad we're finally having this hearing. We have
talked about this for a long period of time. I'm hoping that as
a result of this hearing, we're going to be able to quantify a
lot of things we had not been able to quantify before as to
what the real cost to our training comes to in terms of what
sacrifices we have to make, what our young people going into
battle might be lacking as a result of this, so that we can get
down and let the American people know. I've often said that all
we really need in this committee is cost-benefit analysis, and
let the public know what this is costing and what the benefits
are, and let them help us make a decision. Hopefully this
committee hearing today will help us to do that.
Thank you, Mr. Chairman.
[The prepared statement of Senator Inhofe follows:]
Statement of Hon. James M. Inhofe, U.S. Senator from the
State of Oklahoma
Good afternoon. Having worked closely with Senators Smith and
Warner to request via letter this hearing on the Range Readiness and
Preservation Initiative of the Department of Defense, and after much
delay, I am glad that we are finally all here today. I am thankful that
the initial decision of the chairman to deny our request for a hearing
has been revisited and wisely overturned.
I am extremely pleased and honored to see the Vice Chiefs of Staff
of our Armed Forces all here today. I feel that their presence is
invaluable. I believe the presence of these fine gentlemen most
definitely signals the importance the Department of Defense places on
this issue. It is all the more impressive that they have taken the time
to come here today during a time of war on terrorism. In addition, I
understand that this hearing represents the first time that the Vice
Chiefs have ever testified together other than before the Armed
Services Committees. Thank you all, and good to see you.
I have a great deal of concern about the issues of range readiness
and preservation which are before us today. I served as the chairman of
the Readiness Subcommittee of the Senate Armed Services Committee for 4
years and currently serve as ranking member of the Readiness
Subcommittee. Indeed, I served in the Army decades ago, and we just did
not have the readiness problems then that we face today. These problems
are caused by an ever-growing maze of environmental procedures and
regulations in which we are losing the ability to prepare our patriot
children, our war fighters, for war. Speaking of children, I have 4
children and 11 grandchildren. I want them to have to have clean air,
fresh water, and pure soil. I want them to have abundant flora and
flourishing fauna.
That brings me to the thesis for this hearing. That is: The God-
given rights and liberties and free market capitalism that our military
defend around the world translate directly into cleaner air, fresher
water, purer soil, abundant flora, and flourishing fauna. The simple
fact is that freer nations have higher standards of living, and, very
significantly, that includes attaining higher environmental standards.
Simply put: Enabling our military HELPS God's green earth.
With that straightforward truth in mind, let's examine the makeup
of today's hearing. Opposing our military today are the usual troika of
(1) Government employee organizations, (2) Lawyers/trial lawyers, and
(3) Eco-radicals.
First we have the government employee organizations. These
bureaucrats are always concerned with the prospect of lost jobs.
Innovative and improved paperwork processes can certainly achieve a
better bang (pun intended) for our taxpayer dollars. More efficient
government can result in smaller government with fewer employees. It is
no coincidence that government employee groups routinely oppose these
government innovations and improvements, and indeed support more
cumbersome and paperwork-intensive regimes focused on more procedural
hurdles rather than improved results and better performance. They want
more government, not less; to them it means more government jobs.
How many times has ASTSWMO, or like groups such as STAPPA/ALAPCO
testified before Congress, and how many times were they opposing the
streamlining of procedural paperwork? Just recently this committee
heard the government employee group STAPPA/ALAPCO testify as to its
support for the 30+ rulemakings and procedural encumbrances and
increased paperwork of the Jeffords-Lieberman regulatory air
restrictions bill which Senator Voinovich so eloquently explained and
so visually illustrated. Today again we have STAPPA/ALAPCO promoting
big government in the testimony. These groups of government bureaucrats
invariably wind up testifying for bigger government and opposing
smaller government.
To add insult to injury, not only are the salaries of these
individual government employees paid with our tax dollars; quite often
the groups themselves receive separate, additional, appropriated
dollars to pay for the groups themselves and the activities of the
groups. As I say, these activities almost invariably amount to lobbying
for bigger government and more expenditures of our tax dollars with an
emphasis not on better results but rather on more procedures. We have
thus created a self-perpetuating, government-bloating apparatus. This
must stop. We have to cease the big-government funding for lobbyists
for big-government funding.
Second we have the lawyers. The self-interested bands of government
bloaters are invariably joined by the trial lawyers and their front
groups who see increased opportunities to sue with every single
procedural hurdle they can create. Trial lawyers too are interested in
full employment. For example, these lawyers swear blind allegiance to
the much maligned and tragically flawed CERCLA/Superfund Act. It is no
coincidence that the CERCLA/Superfund Act is commonly called the
``Lawyers' Full Employment Act'' due to the fact that so much money
goes to lawyers, including government lawyers, and so little actually
goes to clean our water and soil. With so many twisted and convoluted
regulatory procedures, and particularly eco-regulatory procedures, we
have created the world's largest maze complete with an invasive species
to run through the maze--the trial lawyer.
Third we have the eco-radical groups. These groups are more
interested in propagating issues for fund-raising than they are in
solving problems. Congressman J.D. Hayworth of Arizona illustrates this
point well. When he asked the Sierra Club for some modest financial
help to save some particular bald eagles in Arizona, the Sierra Club
rejected his coordinating efforts claiming a lack of funds, only to
turn right around and run hundreds of thousands of dollars of TV
commercials attacking him. The eco-radicals didn't solve a situation;
instead they prioritized propaganda.
I'm here to tell you that the troika of these government employee
groups and trial lawyer groups and eco-radical groups and their big-
spending, procedure-obsessed, self-preservation instincts are out of
touch with the vast majority of Americans who want leaner and more
effective government that focuses on and achieves better results. These
groups have a common yearning for more Federal regulations, more
Federal bureaucracy, in other words, more central planning. We have
seen the failures of central planning in the former Soviet Union, and
it is not a good idea to replicate central planning in America.
This is serious business. Our nations's defense is on the line. You
simply cannot prepare for the defense of our nation in an arcade.
Within the past week I have heard complaints from real troops lamenting
the impairment of live-fire training due to the inability to use
ammunition. I am concerned for this generation of our patriot children
and for the future generations of our patriot children. You just can't
give our war-fighting snipers the best training by making them say
``Bang Bang'' instead of actually firing the gun. You just can't give
our war-fighting bombers the best training by making them simply say
``Bombs Away'' rather than actually dropping a bomb. This situation is
actually occurring, and many Americans have not been told of the truth
of the matter.
Well, I say Americans deserve the truth and can most definitely
handle the truth. I see it as my job both as member of this committee,
as well as former chair and current ranking member of the Readiness
Subcommittee of our Armed Services Committee, to inform the American
people.
Now I have come full circle back to my original point that what is
good for the defense of our God-given rights and freedoms the globe-
over is good for the environment that God has created for us.
Do the Communist nations have the best environments? Definitely
not. Look at the environmental disasters of the Communists of the
former Soviet Union created. Do the nations without free markets,
without respect for human rights, and without enforcement of property
rights have the best environments? Definitely not.
When our military defends against the Communists of North Korea we
are defending the environment. When our military defends against the
Communists of North Vietnam we are defending the environment. When our
military defends Kuwait against the dictatorial regime in Iraq, we are
defending the environment. Do you remember the vast oil fires that
Saddam Hussein set with malice toward the environment in the oil fields
of Kuwait?
The American service men and women defend our environment, both
here and around the globe. Let's ready our services. I stand firmly
with our military and look forward to the testimony of the Vice Chiefs.
Senator Jeffords. Thank you for your statement.
With this, I welcome General John M. Keane, General Michael
J. Williams, and General Robert H. Foglesong to the table to
join Admiral Fallon. Admiral Fallon, your entire written
statement will be made a part of the record in this hearing.
Please proceed with your remarks.
Senator Warner. Mr. Chairman, could I inquire, do the other
vice chiefs of staff have statements, and could they not be
admitted to the record likewise, immediately following that of
Admiral Fallon?
Senator Jeffords. They will be made a part of the record.
Senator Warner. I thank the chair.
STATEMENT OF ADMIRAL WILLIAM FALLON, VICE CHIEF OF NAVAL
OPERATIONS, U.S. DEPARTMENT OF THE NAVY, ACCOMPANIED BY:
GENERAL JOHN M. KEANE, VICE CHIEF OF STAFF, U.S. ARMY; GENERAL
MICHAEL J. WILLIAMS, ASSISTANT COMMANDANT OF THE MARINE CORPS;
GENERAL ROBERT H. FOGLESONG, VICE CHIEF OF STAFF, U.S. AIR
FORCE
Admiral Fallon. Mr. Chairman, distinguished members of the
committee, I'm very, very grateful for the opportunity to be
here today with my colleagues, the other Vice Chiefs of the
Services, to address this very important issue of readiness and
range preservation. In a nutshell, the most critical issue for
us is that the requirement to train to enable us to achieve
readiness is increasingly challenged by the interpretation of
some of the environmental regulations that are on the books
today.
We are involved in this global war on terrorism. We feel it
is absolutely imperative that we train our people to the best
of our ability, and to provide them with the tools to be
effective in combat and to preserve their lives when they go
forward to serve this Nation. To do that, we need to preserve
ranges and facilities to enable us to train these people.
Increasingly, we find encroachment of different kinds are
making this very difficult. The interpretation again of some of
these legislative endeavors is prohibiting in many cases, and
severely restricting our training operations around the world.
We are absolutely committed to both imperatives of readiness
for our forces and conservation of our environment. Although
there's a relatively small amount of Federal land that's
actually involved in military training, for the Navy, about 1
percent of all Federal lands are used by us for military
purposes, we're finding that this is a challenge. It's the
interpretations rather than the acts themselves that are the
issue.
If I could give you a couple of examples that impact
readiness. The first, the designation as critical habitat under
the Endangered Species Act is a bar to land use for military
training activities. The trend is to take these areas, and
identify them as critical habitats for individual species. In
reality today, as a result of the Sikes Act passed some years
ago, all of the services use integrated natural resource
management plans, INRMPs. These plans are required in all areas
in which we have bases and operations. These acts in fact
consider the entire environment, not just a single species that
is typically addressed in critical habitats. But these plans
exist and are in fact very effective in not only preserving the
environment but promoting species, as several of you have
identified already today, the growth and enhancement of these
species.
The second example I'd like to bring to your attention is
this Migratory Bird Treaty Act. It was recently cited by a
court to issue an injunction against Navy training out in the
Northern Mariana Islands of Guam and Farallon de Medinilla
because of the possibility of incidental take of migratory
birds.
Mr. Chairman, in deference to your request to not address
the Marine Mammal Protection Act, I'll forego that and just
move on to state a fundamental request. That is that we would
like to attempt to restore balance, as Senator Warner
mentioned, balance between conservation and environmental
concerns which are at the highest priority, and also our
requirement by law to train our people to prepare them for
combat. We believe that we can do both.
Mr. Chairman, I have a letter here sent to Mr. Levin by
General Myers, the chairman of the Joint Chiefs, I believe you
may have it, but I'd like to have this entered into the record.
This is a letter of support for this readiness and range
preservation initiative that he asked me to bring over.
Senator Jeffords. It will be accepted and made part of the
record. Thank you.
[The letter follows:]
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Admiral Fallon. Thank you very much, Senator.
In summary, sir, I would like to thank you and to state our
appreciation for allowing us to be here today and for your
consideration of this initiative. We stand ready to respond to
your questions, and we believe that a balance between the issue
of readiness and conservation is clearly in the best interests
of all Americans and very achievable. Thank you very much,
Senator.
Senator Jeffords. Thank you.
We will now proceed with some questions. Admiral Fallon,
you noted in your testimony that training and testing on ranges
is increasingly constrained, and that ``encroachment has
reduced the number of days available for training, caused
temporary or permanent loss of range access, decreased
scheduling flexibility and driven up costs.'' However, in a
study released just this month, the GAO made four findings
undermining these claims. I'd like you to respond.
First, DOD has not completed an inventory of its own
training facilities. According to the GAO, commanders sometimes
find out about other training facilities by chance. Second, GAO
found that the Department does not know what its own training
requirements are. GAO found that military service has not
``comprehensively reviewed available range resources to
determine whether assets are adequate to meet need.''
Third, the GAO concluded that the Pentagon has no data
showing that the encroachment has increased costs, no
installation GAO visited could provide data on costs incurred
as a result of encroachment. In fact, the studies showed that
the costs for environmental compliance had declined. Finally,
and I believe most importantly, GAO reported that the services
demonstrated no significant reduction in readiness as a result
of the encroachment.
How can you justify your claim that these exemptions to
environmental laws are warranted when there has been no
evidence, not even a study, on what the problem is?
Admiral Fallon. Mr. Chairman, if I could touch on your last
comment about exemptions. We're not asking for exemptions.
We're asking for a clarification of definitions, in our case,
very narrow applications of particular words, so that the
individual courts don't feel a requirement to make an
interpretation on each particular issue, that they can have
some guidance and help in this area.
If I could give an anecdote. This recent case in which the
island, Farallon de Medinilla, north of Guam, where training
was prohibited, the presiding judge felt that his reading and
understanding of the law left him little room but to issue this
injunction. But he urged the Navy to seek legislative relief to
clarify this particular issue.
But back to your initial statement, I have not seen this
GAO report and can't take issue with every point. I can only
tell you that from my own experience in the last couple of
years, my previous assignment, I was down at the Second Fleet
in Norfolk, and as such charged with the training and
preparation of our forces, sailors and marines, for their
overseas deployments in the Atlantic Coast. I can tell you that
the impact, the fallout of the loss of Vieques for live
ordnance training caused us to do a very, very comprehensive
search of every available training area. I and my staff
personally looked at every single facility from the Mexican
border all the way to Maine and beyond in an attempt to find
appropriate places to do our training.
So I'm not sure where the statement is coming from that we
don't have an idea what's out there. We certainly did a
comprehensive search for places.
The impact of not having this training available, I can
tell you for certain, has had a great financial impact and a
real impact in terms of time and that's certainly money to us,
and an impact to the taxpayer because we were forced to send
the fleet to other areas well beyond the traditional training
places in an attempt to do some kind of workaround makeup
training to come to grips with the fact that we couldn't use
those territories.
So I haven't seen it, and I welcome the opportunity to take
a look at this report.
Senator Jeffords. We'll make sure you get a copy of the
report. You should have that.
General Keane. Could I add something to that, Mr. Chairman?
Senator Jeffords. Yes, General.
General Keane. First of all, the Army knows where its
ranges are, and we also know what our training requirements
are. I can make that statement unequivocally to you. So I do
take issue with the GAO report. I haven't seen it myself
either.
It is true that we have not documented the readiness
degradation that's taken place as a result of environmental
impact. But we all know it's there. I commanded Fort Bragg,
which is the home of our special forces and our paratrooper
forces. Every month, I had to provide a readiness report to the
U.S. Army leadership. In that, I mentioned the impact of the
endangered species that we were managing at Fort Bragg.
Even common sense would tell you, the restrictions that
were imposed on us at Fort Bragg, and by the way, that is one
of 12 installations where we're managing 14 critical habitats.
Let me just read you some of the restrictions, what I mean by
common sense will tell you the impact it's having on us.
Around every cavity tree, which are plentiful in number and
cover the vast majority of the 130,000 acres that we have, we
are not allowed, we have a 200-foot buffer around each tree.
There is no bivouacking or occupation for more than 2 hours,
there is no use of camouflage, there is no weapons firing other
than 762 and 50 caliber blank ammunition, there is no use of
generators, no use of riot agents, no use of smoke grenades, no
digging. That's tough on an Army, no digging. No vehicles
closer than 50 feet.
The impact of that is profound. When you're out there
facing a soldier day in and day out and you're looking at the
frustration that the leaders have, because they're doing things
in areas where they know they shouldn't be training, because
it's unrealistic for them to be there, or they're at a time of
day where they know they probably would not be doing this kind
of activity, because they're trying to keep the noise down and
protect the cavities and so on. We have great difficulties
facing those soldiers and dealing with the reality of that
impact on them.
I think what we're saying is, we have been good stewards of
the environment. We were downright polluters at one time. I
won't hide that from you. As the consciousness of America was
aroused in terms of protecting our natural resources, so was
the consciousness of the U.S. Armed Forces. Most of us, while
we are in this position in the Pentagon, we've spent the last
10 or 15 years out there dealing with this issue ourselves,
protecting our natural resources and the environment ourselves.
We have seen the ever-increasing tension, and we have this
collision of two national priorities. One is to protect our
natural resources and the other one is the national defense.
They are colliding, in our professional military judgment. It
is out of balance and out of whack.
To give you a couple more examples, the U.S. Fish and
Wildlife Service is about to declare 145 plant species in
Hawaii as endangered species and will have to declare a
critical habitat. That will bring our Hawaii training program
to its knees. It's already suffering, we have a $25 million
range there that's never open, and for the last 3 years, the
Makua range has been closed. We just recently opened it because
of the war on terrorism.
We have these impacts on us. We are very concerned about
what is taking place with the expansion of environmental laws
as they pertain to unexploded ordnance. There is a lawsuit
pending in Alaska, and it revolves around a section of land
referred to as Eagle Flats, which in our vernacular is an
operating impact area where we fire artillery munitions into
it. The lawsuit entails declaring the unexploded munitions and
the other constituent munitions, the residue from munitions
that are exploded, as hazardous and solid waste. If that is a
fact, if that becomes a reality, it would render that range
inoperable for us, as it would put all other 400 operating
ranges that the U.S. Army has, as well as the other services,
in jeopardy.
So we're here not just because of what is happening now and
the challenges of the past, we're here looking at the future
and telling the committee that there are serious challenges out
there. What we're trying to avoid is a calamity. We don't want
to send a single soldier, airman or marine into combat not
properly trained, and to deal with the reality of what combat
is all about.
I talked to a young soldier who fought in the Battle of
Anaconda. He hailed from the 10th Mountain Division, he was
wounded, in Walter Reed. The kind of fighting that Mike
Williams' troops do and the Army does is fundamentally about a
test of wills and skill. This soldier was with a force of 60
Americans outnumbered by 350 Al-Qaeda. They fought for 12
hours. We got the best of them, we killed 60 of these folks. We
took no fatalities, we had 20 something wounded. I said, ``What
do you think produced the difference?'' He said, ``Sir, they
were as tough as we are, they gave no quarter, they didn't back
up.'' He said, ``Fundamentally what the difference was, was our
skill. We shot better than they did, and we maneuvered and
fired better than they did.''
That is the essence of our training, and it produces those
kinds of results. That's what we're so concerned about,
Senator, is that we see this train wreck coming, and we're
trying to avoid it. It's not just the problems we have today,
which are formidable. But it's the problem as we see in the
future.
I think what we're asking the Congress is, is this really
what you had intended when these laws were passed. I think we
need clarification of that, because we believe it's out of
balance. Thank you.
Senator Jeffords. That's why we're here today.
General Williams, do you have a statement or comments?
General Williams. I have a written statement that we have
admitted to the record. I would like to add to General Keane's
eloquent remarks, we in the Marine Corps wanted to try to
quantify the impact of environmental constraints on readiness.
We took a unit in what is our trademark, the amphibious
assault, from ship to shore, and then movement beyond the
beach. We listed all the mission essential tasks that that unit
is supposed to be able to perform in order to be fully trained.
We took out from that all the tasks that require firing
weapons, because we knew we'd get safety and environmental
concerns mixed up. So we just looked at non-firing tasks.
About 68 to 70 percent of those tasks, we can perform at
Camp Pendleton. The other 30 percent of those tasks need to be
done elsewhere. We do that, we take our troops to Marine Corps
Base Twenty-Nine Palms, where they have access to ranges and
areas where they can do the remainder of their training. But
the fact is that the continuity of training is broken. We
assault across the beach and then we stop and we go around an
area, a vernal pool or other designated area, and we regroup,
we train some more, we stop. So the rhythm of training is
constantly disrupted.
I believe that the best gift we could give our young
Marines is to have them trained hard and trained often, to the
highest standards we can push. We are seeing this balance slip
away and we too are concerned about the future. I don't want my
successor's successor to be back here in 5 years explaining why
we weren't as trained and as ready as we could be.
Senator Jeffords. General Foglesong.
General Foglesong. Thank you, sir.
This is a hard thing, as everybody has discussed. I will
tell you, we have a ranch in Montana and we think it's un-
American to assault the environment. This is kind of my family
tradition and the way we think about things.
On the other hand, I'm also a fighter pilot, and it's un-
American to send our fighter pilots into a fair fight. The
thing that's made sure we never had to send them into a fair
fight to a large degree has been our opportunity to train. We
are the best trained Air Force in the world. Fundamental to
that training has been our ranges. So we appreciate the
opportunity to come in and talk about that today.
I want to give you one anecdotal story. While the GAO
report may be right to a degree, and we have not quantified to
the best of our ability the impacts of the implications of the
interpretations of the laws on our ranges, I will tell you, it
does have an impact. Two years ago, on more than one occasion
at Davis-Monthan Air Force Base, I'd take a force ship out. If
I were going with an operational squadron and we were all
highly qualified, get to the end of the runway and be called
and told that the pronghorn antelope are on range three, then
we would stop at the end of the runway and call the other three
flight members and brief them on the new targets that we would
be going to.
For experienced fighter pilots, that works. Often, we take
inexperienced pilots out, maybe even brand new fighter pilots,
in training, have to do the same thing at the end of the runway
and explain to them what the target is going to look like on a
new range on the fly, so to speak. Those sorties are much less
effective than they could have been. In some cases, we lose
those sorties.
We do that because the environment is important to us, and
it's not something that we are against. We do that because we
think it's the right thing to do. So what we're concerned about
in the Air Force now is really what was alluded to earlier, not
exemptions to the law, rather clarifications to the law, so
that we don't restrict ourselves more than we are now,
especially into a future that we don't fully understand our
range requirements. Our footprint is likely to get larger,
rather than smaller, as we, for instance, take on the F-22, we
will require a larger air space because of it, and because of
opportunities to go out and drop live munitions will save lives
in combat.
So for those reasons, we would ask that you consider the
intent of the law as originally passed. Again, we're not asking
for exceptions to the law, exemptions to the law, we just ask
for clarification so we can go back to what we thought was the
right stewardship and the right guidelines to follow for the
environment. Thank you, sir.
Senator Jeffords. Senator Smith.
Senator Smith. Thank you very much, Mr. Chairman.
I'm trying to walk through the statute and try to
understand the dilemma you face. The term legislative change
and clarification, are they two different items in your mind or
do they mean the same thing? For some clarification in the law,
clarification would be you probably wouldn't change the written
law but somebody would clarify it for you, and legislative
change means you're going to write some changes, is that
correct?
Admiral Fallon. Yes, sir.
Senator Smith. Does anybody differ with that?
Well, there are two terms that have been used here almost
interchangeably, one, legislative change, and the other
clarification. I just want to try to understand that. But I
think we tend to agree, I really didn't want to go too far down
that track.
I wanted to use an example, though, and help me, any of you
who would like to answer this. Let's try RCRA first. This is
the statute, the term solid waste means any garbage, refuse,
sludge or any other discarded material from industrial,
commercial, mining and agricultural operations and through
community activities, but does not include material in domestic
sewage or materials in irrigation return flows or industrial
discharges, which are point sources subject to permits. It goes
on to say, the President may exempt, the President may exempt,
any solid waste management facility of any department from
compliance with such a requirement if he determines it to be in
the paramount interest of the United States to do so. I'll come
back to that, I just want to make one more point, give you one
more statute.
CERCLA, or Superfund, the term release means any spilling,
leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping or disposing into the
environment, including the abandonment or discarding of
barrels, containers and other closed receptacles containing any
hazardous substance or pollutant or contaminant, but excludes
any release which may results in exposure to persons solely
within the workplace, and so forth. Then it says, the President
may issue such orders regarding response actions at any
specified site of the Department of Defense as may be necessary
to protect the national security interest of the United States
at that site or facility. It goes on to clarify that.
So I guess the question is, is there a process problem
here? Is it, OK, the President can do this, by Executive Order
or some type of decision, and it takes, if you want to fire on
a range and there's a migratory bird that's there that's maybe
not endangered, say a seagull or something, and is there a
process here that would just make it impossible for you--that's
not a good example, because I want to stick to the Superfund
and RCRA.
What happens if there is somebody that raises an issue with
what you're doing in terms of RCRA or Superfund, and the
President, at least according to this statute, can say, we
exempt you, go ahead, continue what you're doing? What happens?
What's getting in the way here? That's what I'm trying to
understand, as it pertains to those two statutes.
General Williams. My understanding of this, sir, and this
is now a dog watching television, so I'm not sure I'm going to
get this right----
[Laughter.]
General Williams. But the process by which these exemptions
are requested is long and tedious.
Senator Smith. How long?
General Williams. I'm told up to 8 or 9 months. The
threshold for the exemption itself is very high, the paramount
interest of the United States. It's very difficult to justify a
rifle range at Quantico as being in the paramount interest of
the United States. With over, probably over 1,000 ranges in
DOD, to expect the President to declare these things, and then
there's also a reporting requirement to Congress whenever the
President exercises his power of exemption.
So to use the exemptions instead of clarification of the
law in the example that you cite, what we are looking for is
language that says that hazardous waste on an operating range
is exempt from cleanup as long as it remains on the operating
range. The military would still be responsible for cleaning
ranges that are abandoned or closed, and we would still be
responsible to clean an operating range if the hazardous waste
leaked off the range.
That's in sum. We think in most cases we need additional
language in the statute to explain precisely the occasional
taking of migratory birds during military training on an
operational range does not violate the Migratory Bird Treaty
Act.
Senator Smith. So if there is a problem with either RCRA or
CERCLA here, and in your view, let's just say it directly
impacts an action that you want to take tomorrow, for whatever
reason, for training or perhaps even some operation, what
happens? Do you go directly to the White House with a request?
General Williams. We just don't do it.
Senator Smith. You don't do it. So then there's a process
that unfolds that takes a long, long time which could be
several months.
General Williams. Yes, sir.
Senator Smith. It gets, so basically you're bogged down
without really getting an answer.
General Williams. That's really why in the past, sir, none
of the services have made use of the exemptions. The exemptions
were designed on purpose, with a very high threshold, and they
were designed to let the interagency process in various
Agencies of the Government comment on the exemption.
Senator Smith. But I'm just trying to understand, I'm not
trying to harangue you here, if you have that situation, if you
call the President tomorrow morning or tonight and say, we've
got to have relief here, can he issue the exemption at that
point and you go ahead?
General Williams. Sir, to my knowledge, he could do so, if
he were convinced it was in the paramount national interest.
But then there's a process after that that goes, and then he
would have to report his actions to the Congress.
Senator Smith. So you have to decide whether it goes to the
level of asking for Presidential relief or exemption?
General Williams. Yes, sir. In the past, history shows that
we have decided that it does not.
Senator Smith. Probably not in the short term.
General Williams. Really, the status quo as it existed up
until several years ago, we've been working with it. We've been
working with the Endangered Species Act and the other acts. It
is the ever-increasingly wide interpretations of these acts in
litigation that's really causing the problem. The EPA and the
services have an agreement on the range hazardous waste. The
agreement was as I described it to you.
But there is now litigation and if the litigants win, that
agreement will be no longer enforced.
Senator Smith. My time has probably expired, I just wanted
clarification. Did you have a comment, Admiral Fallon?
Admiral Fallon. Yes, sir, this business of exemptions,
exemptions exist in law for some of these issues, but not for
all. For example, in the business of endangered species, there
is an exemption for national security, never been invoked yet
to the best of our knowledge. There are no exemptions in the
Migratory Bird Treaty Act nor in the Marine Mammal Protection
Act, two issues that are constantly in front us. That is not an
option.
The issue becomes for us one of interpretation of the
existing law. For example, this challenge out in the Pacific at
the training range a couple of months ago, the Migratory Bird
Treaty Act does not address the issue of a permit for
incidental takes. That's the lexicon for the inadvertent
harassment or demise of a creature in this situation. It just
doesn't address it. So it's up to the courts then to decide
whether first of all it is applicable, and this is how we get
into this. Up until recently, there had been no, to the best of
our knowledge, no ruling in this area at all until the judge
issued the injunction.
So there are different issues depending on the particular
statute. But some of them have no exemption.
Senator Smith. Thank you, Mr. Chairman.
Senator Jeffords. Senator Warner.
Senator Warner. This has been very helpful testimony. I
think we have gotten into a very important dialog on how best
to strike the balance that each of you in your statements have
stated is necessary. I'm just going to say openly here, those
that are not in favor of perhaps some of the efforts by the
military, let's look at a solution to it.
I say that, we need help, I'll speak to myself, I need a
little help trying to figure this out. In no way are we trying
to run roughshod over this valued body of environmental law
which has been compiled by generations and do so just in the
name of national defense. On the other hand, if you're seeking
clarifications, if that clarification applies to you, it may
apply to a much wider range of persons or organizations in such
a way that there is really a diminution in the effectiveness of
that particular law.
So where I'm going to focus my work, and open myself up to
suggestions from anybody here in the audience or otherwise that
can help, how can we do it in such a manner as to narrow,
whether it's the word exemption or waiver or something, so that
it applies to the needs of our U.S. military, but would not in
any way provide a basis for others availing themselves of what
you're seeking to achieve.
Now, frankly, this is beyond your pay grade. You gentleman
are all saddled with trying to fight a war right now. These are
some things the legislative draftsmen and the attorneys and
many others who work, labor in this field hard, can I think
figure out how to go about it. So that's what I'm going to try
and work on, Mr. Chairman, to see what we can do.
The one question I have, and I'd like to put my questions
in for the record. Give us some idea of the urgency of this
matter. Just in generalities. As the chairman has pointed out,
the chairman of the Armed Services Committee, and I will
consult with him on this, we do not wish in this conference to
run roughshod over this body of law and certainly, I'll fight
hard not to do it. But if we can figure out some kind of a fix
to enable this situation, maybe for a period of time, Mr.
Chairman, to allow the training to go on, particularly in this
period of war time, and then within that period of time we sit
down and figure out how we can do it on a more permanent basis,
so as not to run roughshod over the environmental laws, and at
the same time achieve our goals. So I petition all those who
might have better ideas than I have at this moment as to how to
figure it out. That would be my goal.
Is that consistent with your goals, Admiral Fallon?
Admiral Fallon. Very much so, Senator.
Senator Warner. With yours, General Keane?
General Keane. Yes, sir, very much so.
Senator Warner. Well, I thank you. I'll return for the next
panel, Mr. Chairman.
Senator Jeffords. Thank you. That's an excellent question.
I want to ask the same one as to what kind of guidance do you
get, who do you call, what's available to you for what you can
do under those circumstances? Is there any phone you can lift
and get somebody on the end that has the authority or the
ability to answer your questions?
General Williams. All of us have environmental lawyers on
our staffs. All of us work as closely as possible with the Fish
and Wildlife Service, in the case of the Endangered Species
Act, and the appropriate regulatory agency. For the most part,
our relations with those Agencies are good relations. The
compromises that we have worked out over time have been
reasonable. It was a Fish and Wildlife Service compromise that
enabled us to continue training at Camp Pendleton, when there
was a proposal to make over 50,000 acres, which is half the
base, protected habitat.
What we can't control is the pace of litigation. When the
courts rule, we're stuck with the result, obviously, as they
did at Farallon de Medinilla. So it is critical that we move on
this quickly, because as we sit here, there are any number of
lawsuits pending in courts, and the courts are open to
interpret the law, because in most cases, there is no specific
mention of what constitutes a legitimate military use of
military property.
Senator Warner. If I might follow on, how urgent is this
matter in terms of our national security and training? Is it a
month by month? Because realistically, if we don't address it
now, it's not likely to be addressed until way into next spring
at the earliest. What detriment is there to your training
cycle? Of course, General Williams, I commend you, you wake up
in the morning and there's a court suit out there, and the
judge is ruling and bang, down goes that clarification or
whatever you had been operating under for a period of time. You
can't stop the training, because your people are ready to go
abroad.
General Williams. The issue for us I think, for the most
part, is erosion. If we wait another year, our training base
will have eroded by some extent and I can't quantify that
extent. I see what's happened and I see the pace in litigation
and I am concerned that if we don't talk about this now and
find a way to stop that erosion and restore some of the
balance, we're going to be, every year, fighting a steeper
battle uphill.
General Keane. Senator, one of the things that has
increased our sense of urgency is certainly the fact that the
Nation is at war. There is sort of an open contract in terms of
how long that war is going to last. And that's got all of us
very concerned, as we are increasing the training at all our
installations. We call it surge training in the Army, and our
soldiers are going through it right now, for preparations for
future conflict. That also obviously is part of the denominator
here.
The Army, just like General Williams was saying, is very
concerned about pending litigations which could shut down our
operating ranges, as it pertains to the RCRA and its impact on
unexploded ordnance, which has us very concerned. We are
managing the endangered species, and I think we've done an
incredible job. We are frustrated by it at times, because I
know that the red-cockaded woodpecker loves paratroopers.
There's absolutely no doubt about it. Because the only place
they live is where we're protecting them at Fort Bragg, NC. All
around us, where there were also critical habitats, that
habitat has been destroyed by developers. But we are protecting
them, and we have learned how to do that.
But as the endangered species increase in numbers and
plants are increasing in numbers, and there have been, these
habitats are being assigned to our installation, it's
exacerbating our problems. It makes managing them that much
more difficult. So if there is a sense of urgency that's here
now that hasn't been there 4 or 5 years ago, it's because the
problem is getting so much larger.
Senator Warner. We may have to see if there is a short-term
fix while Congress and the environmental community work on a
long-term fix.
General Keane. We would be able to help you, for the
record, with that as well, if you would like, sir.
Admiral Fallon. Senator, there is a near-term readiness
challenge, this problem out at FDM in the Pacific. We are
under, the appeals court granted a stay on the injunction. This
is just a temporary reprieve to allow us to train right now.
But this is a really critical issue of timeliness.
Our forces that are forward deployed and stationed in the
western Pacific, in Japan and Okinawa, depend on this range,
it's the only live ordnance training facility that we have out
there. It's not as good as their training facilities back in
the continental United States, but it's the only thing we have.
When this was taken away, these people, who are going down
to the North Arabian Sea to enter combat in Afghanistan, had no
place to train. There was no option until the court of appeals
stayed. So this is what was a gradually creeping encroachment
problem and has suddenly become something right in our faces.
We could use some immediate relief, sir.
Senator Jeffords. Senator Inhofe.
Senator Inhofe. Thank you, Mr. Chairman. I think things
have been covered very well, and I appreciate the
straightforward answers that you folks have given to these
questions. One thing for clarification is, Mr. Chairman, you
read from a report. Is that something fairly recent, and can
you give me the name of that report?
Senator Jeffords. Yes, it's the GAO report to Congress,
June 2002. It's very recent, on military training, and the
Department of Defense lacks a comprehensive plan to manage
encroachment on training ranges.
Senator Inhofe. The reason I ask, I recall when you made
your opening statement, two things, there was not adequate
data, they concluded not adequate data that would show that
there is a direct cost increase to this, No. 1, and No. 2, that
there is a degradation of training. I think that was in there,
the way you stated it.
With that in mind, I do think that needs to be clarified. I
think you did it, General Keane. I'd like to ask you, each one
of you, to give an example of the costs that you say, of course
you say you had it mostly under control, the endangered species
portion, but there's a cost to that. The ranges that have the
turtles running around in there, there is a cost to that. There
are personnel being used.
I'd like to have each one of you give an example of
something that would be a cost example in your particular
branch, and then second, an example of degradation of training.
Let me give you a hint. I think Admiral Fallon, you'd be the
one I should ask this for. And as I've spent many, many, not
just weeks and months now, it's getting into the years, trying
to get our live range at Vieques back, my concern has been that
if we allow that to happen and they were using primarily
environmental reasons for shutting down the live range, that
had an effect on all the other ranges. You've already stated
the problems that we're having out there.
We do know that in southern Sardinia, the range we have
down there with the Italians is one that we're going to lose,
or each month that goes by, we have fewer days we can use that
range. We know that Cape Moratt in northern Scotland is another
one, in fact, I was there when they said, ``Well, wait a
minute. If the United States allows their people to protect and
close the ranges they own from live fire, why should we let
them be using our range here in northern Scotland?'' It's a
good question, a difficult question to answer.
But as far as degradation is concerned, and I think it was
2 or 3 years ago that while they were doing some work on the
range in Kuwait, there were five people killed, I believe four
of those were Americans. In the accident report they
specifically said one of the contributing reasons was they had
not had the opportunity to use live training. So there is a
good example that I would see as a degradation of training.
Since you are one of the two authors of the Bates-Collin
report, you're very familiar with what I'm talking about and
how that affects the others.
So if each one of you could maybe give an example, a cost
example and a degradation of training example, or maybe two or
three, if you would do that, just for the record.
General Keane. First of all, dealing with costs, and these
are direct costs, in the U.S. Army, we have 4,000 people whose
sole purpose it is to work the environment. It's not a part
time job, it's a full time job. We spend $1.5 billion a year on
this subject.
Senator Inhofe. Four thousand?
General Keane. We have 4,000 people.
Senator Inhofe. Just the Army?
General Keane. That's just the Army. And we spend $1.5
billion doing this on an annual basis.
Indirect costs that I don't have available to me, at my
fingertips, that take place at every installation, because
there are now----
Senator Inhofe. At that point, General Keane, if you could
for the record send this to us.
[The information requested for the record follows:]
Critical Habitat Designation Impact. Since 1966, at Naval
Amphibious Base (NAB) Coronado, the Navy has spent approximately
$675,000/year on conservation and management programs for the Western
Snowy Plover and the California Least Tern, increasing nesting by
almost 300 percent. However, Navy's successful stewardship program has
resulted in the loss of approximately 45 percent of its training area,
and NAB Coronado has lost over 60 percent of its training beaches to
encroachment due to critical habitat designation in 1999. The response
has been to substantially alter training activities or to conduct them
elsewhere, which reduces realism, disrupts training cycles, reduces
access to training areas, and increases costs and the already
considerable time Sailors must spend away from their families before
leaving for extended deployments.
On San Clemente Island, CA, the Navy spends approximately $2.6
million per year to accommodate the Loggerhead Shrike. During certain
times of the year, the Navy can only use the southern half of the
island (where the bombardment area is located) 3 days a week to allow
for research to evaluate the birds. If the shrike population decreases
the U.S. Fish and Wildlife Service (USFWS) may further restrict
training or prohibit it altogether.
Incidental Take Permits. Navy implemented a turtle protection
program on Vieques that required daily patrols for endangered sea
turtle nests. The incidental take statement in USFWS's biological
opinion on Navy training at Vieques allowed the Navy to take only one
turtle in the course of training. This low number of authorized takes
forced the Navy to expend more effort and funding on turtle surveys. On
average, Navy spends several days and $100,000 per battle group
training exercise cycle conducting turtle surveys. Additionally, the
low number of authorized incidental takes has forced the Navy to expend
more time on planning training exercises that utilize the beaches. In
some instances, exercises have been moved to other parts of the beach
where there are fewer turtles. At other times, exercises have been
severely curtailed. For example, amphibious warfare training exercises
have been moved, scaled back, or dropped only because of their
potential to take more than one turtle.
Costs not captured but still an impact. (Currently attempting to
find way to roll up these costs.) An example is the requirement for F-
14 squadrons to travel from Naval Air Station (NAS) Oceana in Virginia
Beach to NAS Key West to complete the Strike Fighter Advanced Readiness
Program (SFARP) because they are unable to complete this training
locally due to encroachment restrictions (range, night, noise, etc).
These extras, which are not currently captured, including additional
flight hours for the transit to and from Florida, TAD dollars, and
PERSTEMPO increases. Maintenance costs also increase due to shipment of
required maintenance equipment and rapid action repair items. These
costs, flight hours, steaming hours for ships, and Quality of Life
costs for the personnel unable to conduct readiness activities locally
are currently not captured.
General Keane. I'll provide you with that. In terms of
training degradation, I gave you examples at Fort Bragg,
there's another one at Fort Hood where we're also protecting
two endangered species, both of those are birds. It restricts
training on 66,000 acres, which is over one-third of the total
acreage at Fort Hood, TX. Again, common sense tells you that
there are challenges here, because again, there's no digging
and there's no destruction of the habitat permitted whatsoever.
During the months of March to August, which is our prime
training time in terms of weather, we cannot move our vehicles,
except on roads and established trails. That makes no sense to
our armor formations, who have to practice in formation so they
have to bring large numbers of vehicles out that are practicing
those formations, so we can understand relationships and so on
in doing that.
Certainly, simulation has gone a long way in helping us
practice things to skill repetition and to proficiency without
having to go to the field. Most of that is in the training of
leaders. But to train organizations and large groups of
organizations on the ground, like General Williams' challenge
has, and the U.S. Army has, you have to get out there and
practice those skill sets. So there's degradation that takes
place at Fort Hood, Texas, which is the home of the Army's
heavy armor corps, and it has two divisions there, the 1st
Cavalry Division and the 4th Infantry Division and III Corps
Headquarters. Of course, that's our No. 1 counter-attack corps.
The degradation takes place in every place in the Army
where we have endangered species. What we're concerned about,
as I stated earlier, is the increasing management that's having
to take place as the endangered species are moving not just
from animals but also to plants. They are continuing to rise,
and further exacerbate the problem.
Senator Inhofe. Good answer. Admiral Fallon?
Admiral Fallon. Senator, I can give you a couple of
examples. One, on San Clemente Island, where we spend about
$2.6 million a year working to help in the loggerhead shrike
species. If I could, the challenge that we have is that we're
on a rotational cycle with our forces. Generally about every 6
months, we send battle groups and amphibious ready groups with
the Marines forward. We're not able to just defer training for
3 or 4 months to accommodate a challenge. For example, in San
Clemente, 8 months of the year, we're only permitted, because
of the loggerhead shrike, which by the way, through the
stewardship of the people out there on the island, has
increased in the last 10 years from a count of 13 up to 180
today in the wild on that island. So they are certainly good
stewards of the environment by that measure.
Four days a week, no live ordnance training. Other
restrictions in some areas, there are two training ranges
there, 90 percent of one is not accessible, 50 percent of the
other one is not accessible. The only times that remain are 3
days a week. That's a real impact on our ability to train our
rotational forces there.
To give you one other example, a different scenario. We
have a weapons station down near San Diego in Fallbrook. This
entire area is a critical habitat for the California
gnatcatcher, another species of bird. So common sense things,
like cutting fire lanes, are prohibited. This is a weapons
station, with a danger of brush fire and so forth, in
California. It's this kind of interpretive relief that we're
really seeking. It has a real impact.
Senator Inhofe. Any other comments?
General Williams. Yes, sir. In answer to your questions,
the Marine Corps spent last year $117 million on environmental
compliance issues and environmental compliance.
Senator Inhofe. These are direct costs?
General Williams. Yes, sir. We have about 420 full time
employees who do environmental work.
As far as the degradation of training issue, I have one,
this was a report of the commanding general of the unit that
lost the ability to bomb out at Farallon. He was asked by the
court to tell them what the impact was on readiness.
He said, in anticipation of the injunction, we canceled 24
sorties scheduled to drop 51,000 pounds of ordnance. We then,
in anticipation of the continuing, we have already canceled
June and July air to ground training. As a result of the above-
described lost training opportunities, this squadron's
readiness has been irreparably harmed. It is right now less
combat ready than it would be if it had been able to train. The
longer the injunction remains in effect, the more it will
degrade. There is no other range in the Pacific theater of this
caliber. Although attempts will be made to use ranges in
Australia, Thailand, Okinawa or South Korea, use of these
ranges will be wholly dependent on the desires of foreign
nations.
Senator Inhofe. Thank you.
General Foglesong. Sir, I'll just refer back to my earlier
example, on the Barry Goldwater range, we lose annually about 3
percent of our live drops, just can't recover them, they have
to come back and bring the ordnance back. So those numbers are
easy to quantify and I'll give them to you for the record.
Senator Inhofe. That would be good, I appreciate it. Thank
you, Mr. Chairman, I know I went over my time.
But I'd like to ask each one of you if you would have some
staff put together some specific things like that, it would be
very helpful to me to able to have that. In other words, both
on degradation and on cost. Thank you very much, Mr. Chairman.
Senator Jeffords. Thank you. The panel has done an
excellent job in making us better aware of the problems you
face. We deeply appreciate the time and effort that has gone
into your preparation. We have another panel that was scheduled
at 2:30, so we will now move on to them. Thank you very much.
We are pleased to have you all here. We had a little delay,
but a very interesting and worthwhile one. The first witness is
Jamie Clark. Please proceed.
STATEMENT OF JAMIE RAPPAPORT CLARK, SENIOR VICE PRESIDENT FOR
CONSERVATION PROGRAMS, NATIONAL WILDLIFE FEDERATION
Ms. Clark. Thank you, Mr. Chairman, and good afternoon to
you and the other members of the committee.
My name is Jamie Rappaport Clark, and I am here today to
testify on behalf of the National Wildlife Federation, the
Nation's largest conservation education and advocacy
organization. I thank the committee for the opportunity to
testify today.
I currently serve as senior vice president for Conservation
Programs at NWF. Prior to arriving at the Federation, I served
for 13 years at the U.S. Fish and Wildlife Service, with the
last 4 years as Director. Prior to that, I served in a variety
of management and wildlife biology positions in the Department
of Defense. I am the daughter of an Army officer, so I have
lived on or near military bases throughout my entire childhood.
On numerous occasions during my 10 years with the Service
and the Defense Department, DOD rolled up its sleeves and
worked to comply with environmental laws while ensuring
military preparedness. Today, though, I think we're at a
crossroads. Will the Defense Department continue to build on
its long record of wildlife conservation and respect for
environmental laws, or will it now retreat from this role and
take on a new role as the unregulated despoiler of our
environment?
Unfortunately, at the highest levels of this
Administration, efforts are underway to give the Defense
Department an unwarranted free pass from complying with many of
the Nation's environmental laws. At the center of this effort
is the Readiness and Range Preservation Initiative, a proposal
by the Administration to exempt the Defense Department from key
provisions of six environmental laws: the Endangered Species
Act (ESA), the Migratory Bird Treaty Act (MBTA), the Marine
Mammal Protection Act, the Clean Air Act, Resources
Conservation and Recovery Act, and Superfund. Congress'
approval of these exemptions constitutes one of the largest
rollbacks of environmental legislation in our Nation's history.
These exemptions are part of the pattern of resist, rollback
and renege on environmental laws that this Administration has
adopted far too often.
These attacks on environmental laws must be kept out of the
bills that emerge from the Defense authorization and
supplemental appropriations conference committees. We
recognized that military readiness is vital. However, the
environmental laws targeted by this Administration already
contain site specific exemption and permitting procedures that
enable DOD to achieve its readiness objectives, while taking
the environment into account.
As we heard before, according to a recent GAO report, the
Defense Department has provided no evidence that environmental
laws are at fault for any of the gaps in the readiness that may
exist today. Before Congress considers weakening fundamental
environmental safeguards, DOD should be asked to produce a
comprehensive study of the real obstacles to achieving
readiness.
To justify its proposed exemptions from the ESA, the
Administration has provided a handful of anecdotes about
problems at individual installations. I certainly do not
dismiss the challenges that Defense has faced in balancing
environmental and readiness objectives at some of its
installations. However, the best way for Congress to help DOD
meet these challenges is to encourage them to engage in early
consultation and to provide the Fish and Wildlife Service and
other environmental experts with the funding they need to carry
out their consultation duties in a timely manner.
By engaging in early consultations at the local level, DOD
can solve problems before they turn into major headaches. A
perfect example we heard earlier is how this can be done is at
Camp LeJeune in North Carolina, which does provide important
essential habitat for the endangered red-cockaded woodpecker.
Rather than complaining to Congress about ESA restrictions on
its base, the Marine Corps worked very closely with the Fish
and Wildlife Service and crafted a plan that calls for each of
the birds' colonies to be incorporated into their training
missions to be marked on the maps as land mines. DOD was
sufficiently proud of the results that it produced this poster
that we have to my left, which correctly asserts that the
Marines, teaming with the Service, are proving that a first
rate military force can train while protecting endangered
species.
As this example shows, the Endangered Species act brings
DOD and other Federal Agencies to the table to develop
solutions, and it provides the flexibility needed to make a
wide range of solutions possible. In contrast, the
Administration's proposal would tell Defense to simply abandon
its work at the Service and the public in balancing readiness
and environmental objectives, and decide unilaterally what
level of environmental protection to provide. Such an
abandonment of our military's long and proud tradition of
collaborative wildlife stewardship would be very unfortunate.
I'd like to just make a few points about the Migratory Bird
Treaty Act exemption passed by the House in its defense bill.
This nationwide exemption would greatly reduce protection of
migratory birds. And yet, the Defense Department has offered
nothing more than a single district court ruling to justify it.
Certainly, congressional review of the challenges implementing
the MBTA is warranted. But considering the importance of
migratory birds to the health of our environment and our
economy, such a review should be thoughtful and searching. Any
changes to the MBTA should only be made after careful study of
the new approaches being taken, the problems being encountered
and the potential policy solutions, and only after
opportunities for public input and important debate.
In summary, the National Wildlife Federation urges the
Senate to reject all attempts to roll back the environmental
protections under the guise of national security We are clearly
committed to working closely with the Congress and others to
ensure that both military readiness and environmental security
are maintained.
Thank you again for the opportunity to testify, and I will
be happy to respond to questions.
Senator Jeffords. Thank you very much.
Dr. Cohen.
STATEMENT OF BONNER COHEN, SENIOR FELLOW, LEXINGTON INSTITUTE
Mr. Cohen. Thank you very much, Mr. Chairman.
My name is Bonner Cohen, I'm a senior fellow at the
Lexington Institute, a non-partisan, non-profit public policy
organization located in Arlington, VA. I want to thank Chairman
Jeffords, Ranking Member Smith and other members of the
distinguished panel for the opportunity to address this very
important issue today.
In recent years, environmental laws designed to do such
things as protect endangered species, safeguard migratory birds
and other noble endeavors, have been applied largely as a
result of lawsuits, increasingly to military installations and
military activities where they are coming increasingly in
conflict with the training of soldiers for battle. Everyone in
this room knows that the military has a unique mission, one
which requires the utmost training of our soldiers for the test
of battle.
The Joint Chiefs of Staff came here today because they had
a problem to solve. Failure to do so in a timely and sensible
fashion will put young lives needlessly at risk. This need not
be the case. By making a few carefully selected and very narrow
clarifications of some of our environmental laws, we can both
provide for additional environmental progress and prepare our
soldiers for the rigors of combat.
I will restrict my comments today to just a couple of
things. In my written comments, I had mentioned the Marine
Mammal Protection Act. In deference to the request of the
chairman, I will forego that here and concentrate instead on
the Migratory Bird Treaty Act and Endangered Species Act.
On March 13 of this year, a Federal judge ruled that the
U.S. Navy, by using its facility at a base known primarily by
its acronym, FDM, in the west Pacific, by using that it was,
the term is, incidentally taking birds and to continue
activities there, its military activities there, by taking
birds it would have to receive a permit. As a result of that
action, FDM, a tiny island, one-third of an acre, located 70
miles north of Taipei, has been closed pending a judge's final
decision on what will be required of that.
I think anyone who looks at the purpose of a gunnery range,
anyone who looks at the purpose of a bombing range knows that
during the process of these activities, some birds are going to
be killed. Common sense tells us that. Common sense also tells
us that pilots preparing for battle need to be trained in such
a manner with conditions that are as close to combat reality as
possible.
I think it is worth noting that when the Migratory Bird
Treaty Act was enacted in 1918, it was done so for the purpose
of regulating duck hunting. This was before the days when such
organizations as Ducks Unlimited did such a splendid job in
restoring duck habitat. It had nothing to do at the time, and
had nothing to do for decades, with the problem of military
readiness.
The conflict need not be what it is. I think common sense
tells us that by returning to the legal and regulatory status
quo, as it has existed for over 80 years, we can provide the
military with the kind of facility it needs, for which, as the
gentlemen in the first panel mentioned, there are no
alternatives in that part of the world, so we can provide for
the kind of training that our pilots need before they are sent
into the rigorous combat.
I will turn very briefly then to the Endangered Species
Act. The Department of Defense manages some 25 million acres of
land, and over 425 military installations where some 300
threatened or endangered species have sanctuary. More often
than not, it is good environmental stewardship that attracts
threatened and endangered species to certain areas, a point
raised earlier by Senator Inhofe.
Thanks in large part to litigation, to lawsuits which have
been brought forward, we now are facing the possibility of the
Endangered Species Act, particularly the critical habitat
provision of the Endangered Species Act, to be applied to
military installations. We heard from the first panel the kinds
of problems that this is already causing in such places as Camp
Pendleton, CA, Camp LeJeune, NC, and Fort Hood, TX; problems
which are only likely to go from bad to worse in the years to
come, as more litigation is brought forward.
One of the things I think we want to do this afternoon is
discuss intelligent, sensible solutions to these problems, so
that we can reconcile the needs of the environment with the
needs for military readiness. In fact, the Integrated Natural
Resource Management Plans, already employed and already
required by the Sikes Act, where the Department of Defense
works very closely with the Department of Interior and State
wildlife agencies, have provided remarkable conditions that
have in fact provided protection for the endangered species,
whether it's the red-cockaded woodpecker or what have you.
Indeed, the very effectiveness of the Integrated Natural
Resources Management Plans is attested to by the presence of so
many threatened and endangered species on these lands.
No institution created by humans is going to work
perfectly. What we're looking for this afternoon are common
sense solutions. Rather than apply the critical habitat
designation of the Endangered Species Act to military bases
where they have created a host of problems that we heard about
from members of the first panel, we should instead, in my view,
stick with the plans that are already working so remarkably
well.
What we're ultimately talking about here are the conditions
under which soldiers are going to be trained and sent into
battle. So let me close my comments by posing two questions. If
soldiers are not to be trained in realistic conditions, in
areas designated for that purpose, then where are they supposed
to be trained? If weapons systems cannot be tested in areas
designated for those purposes, then where is the weapons
testing supposed to take place?
Thank you very much.
Senator Jeffords. Thank you, Dr. Cohen.
Mr. Henkin.
STATEMENT OF DAVID HENKIN, STAFF ATTORNEY, EARTHJUSTICE,
HONOLULU, HI
Mr. Henkin. Aloha, Mr. Chairman, members of the committee.
My name is David Henkin, and I'm here today from Hawaii to
testify on behalf of EarthJustice, the non-profit law firm for
the environment. I thank you all for this opportunity to
testify in opposition to the exemptions proposed in the
Department of Defense's Readiness and Range Preservation
Initiative.
As staff attorney for EarthJustice in its Honolulu office
for 7 years, I have spent much of my career working with the
critical habitat provisions of the Endangered Species Act to
extend protection to essential recovery habitat for Hawaii's
imperiled plants and animals. Accordingly, I will focus my
testimony discussing why the proposed ESA exemption is
unnecessary to ensure military preparedness and why, if
enacted, it could spell disaster for important efforts to bring
endangered species from the brink of extinction to recovery.
Before I continue, I should mention that EarthJustice is
the attorney for the plaintiffs in the Migratory Bird Treaty
Act case involving Farallon de Medinilla, and I am prepared to
answer questions you may have regarding that issue as well. I
will mention only that, currently, there is no injunction in
place. The court of appeals has lifted the injunction, and in
fact, there was only an injunction in place for something on
the order of only 2 or 3 weeks. So the Navy has been free to
train as it sees fit while this issue is being worked out in
the courts.
With respect to the ESA exemption, and it is an exemption,
it's not a clarification, it's quite clear under existing law
that critical habitat can be, and is, designated on military
lands as well as other Federal, State and private lands. There
was no intent to carve out an exemption for military lands. So
this is not a clarification, this is a new ``carving out,'' or
exemption. It would exempt any military lands, any Department
of Defense lands, if there is a Integrated Natural Resource
Management Plan in place. Significantly, all that the proposed
exemption requires is that the INRMPS address special
management considerations. It does not require that the way in
which they address the management needs of endangered species
be adequate. There is no adequacy review. Therefore,
effectively what this exemption is seeking to do is eliminate
critical habitat protection from all military lands, because
under the Sikes Act, they all have to have INRMPs in place. So
as soon as those INRMPs are completed, and, by definition, they
will all address to some extent habitat and species needs, then
all the bases arguably would be automatically exempt if this
exemption were to become law.
Moreover, although the previous panel was focusing on
military training needs, the exemption is not so narrowly
worded. It would reach all DOD lands, even if they are used for
recreation, or other non-training needs. It would take them out
of the protection of critical habitat. Second, to the extent
that the DOD tries to characterize its exemption as merely a
clarification of existing policy, that is simply not correct.
In Hawaii we have experience with the U.S. Fish and Wildlife
Service reviewing the INRMPs for 11 military installations. And
you have, with my testimony I have included a table that
discusses their review of the INRMPs for 11 military
installations throughout the State of Hawaii. In each and every
case, the Fish and Wildlife Service determined that none of
them provided adequately for the long-term conservation of
Hawaii's endangered and threatened plants, and consequently
none of them could substitute for critical habitat.
By excluding these installations from critical habitat, the
proposed exemption would be a major setback in the struggle to
save endangered and threatened species in Hawaii such as the
endangered Cyanea superba, which is only found at Makua
Military Reservation on Oahu, and the endangered O`ahu
`elepaio, which is found on three military installations on the
island of Oahu.
Not only that, the proposed exemption could similarly
jeopardize the recovery of hundreds of species throughout the
country. When one considers that the DOD controls over 25
million acres, home to over 300 federally listed species, the
implications for species recovery of this exemption is
enormous.
I'd like to point out another difference between the INRMPs
and critical habitat. INRMPs are static documents. In other
words, they are prepared once, and then, by law, they are only
revised once every 5 years. So they do not guarantee that the
review of DOD activities will be based on the best science
available. In contrast, critical habitat has effect every time
there is a site-specific and case-by-case analysis of what the
impact of the proposed action will be on endangered species and
threatened species and their habitat. By law that has to use
the best science available. So only with critical habitat will
we have the best scientifically based decisions for our
endangered species.
Finally, I would just like to mention briefly that there is
no need for this exemption. Senator Inhofe mentioned the need
for a cost-benefit analysis. Well, that's exactly what critical
habitat designation provides, a cost-benefit analysis through
Section 4(b)(2). Through that cost-benefit analysis, the
Service already excluded all Camp Pendleton lands from
gnatcatcher critical habitat. So there's already a cost-benefit
provision, and it works to address the DOD's concerns.
Second, briefly I'd like to mention Section 7(j), which is
the exemption that the Secretary of Defense, not the President,
but the Secretary of Defense can automatically invoke any time
he feels that the Endangered Species Act is getting in the way
of national security. That exemption has never been invoked,
which leads one to question the need for the proposed
legislation.
Thank you very much for the opportunity to testify. We hope
that you will continue to exclude these exemptions from the
legislation that you finally adopt.
Senator Jeffords. Thank you.
Solicitor General Hurd, we're pleased to have you with us.
Please proceed.
STATEMENT OF HON. WILLIAM HURD, SOLICITOR GENERAL, OFFICE OF
THE ATTORNEY GENERAL, RICHMOND, VA
Mr. Hurd. Thank you, Mr. Chairman, Ranking Member Smith. I
appreciate the chance to be here today to express the views of
the Virginia Attorney General, Jerry Kilgore. I apologize that
my views are not in writing to give to the committee, but I
will put them in afterwards with a written copy.
We agree that military readiness and environmental
protection are compatible goals. For this reason, we have no
objection to the proposed clarifications in RCRA and CERCLA. On
the one hand, the Department of Defense has said their proposal
is critical to the national defense. We would say that the
changes will in no way affect the way that we in Virginia, or
any other State, to our knowledge, goes about enforcing RCRA
and CERCLA. In fact, we have a lot of military ranges in
Virginia, and we've never had a need to use our laws against of
DOD's operational ranges.
In short, it is our view that passing these clarifications
will do no harm to the environment in Virginia and no harm to
our authority in Virginia as the chief enforcer of our State's
environmental laws.
Now, the question has been raised about whether there is
any adverse impact on our military readiness as a result of the
present version of these laws. Mr. Chairman, there's no brass
on my shoulders today and no brass on the shoulders of anyone
else at this table right now. The Joint Chiefs have already
addressed the question of military readiness. With due respect
to my colleague to the left from the Attorney General's office
in Colorado, I would suggest that this committee takes its
views on military readiness from military general and not from
attorney generals.
There is also a question of whether these clarifications
would undermine States' authority in dealing with the military.
In our office, we argue State authority an awful lot. We argue
federalism in court all the time. But in matters affecting our
common defense, there is no place for States' rights. This is a
matter of common defense.
There is also the question of exactly what do these changes
do in RCRA and CERCLA? Well, they don't affect the closed
ranges, they affect the operational ranges. They do not modify
EPA's existing authority to take action under CERCLA Section
106, if there is an imminent and substantial endangerment, even
on an operational basis. Nor do they affect the States'
authority to act if there is a migration off an operational
base.
There have been, as my new friend to the right
demonstrates, there have been actions of private groups against
the military under various environmental laws. But no one has
identified, to my knowledge, any action brought under RCRA or
CERCLA by any attorney general's office. It is in fact not the
attorney generals who are using these laws, it is private
interest groups that are driving the military to make these
clarifications. So for that reason, too, the clarification
sought by the military will in no way undermine the authority
of the attorneys general to take appropriate action with
respect to protecting the environment in our home States.
In sum, it is the view of Virginia Attorney General Jerry
Kilgore that military readiness and environmental protection
are compatible goals. For that reason, we agree with the Joint
Chiefs. These proposals to modify RCRA and CERCLA are an
appropriate way to advance these twin goals.
Thank you, Mr. Chairman.
Senator Jeffords. Thank you for your statement.
Mr. Miller.
STATEMENT OF DAN MILLER, FIRST ASSISTANT ATTORNEY GENERAL,
NATURAL RESOURCES AND ENVIRONMENT SECTION, COLORADO DEPARTMENT
OF LAW, DENVER, CO
Mr. Miller. Thank you, Mr. Chairman, Senator Smith.
My prepared remarks today are made on behalf of the
Attorneys General of Arizona, California, Colorado, Idaho,
Massachusetts, Nevada, New Mexico, New York, Oregon, Utah and
Washington. I have also submitted a detailed written statement
that has also been endorsed by these States.
Today I am only going to address those parts of the
Department of Defense's proposals that would amend the Clean
Air Act, RCRA and CERCLA. These are the laws for which the
States are the primary implementers or in the case of CERCLA,
major partners with the Environmental Protection Agency.
First, we absolutely support the goal of maintaining the
readiness of our Nation's armed forces. The men and women of
our armed forces simply must have all appropriate training.
At the same time, we strongly support our environmental
laws, and we recognized that military activities can have
severe impacts on the environment and human health. In our
view, furthering military readiness and ensuring environmental
protection are compatible goals, not mutually exclusive. The
question is how to harmonize these competing concerns.
I would like to make three main points today. First, as far
as we are aware, the Department of Defense has not identified a
single instance in which RCRA, CERCLA or the Clean Air Act has
actually adversely impacted readiness. Consequently, we do not
believe that these proposed amendments are necessary.
Second, RCRA, CERCLA and the Clean Air Act already provide
sufficient flexibility to accommodate potential conflicts in
the unlikely event that they were to occur. Third, we also
think that the Department of Defense's amendments go far beyond
its stated concerns with maintaining military readiness and
would likely provide a very broad exemption from State and EPA
authority under RCRA and CERCLA for explosives and munitions.
Regarding flexibility, RCRA, CERCLA and the Clean Air Act
all allow the President to exempt the Department of Defense
from their requirements on a case-by-case basis. Yet the
Federal Government has never invoked these exemptions for
military readiness purposes. The exemptions provide
flexibility, coupled with accountability. Accountability is
important, because Federal Agencies have a history of seeking
to avoid compliance with environmental requirements. Federal
Agencies have consistently had a worse compliance record than
private industry, except under RCRA. The reason for that is
that in 1992, Congress amended RCRA to authorize the States to
hold Federal Agencies accountable for violating hazardous waste
laws by penalizing them. Since 1992, Federal Agencies'
hazardous waste compliance rates have steadily improved, and
now surpass the private sector.
Accountability is also important because of the
environmental impact of military activities. Over 10 percent of
the 1,221 sites currently listed on the Superfund National
Priorities List are Department of Defense facilities. Although
DOD has not documented instances in which these three laws have
adversely impacted readiness, it has nevertheless proposed
broad amendments. For example, proposed Section 2019 defines
munitions, explosives, unexploded ordnance and related
constituents are solid waste and thus subject to EPA regulation
under RCRA as hazardous waste.
By limiting which munitions meet the definition of solid
waste, this amendment may also narrow the scope of State
authority over munitions, because the term solid waste is used
in RCRA's waiver of sovereign immunity, that's the provision of
RCRA that allows States to regulate Federal Agencies.
Under Section 2019, the only time munitions that have been
used or fired on an operational range can be a solid waste is
if they were removed from the range, they are recovered and
then buried, or they migrate off-range and are not addressed
under CERCLA. This redefinition of solid waste likely preempts
State and EPA authority over munitions, explosives and the like
on operational ranges. But contrary to DOD's assertions, it
also likely eliminates State and EPA authority over the cleanup
of munitions on closed ranges and on DOD and private sites
other than ranges.
Under DOD's definition, munitions that were deposited on an
operational range and simply remain there after the range
closes are not solid waste and not subject to RCRA. These
residual munitions are precisely the problem at closed ranges.
DOD estimates that there are up to 16 million acres of former
ranges contaminated with unexploded ordnance in the country.
Many of these ranges are now in private hands. In addition to
the obvious explosive hazards, many munitions and explosives
constituents have toxic or potential carcinogenic effects and
can contaminate groundwater, as has happened at the
Massachusetts Military Reservation.
Proposed Section 2019(a)(2) also exempts from the
definition of solid waste explosives and munitions that are
used in training or research development, testing and
evaluation of military munitions, weapons or weapons systems.
This provision appears to create a wholesale exemption for
explosives and munitions that apply to any facility with such
waste, including private contractor sites, Department of Energy
facilities, regardless of when the waste was disposed.
In closing, we do not believe that DOD's far-reaching
amendments to RCRA, CERCLA or the Clean Air Act are warranted.
Instead, we would offer to work with the Department to adopt
its readiness concerns within the context of existing
environmental laws. We would 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.
Thank you.
Senator Jeffords. Thank you, Mr. Miller, for a very helpful
statement.
Mr. Phillippe.
STATEMENT OF STANLEY PHILLIPPE, DIVISION CHIEF, OFFICE OF
MILITARY FACILITIES, DEPARTMENT OF TOXIC SUBSTANCES CONTROL,
REGION 3, ON BEHALF OF THE ASSOCIATION OF STATE AND TERRITORIAL
SOLID WASTE MANAGEMENT OFFICIALS (ASTSWMO)
Mr. Phillippe. Thank you, Mr. Chairman, Senators. I believe
you have my written testimony so I'll be brief today.
Good afternoon. My name is Stan Phillippe. I chair the
Federal Facilities Research Subcommittee for the Association of
State and Territorial Solid Waste Management Officials,
ASTSWMO. Thank you for inviting ASTSWMO to testify concerning
Department of Defense recent proposed amendments to RCRA and
CERCLA.
ASTSWMO is a non-profit, non-partisan association of which
represents the collective interests of waste program directors
of the Nation's States and territories. We are involved with
base closure, cleanup and re-use, remediation of formerly used
defense sites, as well as military facilities. We implement
these laws in question.
I am here to tell you today of our association's opposition
to the amending language for RCRA and CERCLA proposed by DOD
and to urge that you oppose these changes to the key
environmental statutes. But I am also here to assure you that
our association's members have strong and continuing support
also for ensuring the readiness of the armed forces.
That said, our examination of the proposed legislative
April 2002 package DOD has titled Readiness and Range
Preservation Initiative leads us to question both the need for
and the wisdom of the proposed changes to these definitions. We
are unaware of cases where State regulators have adversely
affected readiness by seeking compliance with RCRA or CERCLA.
To the contrary, State regulators routinely work with their
military counterparts at the bases within the existing
hazardous waste laws to find solutions to environmental
problems in ways that avoid impacts to the bases' main defense
mission. Concerns with RCRA or CERCLA appear to be speculative
at most.
The absence of any report of existing situations involving
impacts on readiness seem to confirm our believe that normal
RCRA regulation has not impacted military training on
operational ranges. The more common State interest is the
application of RCRA and State hazardous waste statutes to clean
up requirements for closed and closing ranges that have been or
will be transferred out of Federal ownership for civilian use.
These cleanup requirements have nothing to do with current
training activities and do not potentially endanger
effectiveness of training.
However, the proposed DOD changes to the statutory
definitions of solid waste and to releases would arguably not
only affect the application of the statute to operating ranges,
but also to closed and closing ranges. As the State
implementers of hazardous waste and cleanup laws, and given the
complex nature of these fundamental statutory definitions, we
believe that this is one of those cases where the first
principle should be to do no harm.
The suggested changes to RCRA and CERCLA read beyond DOD's
immediate needs and could affect our later jurisdiction for
cleanup of unexploded ordnance and other environmental hazards
that may be caused by range use. If RCRA or CERCLA ever did
impact readiness, these laws, as you have heard, contain
Federal authority already to suspend application for national
interests. We are not suggesting that the use of these
authorities should be come routine, nor that they be used
lightly, but they area available.
Let me close with a thought that the proposed changes to
RCRA and CERCLA are not justified by demonstration that RCRA or
CERCLA have adversely affected readiness or that the changes
are necessary in light of the flexibility that already exists
within these laws. We think that it could have undesirable
consequences on the Nation's primary hazardous waste and
remediation statutes. States are concerned that the changes
could eliminate State authority in the cleanup process for
explosives and other range hazards, even in cases where the
ranges are now or will be State, local or private property.
I want to reiterate our desire to assist DOD and the
military services to continue to work with them in making
effective use of their active range resources, and to improve
the likelihood that those ranges can continue to be usable.
Thank you for requesting our testimony on this legislation. We
feel that we can continue to work with the military to solve
range cleanup problems without amending national environmental
statutes, and we think that kind of cooperation is our best
course for the future.
Thank you.
Senator Jeffords. Thank you again. Thanks to all of you for
excellent statements.
As the President has stated, we are in a war situation, and
it's important that we make sure that nothing is adversely
affecting our capacity in that regard.
I would like to ask a question of each of you, then my
partners here will have an opportunity also. My question is
first to Ms. Clark. With regard to the changes proposed to the
Migratory Bird Treaty Act, you suggested that no changes to the
Act should be made, especially while memorandums of
understanding are being developed between the Federal Agencies.
Would you elaborate on this and tell the committee what the
timetable is for the MOUs?
Ms. Clark. Certainly, Mr. Chairman. I suggested that there
should not be wholesale, sweeping exemptions to a law that has
not been adequately reviewed in the policy arena. The issue in
the Farallons is serious, and I'm not going to underestimate
that. But as the record shows, it is under appeal, and I also
understand that the military is working with the Fish and
Wildlife Service on a special use permit. So that might be
accommodated.
While I was in the Government, certainly with the Fish and
Wildlife Service, we spent a fair amount of time looking at the
Migratory Bird Treaty Act. It's a law that's over 80 years old.
It deserves a serious look and a serious policy debate on how
you accommodate environmental security with issues like
military preparedness. There are MOUs and I think policy issues
that are being evaluated, they certainly were in the former
Administration, I imagine they are being evaluated in this
Administration. So I think this is one of timeliness, and not
to have an immediate knee jerk reaction when there is not
documentation to suggest that there's a problem.
I believe that there can be ways through the policy arena
and through current law to construct a process by which
environmental security and military preparedness can be
achieved.
Senator Jeffords. This is for Ms. Clark and Mr. Henkin.
This Administration has said that the Clinton administration,
when you were director of the Fish and Wildlife Service, Ms.
Clark, decided that the Integrated Natural Resources Management
Plans, required under the Sikes Act, would provide for
appropriate endangered species habitat management, there was no
need to designate critical habitat on military installations
that have completed these plans.
However, in your testimony, and in yours, Mr. Henkin, you
say that they are not sufficient. Could you please clarify for
the committee the difference between what the previous
Administration was supporting and what is in this proposal? Ms.
Clark first.
Ms. Clark. Certainly. I did indeed work very closely with
the military, the Air Force in particular, in looking at the
INRMPs as developed under the Sikes Act. What this initiative
and this Administration does do is give blanket carte blanche
evaluation and carte blanche head nods to all INRMPs regardless
of quality. I was involved very clearly in a number of issues
with the military when we were evaluating the sufficiency and
quality of Integrated Natural Resources Management Plans, and
whether or not they provided conservation benefits to the
species that were under evaluation, whether or not the military
department had guarantees regarding implementation of the plan,
and whether or not there was adaptive management and monitoring
involved in all the INRMPs. That was the case in Camp
Pendleton, when in fact we proposed the significant overlay of
critical habitat, then based on the military readiness needs,
plus the quality of their resource management plan, we withdrew
that proposal.
So I'm not here to say that Integrated Natural Resources
Management Plans can't be sufficient. But to across the board
do a sweeping statement that if you develop a plan it's good
enough I think is shortsighted and biological suicide. It's an
incorrect way to address declining species.
Senator Jeffords. Thank you. Mr. Henkin.
Mr. Henkin. Yes, I'll just continue with that line of
thinking, which is that when the Service is considering whether
to designate critical habitat on military installations, it
takes a careful look at the INRMP to see whether there are
adequate provisions for the conservation of the species and
habitat found there, whether there is adaptive management, and
whether there is a long-term commitment to implementing those
provisions. It doesn't look just at whether there is a plan
that addresses these issues. It looks to see whether or not
there is a plan that addresses these issues adequately and
guarantees that they're going to be implemented.
This is not a theoretical discussion as to whether the
proposed exemption language implements existing policy. It
manifestly does not, as the chart that is included in my
testimony makes clear, my written testimony made to the
committee. The Fish and Wildlife Service is in the process
right now in the State of Hawaii of looking at designation of
critical habitat for plants throughout the State. As part of
that designation process, they have very carefully reviewed the
INRMPs for 11 military installations, both Army and Navy. They
have found in each and every case that those INRMPs were
wanting, that they did not have adequate funding, that they did
not have adequate management.
If this exemption were to become law, what you would find
is a much lower level of protection, inadequate protection for
endangered species and their habitats. So the current proposed
exemption does not implement existing policy. What the existing
policy does, and the part of the policy I think is quite
appropriate, is when it considers INRMPs as part of the cost-
benefit analysis. Under Section 4(b)(2) of the Endangered
Species Act, critical habitat designation must be based on a
cost-benefit analysis. So one of the things you need to put
into the equation is what type of management currently that
habitat and that species is receiving. Because that gives you
an idea of what incremental advantage designating critical
habitat will give.
Then you also look at the cost to the facility.
Camp Pendleton is an example of where there was a
determination made that, because of the adequacy of the
management that had been put in place there and the commitment
to carrying through with that management, in addition hearing
the concerns of the Marines about limitations on training, the
Fish and Wildlife Service exercised its discretion to eliminate
certain, actually all of the gnatcatcher critical habitat from
Pendleton. That is an example of the type of decisionmaking,
case-by-case decisionmaking, case-by-case balancing, that
exists under the current law and that would be taken away in a
blanket fashion, with no showing of military need and no
showing of adequacy of management, under the proposed
exemption.
Senator Jeffords. Mr. Miller, it is your understanding that
these proposals would affect closed military bases as well as
operational facilities. Is that correct?
Mr. Miller. Yes, it is.
Senator Jeffords. There has been some confusion about
whether munitions waste is currently considered to be a solid
waste under the Resources Conservation and Recovery Act. As I
understand these proposals, the munitions waste would be exempt
from the definition of solid waste?
Mr. Miller. That's correct. Munitions, explosives,
constituents, unexploded ordnance would all be exempted from
the definition of solid waste under RCRA.
Senator Jeffords. Is such an exemption a change from
current law?
Mr. Miller. Yes, it would be. In 1992, in the Federal
Facility Compliance Act, Congress directed the EPA to
promulgate regulations defining when military munitions become
solid waste. EPA enacted a regulation that specified a certain
narrow class of munitions with these solid wastes and withheld
judgment on determining whether waste, particularly at closed
transferred ranges, whether munitions of those ranges would be
solid waste or not.
Pending the Department of Defense's development of what was
known as the Range Rule, DOD had proposed to promulgate a
regulation governing the cleanup of munitions at closed,
transferred and transferring ranges. They ultimately withdrew
that regulation, it was never finally promulgated. EPA, when it
originally promulgated its munitions rule, had indicated it
would revisit the issue of whether these munitions were solid
waste or not. So they had expressed an intent, I think, to
regulate them. But they have not yet done so.
Senator Jeffords. My final question, I am generally aware
that the waivers of sovereign immunity have been hotly debated
in the context of enforcement of the environmental laws at
military facilities. I am concerned that this debate often
stalls cleanup. Is it your experience that the sovereign
immunity is often invoked by the Federal facilities and how
might this situation be affected by these proposals?
Ms. Miler. It is our experience that Federal Agencies
frequently rely on limited, frequently argue that the waivers
of immunity in the environmental law should be construed very
narrowly and that the States should not be able to regulate
cleanup of their facilities. In Colorado, we had a lengthy
litigation against the Army regarding cleanup at the Rocky
Mountain arsenal where they made sovereign immunity arguments,
among others. Ultimately the State prevailed in the Tenth
Circuit. The Tenth Circuit held that State authority under RCRA
exists side by side with Federal authority under CERCLA.
But what these amendments would do is, by amending the
definition of solid waste, to exclude most munitions, including
unexploded ordnance on closed ranges from the definition of
solid waste. That would likely be interpreted to preempt State
authority. That's because the RCRA waiver of sovereign immunity
is phrased in terms of State requirements respecting the
control and abatement of solid waste. So if the Federal statute
exempts munitions from the definition of solid waste, then they
don't fall within the scope of the waiver, and State efforts to
use State authorities or RCRA authority to address the cleanup
of those wastes would be preempted.
For example, we have a lawsuit that we filed, a citizen
suit, where the RCRA citizen suit provision against the United
States regarding the cleanup of unexploded ordnance at the
former Lowry Bombing and Gunnery Range, which is a 60,000 acre
range. It's a formerly used Defense site, now largely in
private hands, but some of it is in local public ownership.
It's on the eastern edge of the Denver metropolitan area, it's
about to become suburbanized. But if these amendments were to
pass, I think it could severely affect our legal position in
that suit, and affect the State's authority to ensure an
adequate cleanup of these lands that are about to become part
of the city of Aurora.
Senator Jeffords. Senator Smith.
Senator Smith. Mr. Miller, were you just talked about
closed basis or operational bases?
Mr. Miller. The amendments go to both, go to State
authority and EPA authority at both closed and operational
ranges. My response to Senator Jeffords' question primarily was
addressing the closed ranges.
Senator Smith. The lawsuit was over closed.
Mr. Miller. The lawsuit is at a closed range, that's
correct.
Senator Smith. You all heard the military officers who were
here before you. They're trying to do the best they can to lead
our troops at a very, very difficult time. But yet you all
heard them say that the existing statutes are difficult for
them, to put it nicely. If you want to put it a little more
abruptly, a little stronger, they can't work under them. The
remedy doesn't work. Did they mislead us? Or is there a problem
here? Those of you that, I think the four of you here who are
saying that the remedy they propose is wrong, well, let's make
that assumption for the sake of argument. Then what do we do?
Mr. Phillippe, what do we do? Just a short answer, please.
Mr. Phillippe. Sir, I think most of the examples that they
cited were outside of the area that our association deals with,
which is RCRA and CERCLA. I'm just not aware of any examples
where RCRA and CERCLA have hopped up and gotten in their way at
a range.
Senator Smith. You said that you consistently, I'm trying
to paraphrase, you have consistently worked with DOD and the
military service to resolve range related issues dealing with
those statutes. In how many instances have you done that?
Mr. Phillippe. We tried to do some canvassing to figure out
some actual examples where RCRA or CERCLA either had gotten in
the way of a readiness or training issue, or where we'd worked
things out. The list was not a very good list. We just don't
have a lot of examples at all.
Senator Smith. How many?
Mr. Phillippe. Typically the kinds of things that I got
back were places where we've made modifications in cleanup
schedules, because funding has been shifted from the
environmental cleanup program to some other military need.
Senator Smith. Then there are some problems, then, you have
to deal with it, right? There are some problems being addressed
here. If anybody else would like to comment on the first
question, please go ahead.
Mr. Henkin. Yes, sir. With respect to whether there's a
problem, my personal view, and our EarthJustice's view is, ``if
it ain't broke, don't fix it.'' The laws already provide for
the flexibility to address the issue that have been raised by
the first panel, and with the exception of the MBTA, and we can
address that separately, they all have provisions for
exemptions. In response to your question, sir, the General made
it quite clear that the military never have has requested any
of those exemptions, but if it needed them on an emergency
basis, the President could respond quickly. With respect to the
Endangered Species Act, it is not the President from whom the
military would have to seek an exemption, but it is the
Secretary of Defense, the Cabinet official with the primary
responsibility for making sure that our military is prepared.
So, in light of the GAO report which seriously questions
the factual foundation, basically there isn't data there. I'm
not saying that there aren't issues, but what I am saying is
that we don't have any real information about what the issues
are, so that we can approach them in a productive fashion. Many
of the examples cited, at least the ones that I'm familiar
with, have nothing to do with the proposed changes to the laws
that they're talking about.
Senator Smith. But again, we're talking about the
possibility of leading men and women who are trained in battle,
who are properly trained into battle. I think you're correct,
that the law, you are correct that the statutes do provide
remedies. I don't think that's the issue. I think the issue is,
is the remedy acceptable in a difficult time such as a time as
war. We can say a jury can assess a death penalty and then
maybe 30 years later maybe it's applied, if it's ever applied.
That's not acceptable. It might be great for the guy on death
row, especially. But I mean, the point is, we don't have that
kind of timeframe to work with.
Let me just give you an example. You said, you used the
term that the injunction we're talking about in that military,
in that Farallon de Medinilla case here's what the court said.
Now, you're the General and you're out there and you're told
you have to train the troops. I'm not arguing the point about
it, I want to protect wildlife as much as anybody else. But
you're the General out there, you have to conduct these
exercises, you're told to have your guys prepared to be in the
Persian Gulf next year or whatever. And here comes the order,
upon consideration of the emergency motion for stay of
injunction pending appeal, ordered that appellant's motion be
granted, that is, that they be allowed to continue to train,
the appellant being Secretary Rumsfeld and the Secretary of the
Navy.
The District Court's May 1, 2002 order enjoining appellants
from conducting military training exercises on the island of
Farallon de Medinilla that can potentially wound or kill
migratory birds is stayed, pending further order of the court.
So it's a temporary stay, not a permanent stay.
So now you're the officer out there, and you're damned if
you do and damned if you don't. If you go out and conduct the
exercises, and more birds get killed, then you're further
exacerbating your problem. If you don't conduct the exercises,
you're risking the lives of men and women in battle. We could
argue that, but the point is, the General out there, he's got
to make the decision. It's not a clear cut case.
So I think what we ought to be doing here, instead of
arguing about whether the exact summary of the request of the
Administration is appropriate or not, Ms. Clark, and you said
that, I don't think we should b arguing about that. Maybe it
is, maybe it isn't. Maybe there are just some things that I
think we might be misreading what the intention was here.
I have talked to all the officers involved in this, and I
believe that they want to comply, they just want some
reasonable standard that would allow them to make decisions
that they have to make. When the President says, get the troops
ready for Iraq tomorrow or whatever the case may be, they've
got to do it. You know, these kinds of court orders, with all
due respect, they could be forced into court again, for perhaps
exacerbating a species problem or a migratory bird problem as a
result of the court order that told them to do it anyway.
That's the only point I'm trying to make. I think we should
get away from saying that these guys are wrong in bringing this
point up and that they somehow want to violate all the laws. I
think Senator Inhofe made a very good point, he talked about
species growing as a result of management on the reserve. I'm
familiar with the cockaded woodpecker at Camp LeJeune, because
I've been down there and I've seen that. But again, if the
woodpecker has a certain amount of habitat, and I don't have
the specifics, but just say it's 100 acres of habitat, and
because of good management, the bird begins to move into 200
acres of habitat, and you have five times as many woodpeckers
as you had before, and I think one of the Generals or the
Admiral used the example of the turtles. They started with 8 or
10 turtles, now they have 120 turtles as a result of
management. So now they're going to be punished for conducting
the exercise.
This is the part that I'm trying to get a handle on. I have
interest in both areas here, as a member of this committee and
the Armed Services Committee, and Senator Warner does. But I
just think we're missing the boat if we're going to say that
the intention here for the military is to throw all the
environmental laws out and just act on every single one of
these. I think what they're asking for is clarification. I just
would ask you, if you could, to respond in what might be a
reasonable clarification that an operational officer in the
field in some CINC somewhere in the world has to make a
decision on.
Ms. Clark. If I could try and respond to that, Senator. I
think it's unfortunate that this is building to becoming a
choice between protecting our natural heritage or defending our
national security. Our challenge is to figure out a way to do
both. I am not about to discount the concerns of the military
readiness professionals. I've seen it and I've lived it and
it's very real. All we have to do for those of us that are
around the Chesapeake Bay is look at what the green space is
that's left, it's Aberdeen Proving Grounds, it's Fort Meade,
it's Patuxent Naval Air Station that host a terrific abundance
of wildlife that have been lost around the Bay because of just
the sheer development pressures.
At Fort Bragg, I can remember clearly being down there with
the military officers while we sat and looked at what they used
to call the measles map, which were the red-cockaded woodpecker
trees all over the installation. And a lot of their compression
of training activity may have been certainly a function of what
was happening with endangered species. But a lot of that open
area was being compromised by the sheer enormity of the
development pressure.
To Fort Bragg's credit, and the Army's credit, they worked
with the Nature Conservancy and the Fish and Wildlife Service
and others to create some buffer around Fort Bragg to take the
pressure off the installation. So the military just because of
their virtual existence and their buffer areas do create some
of the havens, because of the development pressure.
Senator Smith. I don't want to belabor it, but I just would
like, and it's not meant to be hostile, it's just meant to try
for me to understand what the person on the base whose job is
to advise the General on wildlife management, and the General,
supposing in the case of the woodpecker at Camp LeJeune, it's
not a case, it's a fictitious example, but let's say that the
bird for whatever reason has now moved out into hostile
hundreds of other acres of the base.
Well, what happens? What do we do? Does the bird get the
land, or does the military get the land? What happens? What are
we supposed to do in a situation like that where our own
success in preserving that particular wildlife habitat and the
wildlife itself comes in direct conflict, because it continues
to encroach? What do we do?
Ms. Clark. I referred to in my testimony the notion of
early involved consultation. That hasn't been that long that
the military and the Fish and Wildlife Service or National
Marine Fisheries Service have worked closely in trying to
balance the needs for environmental protection with military
readiness. In those instances where the Services were brought
in early to understand the battlefield conditions or the needs
of military preparedness, they have worked out collaborative
compromises. I have seen that over and over and over.
My concern and the concern of the National Wildlife
Federation is to have a carte blanche, sweeping exemption is a
bit shortsighted, when in fact what we need to encourage is
collaboration and early involvement and reconciliation of
concerns and differences in the dynamic environment, rather
than trying to accommodate 25 million acres, 400 plus
installations, with one sweeping statement.
Mr. Henkin. If I may, sir, with respect to the two issues
that you raised, FDM, and the red-cockaded woodpecker. First,
with respect to the woodpecker, there is nothing in the
Endangered Species Act that prohibits the Fish and Wildlife
Service from authorizing the military to kill, to take
individual members of endangered species as long as it is not
going to jeopardize their continued existence. I think a lot of
the concerns that were expressed by the previous panel had to
do with limitations on training imposed by the Section 9 take
prohibition, rather than critical habitat. Because very few of
these installations have critical habitat designated on them.
So with respect to that expansion, to the extent that
you're not jeopardizing, in other words, pushing the bird to
extinction, the law as it exists already allows for this
mechanism to try and mitigate and minimize that take to the
maximum extent practicable.
Senator Smith. The law allows it----
Mr. Henkin. The law allows it and it can be done.
With respect to FDM----
Senator Smith. I don't want to encroach on Senator Warner's
time, but the law allows for it, no one will dispute that. It's
the way the law allows for it that's the problem. You can't get
a decision in a reasonable amount of time. That's the issue.
Nobody's answered that question yet.
Mr. Henkin. I think with respect to FDM, the Navy
recognized the need to get a Migratory Bird Treaty Act permit
back in the 1990's. In 1996 or 1997, it applied for a permit.
And the Fish and Wildlife Service denied it a permit, because
the Navy had not put together a permit application that
satisfied the requirements of the law. Rather than try to work
with the Service, and this is now 5 years ago, rather than try
and work with the Service to see whether or not there was the
possibility to get a permit under existing regulations, or if
there needed to be new regulations to address this unique
situation, the Navy went ahead with its bombing.
The situation right now is that the Department of Justice
attorney has represented to the court that both the Department
of Defense and the Fish and Wildlife Service believe that,
under the current legal structures, they can secure a permit.
Now, that's still in progress, both in the courts and in the
permitting process. So we don't know what the outcome of that
is going to be at this point.
But as far as the commander who is concerned about whether
he can schedule training, I don't think there's any dispute--
and we represent the plaintiffs, who are now the appellees--
that while the injunction is stayed, the Navy may train. That's
the situation that we have right now. I guess the last thing on
that score is that with respect to the Migratory Bird Treaty
Act, this has been in effect for over 80 years. In all that
time, this is the first instance in which the military has
expressed any concerns in terms of its application. It just
seems to us that it is premature to exempt all military
activities from the MBTA without additional working through
these issues in the courts.
Senator Jeffords. Senator Warner.
Senator Warner. Thank you, Mr. Chairman.
Mr. Chairman, we've had a good hearing. And I say that to
you and the Ranking Member, I've learned a lot and I have more
to learn. But I want to phrase my question to you, just to the
panel, if anybody wants to volunteer an answer. I've looked
over your credentials and background and you certainly have,
all of you, a lot of experience.
No. 1, we're all equal patriots. You're no less a patriot
than the officers who sat before you here with 30 plus years of
service. I start with that assumption. And you're concerned as
I'm concerned about the young persons, basically your age, Mr.
Henkin, who are moving out there into combat tomorrow. And they
need to train. So we're all on the same base of fact.
The problem as I see it is that these officers have come
forward to represent that the courts in their decisions and so
forth are just impeding the progress to the point where they
can no longer deal with going through, as you said, Ms. Clark,
the regulations and the hearings and all these things. In the
meantime, the President is saying, look, I want this aircraft
carrier or this division in place in 60 days. So we've got to
do something. It seems to me, is there a short-term fix on this
thing while we all sit down over a longer period of time to try
and understand it? In other words, I see the pressure from our
national defense. I don't want to run roughshod over the
environmental laws.
Has anyone got an idea? Am I wrong in the assumption that a
clarification could open up certain interpretations which would
allow far more use of other areas in military ranges in such a
way that it would be antithetical to environmental law goals,
and therefore we'd better focus on just, the President says, I
need this range and I've got to use it and I've got to use it
now, despite this court's decision. Can anybody help me on
this? What do we do?
Mr. Henkin. Senator, if I may?
Senator Warner. Yes.
Mr. Henkin. With respect to all the laws that the committee
is considering today with the exception of the Migratory Bird
Treaty Act, there is currently immediate relief available for
any essential national security training. If the laws are
deemed to be in conflict with that training happening, and
that's via an exemption that's automatic under the ESA, and as
I understand it, although I'm not----
Senator Warner. That was my understanding when I waled into
the hearing room. But right in that very chair sat the Marine
Corps officer saying, we just don't do it any more, it takes
too long, we can't get it done. Did you hear him on that?
Mr. Henkin. I did hear, yes, sir, I did hear that he said
that not only, ``We don't do it any more,'' but that they have
never done it. I wonder why they haven't tried it. And I agree
with those who testified earlier saying that these should be
used sparingly. The intent, these exemptions should be used
sparingly, they are intended to deal with only----
Senator Warner. I agree with that.
Mr. Henkin [continuing]. Situations of true national
emergency and national security, not convenience or expedience.
I am not suggesting that the other gentlemen are seeking them
for that purpose. But they haven't tried that process. And the
answer that I heard to Senator Smith's question about how
quickly could you get an exemption from the President I believe
was overnight. That's not how they do it. They've never done
it, but he represented it--but it could be done if we were
truly talking about national security. And with respect to the
Endangered Species Act, it's the Secretary of Defense who makes
that finding.
Again, the exemption from any provision of the Endangered
Species Act, be it the take prohibition, critical habitat, even
pushing species to extinction, is in Secretary Rumsfeld's sole
discretion to invoke that. Again, he should not do it lightly;
he should not do it frequently. But if your concern is, and I
think we all share this concern, that our country address
whatever threats face it, as we need to do, the authority
exists under the existing laws to address it in the short term.
With respect to the Migratory Bird Treaty Act, those issues are
still being worked out in court, and the status quo, the
current situation is that the Navy and any other branch of the
services that wishes to train at FDM can do so.
Senator Warner. I know each of the officers personally,
have known several of them for a long period of time. They are
individuals that are well intentioned and very clear, law
abiding individuals. They have a legion of people behind them
who are environmental experts.
Now, somewhere, there's a breakdown. Because I have to
assume that those environmental experts in the Department of
Defense are as knowledgeable, and you've spoken very
knowledgeably here, as you are, why are they not telling these
officers, well, you can do it this way if you wish, you don't
need all these waivers and clarifications? Somewhere there is a
breakdown, and I intend, presumably others likewise, to sit
down in a room with all these people and put to them the tough
question, you know, Mr. Henkin says you've got the authority to
do it, now why are you coming up here asking for this relief?
Ms. Clark. Senator Warner, I think I have some insight into
their reluctance to raise the flag of an exemption. And I also,
in listening to the four gentlemen in the previous panel, have
come to realize that what they have proposed isn't going to
solve their problem. Because especially for the Endangered
Species Act, when one of you asked, give me some examples, I
think it was Senator Smith, give me some examples for the
record of conflicts, most of the examples that they gave would
not be resolved by their proposal.
So I think part of this, if we could all just take a deep
breath and better try to collaborate and understand what the
rub is and what the conflict is, we might be able to find some
creative policy solutions. I think, and I've been in enough of
these meetings to know that the reluctance to declare the
Secretarial exemption to the Endangered Species Act clearly has
to do with who is going to take the responsibility and shoulder
the responsibility for making that decision. It's not
politically palatable to make a decision to circumvent an
environmental law. But clearly, the Secretary of Defense has
that capability. I think it just has been, there's been
reluctance in the past. I think in a time of war, with clear
documentation, that I'm sure they must have, it is within the
jurisdiction and has never historically happened.
Senator Warner. Mr. Chairman, I hope that our record will
be available soon, so that we can take this colloquy to the
Department of Defense and show it to them and say, look, these
are well intentioned people, they want to try and help, what is
your rebuttal to this? I'm curious, is anybody in the audience
from the Department of Defense? Just raise your hand. In other
words, they all left the room and nobody's listening to this--
in the back corner. You're going to hear from me, OK?
[Laughter.]
Senator Warner. Take into heart what we're trying to do
here, please, sir, I say that respectfully.
Let me ask one last little clarification. I've sort of
rambled around a little bit. And that is the word
clarification. Would it be better from the protection of the
framework of environmental laws to try and seek clarifications
or to proceed on these routes of the Presidential exemptions or
waivers?
Mr. Miller. May I respond to that, Senator? At least with
respect to the pollution control laws, RCRA, CERCLA and the
Clean Air Act, I think it would be preferable to rely on the
case-by-case exemptions. As we testified earlier, it's our
understanding that the Department of Defense has not identified
situations where there have been actual impacts caused by those
three laws on readiness. We heard a lot of examples of impacts
on readiness today. Listening to testimony it appeared to me
that those all occurred under the animal protection laws.
The only example that was given with respect to RCRA or
CERCLA was the citizen suit that's been filed in the State of
Alaska. I would disagree with the testimony, with the
conclusions that the previous panel drew that if the plaintiffs
are successful in that lawsuit that it would have a significant
impact on readiness. I think the consequence would be actually
to further readiness by maintaining range sustainability.
Because the result would be that they'd have to get a permit
under RCRA. You could establish, as we've described in our
written testimony, it would be possible to establish permit
conditions that allowed for continued military training while
protecting the environment. I don't really see any real
conflict there.
Further, you have expressed serious concern that any
clarifications, whatever you want to call it, to the laws, not
be extended beyond the Department of Defense, basically not to
go beyond military readiness concerns. I think that the
existing national security exemption in each of the pollution
control laws clearly fits that bill. That's what it's there
for. It's not available to private industry, it has to be made
under those three laws by the President.
But it's not a significant burden. In the written materials
that I submitted, there is an example of a Presidential
determination that President Bush made this last year with
respect to security concerns, not readiness, but national
security concerns at the Air Force Groom Lake facility in
Nevada. This exempts the Air Force from having to comply with
certain RCRA information requirements. It's three paragraphs
long.
So I don't think it's a significant burden, particularly
for the pollution control laws, where it appears to us that the
likelihood of conflicts between the requirements of those laws
and military readiness is really fairly remote. The case-by-
case exemptions that already exist in the statute----
Senator Warner. Does anyone else just wish to address the
question of clarification versus exemption with regard to the
presentation of the environmental laws?
Mr. Cohen. Yes, Senator Warner, I'd like to address that
very briefly. I was struck by the tenor of the gentlemen in the
first panel. How often in public policy debates do we have the
opportunity to see problems coming? The gentlemen came over
here today because they are noticing that something isn't
working, they are encountering problems. When they look at the
existing regulatory structure, they are finding that with
respect to training soldiers for combat, there are such
impediments on that that it's difficult for them to get from
here to there.
They came over here today, they explained to us the
difficulties they encountered, and they made proposals as to
how they were to be addressed. They universally came up with
the conclusion, came to the conclusion that clarifications were
the way to go, clarifications, not exemptions, clarifications
were the best way to address this problem. It's very difficult,
as the GAO report has been referred to, to talk about this
issue in terms of quantity. In other words, what we're talking
about here, in training that goes on on bases all over this
country on a day to day basis, not the kinds of things that
would require a Presidential order of some kind, just the kind
of day to day training to train soldiers for the rigors of
combat, that certain things need to be done.
It is, I think, vitally, vitally important for us to
realize that they have suddenly come up with, encountered
barriers that they don't know how to deal with. What I hope we
have begun here this afternoon is a dialog on how to deal with
this. We cannot proceed on the assumption that there are no
problems. We must instead look for solutions.
Mr. Hurd. If I could add one comment, following Dr. Cohen's
remarks. It seems to me that one problem with this exemption
route is that it imposes upon the President the responsibility
to make decisions that ought to be made by a field grade
officer, in many cases, about what training is appropriate and
when it's needed. Moreover, the standard that must be met here
is very high, for a case-by-case basis. And that particular
case is paramount national security. The President, it seems to
me, has better things to do than worry about training decisions
that ought to be made at that low level.
With respect to Mr. Miller's comments about closed bases,
I've sat here with this law in front of me trying to go through
it, trying to grasp why he thinks it applies to closed bases. I
can't do it. It seems to me the law does, the changes do what
the Joint Chiefs have asked. But if there is some problem with
that, some ambiguity he finds, it seems to me the solution is
to write in a new sentence, not to chuck the whole idea.
Senator Warner. I thank you, I have used all my time.
Senator Jeffords. Senator Smith.
Senator Smith. Tell me one thing, help me understand this.
Were they wrong in the FDM case? Were they wrong in the FDM
case to go through the court, to seek relief through the
courts? Should they have gotten a waiver and not gone through
the courts? I'm just asking as to what the proper procedure
should be in a case like that. Did the military err by asking
for relief in the courts in that particular case?
Mr. Henkin. The case was brought by a citizens group. So it
was not at the Navy's initiative, it was in response to the
district court's order. I guess my perspective on it is similar
to that that Ms. Clark expressed, which is, back in 1997, 5
years ago, had the Navy worked with the Fish and Wildlife
Service to try to address how to reconcile those needs, we
wouldn't be----
Senator Smith. You took them to court, didn't you?
Mr. Henkin. Well, because, and as the district court found,
because they were bombing and killing birds without a permit.
There is no, no one has ever said to the court, and no court in
this action has found that, if they had a permit, there would
have been any problem. The problem was, like a lot of
regulatory programs, the Migratory Bird Treaty Act requires
people who are taking action to seek out a permit, make sure
they have the proper things in place before they go about the
action.
Senator Smith. But they appealed, I know they took them to
court for the birds that were killed. But what I'm trying to
get at is, if they appealed for a decision, if they went to the
President for an exemption, that doesn't stop your lawsuit.
Mr. Henkin. If an exemption were granted, it sure would.
Senator Smith. It would stop the lawsuit if an exemption
were granted? Well, I think Mr. Hurd made a very good point,
though. For the President to get into a command, it's not just
a command decision. I mean, it is a command decision in terms
of the training. But it's also a decision about, on the other
side of the coin, about the wildlife. The President, I don't
think in most cases, would have that kind of detail on his
plate, to be able to make a good decision without a whole bunch
of information that would have to flow all the way up.
So I mean, it just seems to me, the bottom line is we have
some problems here in term of process. I don't think there's
anybody trying to get around the law, but I think there is a
problem in term of process as to how we work this out when real
problems occur.
Mr. Henkin. In terms of the process, I go back to the
Endangered Species Act and the designation of critical habitat
which allows a case-by-case review, which we do strongly favor,
rather than blanket exemptions. Particularly with the critical
habitat provisions, blanket exemptions that would extend beyond
military training facilities.
But in that, there are two levels of case-by-case review.
One is in the designation of that habitat under Section
4(b)(2), and that's a Camp Pendleton type situation where there
was no need for a Presidential exemption. It was the cost-
benefit analysis that the law required that led the Fish and
Wildlife Service to hear the Marine's concerns and exempt the
entire facility. If the Department of Defense is dissatisfied
with the outcome to the extent that it feels that not only does
it burden . . . . Because I think we all have to be honest,
that environmental protection doesn't come for free; it
requires an effort from all Federal Agencies. In fact, under
the ESA, all the American people bear some percentage of that
burden, to make sure we protect our species and our habitat,
and poll after poll shows that the American people feel that
that's the right way to go.
But in the case where the case-by-case review in Section
4(b)(2) led to a situation where the Chiefs of Staff felt that
there was truly a national security issue raised, it would not
fall to the President but to the Secretary of Defense to make
that determination, again, case by case.
Senator Jeffords. Thank you all. This has been very
helpful. I'm not sure how much we cleared up or what we will
decide, but it's been fascinating to listen and to ponder what
this committee must do, if anything. Thank you all.
Before I close, I want to ask unanimous consent for the
statement of Senator Lieberman to be put into the record
without objection.
We should warn you that officially, all the members that
would have been here have the right to now write you questions.
But I wouldn't stand waiting by the mail box too long.
Thank you.
[Whereupon, at 5:23 p.m., the committee was adjourned, to
reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
Statement of Hon. Max Baucus, U.S. Senator from the State of Montana
Mr. Chairman, I applaud you for holding this hearing today on the
Readiness and Range Preservation Initiative provisions that have arisen
in the context of the National Defense Authorization Act for Fiscal
Year 2003. This is an important debate that raises issues under the
jurisdiction of this committee and I am pleased, Mr. Chairman, that we
will have this hearing record to share with the conferees of the House
and Senate on the Defense Authorization bill.
Mr. Chairman, I think we can all agree that it is imperative to
maintain our military's superior readiness capabilities, particularly
as we call upon our armed forces to defend us in the war against
terrorism. I believe we are united in our desire to ensure that all of
our troops have the training and experience they need to enhance their
effectiveness in combat and to minimize the likelihood of casualties.
The testimony of the Vice Chiefs of Staffs for our armed forces,
and the Readiness and Range Preservation Initiative that they advocate,
raises the concern that certain of our environmental laws may impede
the military's ability to maximize the readiness of its troops for
combat. This is not a concern that we can take lightly, and we should
consider the matter seriously. I know that's precisely the reason you
called this hearing today, Mr. Chairman.
That said, we must also recognize that our bedrock environmental
laws play a vital role in protecting the health and well-being of our
citizens, and our precious natural resources. I firmly believe that we
can have the greatest, most well-prepared military in the world and
maintain our high environmental standards. And, Mr. Chairman, I'm not
sure that we need to make changes to current law to achieve this
balance.
From what I have found in the testimony submitted to this committee
today, the Department of Defense has developed a remarkable record of
environmental stewardship, coming to the table with other Federal
agencies to develop innovative solutions to enhance military readiness
while protecting the environment and public health. It has done this
despite its previous legacy of large-scale environmental contamination,
much of which continues to haunt the Department today and cost the
taxpayers billions of dollars.
Part of this new-found success is due to the environmental laws
developed in this country over several decades and the public's
emerging environmental consciousness. Most of our environmental laws
provide some measure of flexibility to our armed forces to respond to
national security concerns on a case by case basis. Some of those
flexibility mechanisms have never been invoked by the Department.
So, Mr. Chairman, I hope this hearing will help us better
understand exactly what the Department of Defense's concerns really
are, and whether the environmental exemptions, or ``clarifications,''
requested by the Department actually address those concerns.
Thank you again Mr. Chairman for holding this hearing today, and I
look forward to hearing the testimony of the witnesses.
__________
Statement of Hon. Joseph I. Lieberman, U.S. Senator from the
State of Connecticut
I want to begin by thanking the chairman for his leadership, as
always. Today we consider attempts to exempt the Department of Defense
from or otherwise weaken DOD's compliance with a number of major
Federal environmental laws. These include: (1) the Superfund law and
the Resource Conservation and Recovery Act, both of which govern toxic
waste management and cleanup; (2) the Wilderness Act of 1964, which
concerns Bureau of Land Management control of public land, (3) the
Endangered Species Act, and (4) the Clean Air Act.
As a member of the Defense Authorization Conference Committee and a
member of the Committee on Environment and Public Works, I feel I have
a particular responsibility to make my position on this matter known,
and to make it clear.
I have two major objections to the blanket exemptions to
environmental law that some are seeking to push through conference.
The first objection is procedural.
The changes being contemplated are substantial. They will have far-
reaching effects on environmental and public health law. Therefore,
they demand thorough scrutiny in the congressional committee that is
responsible for such consideration. In large part, that is this
Committee on Environment and Public Works.
When profound changes to our environmental protection regime are at
stake, we can't go through the legislative backdoor or side door. We
owe it to the American people to go through the front door--and that
means full consideration in this committee.
I am grateful for today's hearing, but this should be only the
beginning. It would be an inappropriate usurpation of our oversight
responsibilities, not to mention a waste of this committee's
considerable expertise, for the Defense Conference to rush the changes
through.
My second objection is substantive.
There may very well be a need to carve out some DOD exceptions and
exemptions to the environmental laws I've mentioned. Especially in the
midst of the war on terrorism, we must be prepared to adjust any and
all regulations that might interfere with our military preparedness.
But we must not jump to the conclusion that these critical laws
need to be busted up with a sledgehammer rather than carefully altered
with a scalpel. That is what we would, in effect, be doing by allowing
this matter to jump over the consideration of this committee right into
the Defense Authorization Conference Committee.
At the present time, we have no reason to believe that compliance
with these laws would in any way hinder the readiness of our armed
forces. In fact, as the General Accounting Office reported last month,
the military's own readiness data does not show that environmental laws
have significantly affected training readiness. The GAO also found that
DOD's readiness reports show high levels of training readiness for most
units. And 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.
So the available evidence shows that strong environmental defense
and strong national defense can coexist--and are, in fact, currently
coexisting. Let's not misrepresent the facts and be forced into a false
choice that we will later regret.
The fact is, what we know about this problem so far suggests that
it's not the fault of the environmental laws where and when DOD is
having compliance or readiness problems; in most cases, the bulk of the
burden--and the bulk of the blame--appears to fall on DOD's shoulders.
That may or may not be the case when we finish studying this issue--as
I said, there must be room for flexibility within these environmental
laws--but it underlines the importance of thoughtful consideration, not
a mad rush to undercut these critical protections, one by one.
I am eager to consider such changes and, if and where appropriate,
give DOD additional flexibility under the rules. But when we do, we'll
do our editing with a slim red marker--not, as some would have it, with
a match.
Thank you.
__________
Statement of Hon. Barbara Boxer, U.S. Senator from the
State of California
Mr. Chairman, I want to thank you for holding this hearing today.
We have the finest military in the world. And the brave men and
women of our military are the best fighting force in the world. That
has been evident to all of the world since the tragic events of
September 11.
Over the last 10 months, we have called on our military to carry
out a global fight against terrorism. That is an important fight. And
the military has legitimate needs in carrying out that fight.
But, it is not legitimate, in my view, to use the war against
terrorism as an excuse to run roughshod over our environmental laws.
The Department of Defense has asked Congress to give it blanket
exemptions from six environmental laws that everybody else--in the
public and private sector--is required to meet.
Yet, I have seen nothing specific to substantiate DoD's claims that
broad exemptions from some of our most important environmental laws are
necessary.
First, Mr. Chairman, most environmental laws already have an
exemption for national security. For example, the Endangered Species
Act allows for an exemption if ``the Secretary of Defense finds that
such exemption is necessary for reasons of national security.''
Second, in the cases that I'm familiar with, under existing
environmental laws, the military has been allowed to continue with
environmentally destructive activities as long as reasonable
modifications are used to protect human health and the environment.
Third, the military in general does not have a problem getting
permits for their projects. To my knowledge, the National Marine
Fisheries Services has never denied the military a permit under the
Marine Mammal Protection Act. We do not need to weaken the law.
A recent example in my State at Fort Irwin in southern California
involves the Endangered Species Act. That base is home to numerous
endangered desert species and includes some of the last remaining
habitat for the desert tortoise. The Army engages in heavy-duty tank
maneuvers across this landscape, despite the tortoise. However, it
avoids certain areas and takes certain precautions to minimize the
impact to the tortoise. That is an appropriate balance.
We entrust the military to 25 million acres of public land. A lot
of that land contains important habitat for fish, wildlife and birds,
including approximately 300 threatened and endangered species. While I
am sure the military would be pleased to have those lands designated a
sacrifice zone for wildlife, we can't afford to. Too much of the rest
of our landscape has been decimated. The military, like all Federal
agencies that are entrusted with our precious and multi-purpose public
lands, must do its part.
Our military exists to protect the health and well-being of our
homeland and our citizens. Yet ironically, the effect of DOD's far-
reaching and audacious proposal is that its domestic activities would
lead to the degradation of our homeland. And in the case of the air
quality and hazardous waste exemptions that DOD is seeking, it would
create a significant public menace.
I can think of no reason that DOD should be allowed to leave behind
munitions, ordnance, and toxic waste. Under this proposal, DOD would
not be required to clean up live ordnance on or off the base! Why? How
do long-term clean-up efforts affect military readiness? That is a
direct threat to the civilian population.
Similarly, I can think of no reason that the military should be
given a blanket exemption from the Clean Air Act for 3 years. Why? Why
3 years? And why every facility? We know that air pollution causes
deaths. We know it causes asthma in children. If that isn't a threat to
``homeland security,'' I don't know what is.
We better have very good reasons to allow increased air pollution,
increased toxic waste, and increased wildlife destruction--but I have
yet to see any.
How will killing whales and songbirds increase military readiness?
How will leaving PCBs, heavy metals, and other poisons in our own
native soil increase military readiness? How will the release of
poisons like sulfur dioxide into our air increase military readiness?
Unless there are valid answers to those questions, there is no
justification for this proposal.
Admittedly, the military's needs are complex and varied. In some
cases, it may be entirely appropriate that they be relieved temporarily
of their environmental obligations so that the nation's security can be
ensured. But that is a serious decision. And it should be done on a
case-by-case basis. The current statutes provide for such case-by-case
decisions. A blanket exception simply is not necessary.
__________
Statement of Hon. Jon S. Corzine, U.S. Senator from the
State of New Jersey
Thank you, Mr. Chairman. I appreciate you holding this hearing on
the Administration's proposals on military readiness.
Mr. Chairman, like all of my colleagues I strongly support military
readiness. The war on terrorism demands that our troops receive the
best training possible, and be prepared for any contingency that they
might encounter.
But I also believe that we need to be careful about what we
sacrifice in the name of the war on terrorism, whether it's civil
rights or environmental protection.
So I am here today to say that I oppose the Administration's
proposals to provide blanket exemptions from our environmental laws to
the Department of Defense. DOD has asserted that these exemptions are
needed for readiness, but they simply have not made a compelling case.
That's not just my opinion. That's what the GAO found when they looked
at the issue in May of this year.
I'm sure we will hear some damning anecdotes today about how
environmental laws have caused problems. But to provide blanket
exemptions on the basis of a few anecdotes is at best a knee-jerk
reaction to what has not been shown to be a systemic problem.
Furthermore, most environmental laws already have provisions that
enable exemptions in cases of national security. In the case of the
Endangered Species Act, the relevant provision has never been used,
which to me strongly suggests that the ESA is not hindering DOD's
ability to train and prepare our troops.
Mr. Chairman, let me repeat: I strongly support DOD in the war on
terrorism, as do my constituents. We all support doing what it takes to
ensure that our troops our ready. But I can't support additional
exemptions from environmental law when they have not been shown to be
needed, and when current law already contains mechanisms to address
national security concerns. Thank you.
__________
Statement of Hon. Ron Wyden, U.S. Senator from the State of Oregon
Mr. Chairman, this committee has a bipartisan tradition that the
Federal Government should be covered by the same environmental laws the
private sector has to live under. There shouldn't be a double standard.
When this committee last considered Superfund reform, I was
prepared to offer an amendment along with Senator Voinovich to
eliminate the double standard in the Superfund law of how it treats
private sector Superfund sites and Federal facilities. This markup was
suspended before our bipartisan amendment came up for a vote.
The Wyden/Voinovich amendment was the same amendment that Senator
Allard and I offered the year before and that was approved during the
Committee markup of S. 8.
This issue is about the health and safety of our citizens. If you
live downwind or downstream from a contaminated site, it doesn't matter
whether the owner of the site is a private company or the Federal
Government. If your health is in jeopardy, you need the same level of
protection no matter who the owner is. You need equal protection under
the law.
What the Department of Defense's proposal would do is create a
double standard--the EPA would have one set of rules for the private
sector and another for Federal agencies.
This year, we've all been given a vivid reminder of the role the
Department of Defense has in protecting our country. I appreciate the
work of our military and of the men and women who are part of it. This
hearing is not in any way about whether or not we support our armed
forces. That's a given. It's about balancing our national security with
our environmental security.
I understand that the DOD's believes some of our environmental laws
are endangering military readiness by limiting certain types of
training. However, the GAO stated in a report published last month,
that the military services had not been able to demonstrate any
reduction in readiness due to laws such as the Endangered Species Act
or the Migratory Bird Treaty Act.
My concern about what some are seeking, is that it could invalidate
hundreds of complex negotiations worked out between the citizens of
this country and State and Federal agencies. The Department of
Defense's proposal would permanently exempt DOD from having to work
with EPA and State agencies on the clean-up of sites such as the
Umatilla Chemical Depot in my home State of Oregon.
That chemical weapons depot contains 11 percent of the nation's
deadly nerve agents such as sarin and mustard gas. As you can imagine,
the communities in this area have asked for, and rightly received, good
faith assurances that every possible precaution would be taken to
guarantee their safety. In fact, the Governor has spent most of the
last 8 years negotiating a dependable emergency preparedness plan with
the community, as noted in the Seattle Times of June 19:
Kitzhaber and Oregon regulators are right to demand high standards
for the disposal of the chemical weapons. Their efforts no doubt have
made the process safer for the public.
If these proposed amendments became law, DOD would have the power
to come in and wave the agreements and procedures that have been
reached in Umatilla County. That doesn't sound to me like the
participatory democracy the Founders had in mind.
Our citizens who live in the shadow polluting at contaminated
Federal facilities should not have to wait years or decades to obtain
the health and environmental protections our laws are supposed to
provide. I urge all members of the Committee to support the bipartisan
tradition on this Committee to provide citizens who live downwind or
downstream from Federal facilities equal protection under our
environmental laws.
__________
Statement of Adm. William J. Fallon, U.S. Navy, Vice-Chief of
Naval Operations
INTRODUCTION
Mr. Chairman and members of the committee, thank you for this
opportunity to share my views regarding how the Readiness and Range
Preservation Initiative (RRPI) will further military readiness and
environmental conservation. I appreciate your attention to this vital
and timely topic, which is of great importance to our security and our
environment today and into the future.
READINESS
Our Navy provides combat-ready forces as powerful representatives
of American sovereignty. In the weeks following September 11, naval
forces were at the leading edge of our nation's efforts against
terrorism. Navy and Marine Corps carrier strike aircraft, in concert
with US Air Force bombers and tankers, flew hundreds of miles beyond
the sea, destroying the enemy's ability to fight. Sustained from the
sea, U.S. Marines, Navy SEALS, Seabees, and Special Operations Forces
worked with local allies to free Afghanistan from the Taliban Regime
and Al Qaeda terrorist network. Today, naval forces are deployed to
multiple theaters of operations in the Global War On Terrorism and our
mission is far from over.
One thing we have learned--readiness is paramount. Before this
nation sends the precious resource of our youth into harm's way, we owe
it to them to provide every measure of safety possible--and that starts
with realistic and comprehensive training. The extraordinary success
achieved thus far in Operation ENDURING FREEDOM is a direct result of
our commitment to train as we fight. We rely on the full use of our
ranges and facilities to provide the combat-like experience that gives
our forces a competitive advantage in war. But as we think about future
operations, I am concerned about growing impediments to our ability to
execute our highly successful training procedures.
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 U.S. combat effectiveness. For example, the ratio of enemy
aircraft shot down by U.S. aircraft in Vietnam improved from less than
1-to-1 to 13-to-1 after the Navy established its Fighter Weapons
School, popularly known as TOPGUN. More recent data shows aircrews who
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. Unfortunately, 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
flexibility, 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 areas, urban and suburban
sprawl, and constrained by State and Federal environmental laws and
regulations. Additionally, successful stewardship programs have
increased the number of protected species on our ranges, which has
resulted in less training flexibility. Finally, cumbersome permitting
processes negatively impact our ability to train.
BALANCING MILITARY READINESS AND THE ENVIRONMENT
Military readiness and environmental conservation are both national
imperatives to which our Navy is committed. They are, however,
currently out of balance.
Central to this imbalance is the ``precautionary principle'' (which
is endorsed by some regulatory authorities), which holds that in the
absence of evidence to the contrary, one must assume military training
will adversely affect the environment. Although well intended,
application of the ``precautionary principle'' results in trying to
prove a negative, i.e. that training will cause no harm. Proving a
negative is often difficult--if not impossible--and has led to the
cancellation, curtailment, or adjustment of training to avoid even the
possibility of disturbing endangered species and marine mammals. The
loss of training that ensues detracts from combat readiness.
NAVY'S ENVIRONMENTAL STEWARDSHIP
A desire to better balance readiness and environmental stewardship
should not be taken as a lessening of our Navy's commitment to
environmental protection. Our environmental budget request for FY-2003
is more than $700 million. This funding supports environmental
compliance and conservation, pollution prevention, environmental
research, the development of new technologies, and environmental
cleanup at Active and Reserve bases. Largely as a result of such
stewardship, military lands present very favorable habitats for plants
and wildlife, including many protected species.
CHALLENGES POSED BY EXISTING ENVIRONMENTAL LAWS
The Department of Defense and the Navy are leaders in environmental
stewardship. Nevertheless, there are several environmental initiatives
that could, with modification, fulfill their intent of environmental
protection while simultaneously allowing military forces to sustain
readiness. The RRPI addresses these issues and will help establish one
fundamental to our future combat readiness, that is restoring the
balance between readiness and conservation. Specifically, I ask for
your help with addressing ambiguities in the Migratory Bird Treaty Act,
Endangered Species Act, and Marine Mammal Protection Act.
Migratory Bird Treaty Act
Litigation under the Migratory Bird Treaty Act (MBTA) has resulted
in restrictions on training. The MBTA was enacted more than 80 years
ago to regulate commercial duck hunting and to conserve migratory
birds. Since a U.S. Circuit Court of Appeals ruling in 2000, the MBTA
has been viewed by some as a vehicle for regulating a wide range of
activities that affect nearly every species of bird. Relying on this
decision, third parties have filed suit challenging the unintentional
taking (killing or harming) of migratory birds incidental to military
training.
Adoption of RRPI would allow for the continuation of training
activities vital to national security while requiring that the military
services take practical steps to prevent injuries to birds in the
course of training. This would return the MBTA to a responsible
posture, as it was interpreted and applied for more than 80 years.
Endangered Species Act
Designating military training ranges as critical habitats under the
Endangered Species Act (ESA) can undermine the purpose for which they
were set aside. Some Federal courts have held that critical habitats
are intended for species recovery. Under the ESA, controlling or action
agencies are required to ensure that their actions do not destroy or
adversely modify designated habitats. Hence designation as critical
habitats could limit land uses that would diminish the value of that
land for species recovery--including military training.
DoD is already obligated under the Sikes Act to develop Integrated
Natural Resource Management Plans (INRMP) 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 U.S.
Fish and Wildlife Service (USFWS) and State agencies, and these
agencies recommend ways for DoD installations to better provide for
species conservation and recovery.
The Navy has worked hard to ensure its training successfully
coexists with the protection of endangered species. For example, Naval
Amphibious Base (NAB) Coronado has been home to Navy frogmen since
their inception in World War II. All of their basic skills from diving
to hydrographic reconnaissance have been taught on its beaches and in
the bays surrounding the base. To protect the environment, the Navy has
spent about $675,000 per year since 1996 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 by 600 percent and the number of Western
Snowy Plover nests by almost 300 percent.
Ironically, this successful stewardship effort resulted in a loss
of training area. Due to encroachment, including increased population
of the Western Snowy Plover and Least Tern, NAB Coronado lost the use
of an estimated 80 percent of its training beaches. In response, the
Navy had to substantially alter training activities or conduct them
elsewhere, disrupting training cycles, increasing costs, and adding to
the time Sailors spend away from their families.
Adopting the RRPI would mitigate such situations in the future, by
balancing training needs with the protection of threatened or
endangered species. Changing the law to clearly establish that an
approved INRMP plan provides sufficient species protection--rather than
designating more and more land as critical habitats--would retain
flexibility for the services in places where training needs and
endangered species protection must coexist.
Marine Mammal Protection Act
Access for military training is an issue at sea as well as ashore.
The Marine Mammal Protection Act has curtailed this access. Its
definition of ``harassment'' has been a source of confusion since it
was included in 1994 amendments to the statute. The statute defines
``harassment'' in terms of ``annoyance'' or the ``potential to
disturb''--standards that are difficult to interpret. The definition of
harassment and its application are pivotal because authorization must
be obtained in advance of any activity that would constitute
harassment.
Vagaries in the definition of harassment make it very difficult for
Navy exercise planners and scientists to determine if a permit
(technically known as an authorization) is required before commencing
mission--essential training or testing. It also makes it difficult to
judge how much mitigation is needed--and therefore how much training
realism must be lost--to reduce the impact of any harassment or other
type of taking to a negligible level. The Navy is not alone in its
opinion that lack of clarity in the MMPA has led to restrictive and
inconsistent interpretations of the definition of harassment. In
testimony before Congress, the Assistant Administrator for the National
Marine Fisheries Service (NMFS) stated that, ``NMFS has experienced
difficulties with respect to implementation and interpretation of the
current definition of harassment.''
Assuming a permit is required for training or testing, the
application process requires at least 4 months--and sometimes years--to
complete, and then the application is effective for only 1 year.
Because Navy operations are tied to world events, exercise planning and
testing is often done on short notice. This sometimes precludes the
identification of training and testing platforms and locations far
enough in advance to factor in the lengthy permit application process
required by the MMPA.
Examples of this dilemma can be seen in Office of Naval Research
(ONR) tests designed to measure sound in the water as it relates to
improving the Navy's capability to detect enemy submarines. Over the
past several years, ONR has had to curtail or stop elements of various
tests due to challenges linked to the MMPA's definition of harassment
and its lengthy permitting requirements. In May 2000, for example,
disagreement with the regulatory community ensued over ONR's analysis
of the impact of its testing on marine mammals. This led ONR in a
subsequent test to spend $800,000 for mitigation measures, to avoid
even the possibility of disturbing marine mammals.
More recently, key training for the USS CARL VINSON Battle Group
was canceled because a permit could not be obtained in an expeditious
manner to ``potentially disturb'' seals when target drones flew over
them. This resulted in the deployment of three ships of the Battle
Group to Operation ENDURING FREEDOM without the benefit of anti-ship
cruise missile defensive training.
Amending the definition of ``harassment,'' as proposed by the
Administration, would eliminate application of the MMPA to benign naval
activities that cause only minor changes in marine mammal behavior,
eliminate the need for mitigation that undermines critical training
involving only benign effects, and increase training flexibility by
allowing greater use of acoustical sources. The Navy would still be
required under the proposed definition of ``harassment'' to apply for
permits and adopt mitigation for activities having a significant
biological effect on marine mammals.
SUMMARY
We face an enemy today who is determined to destroy our way of
life. The President has told us to ``be ready'' to face this threat. To
fulfill this directive, we must conduct comprehensive combat training--
arming our Sailors with experience. This requires full use of our
ranges and operating areas. In return, the Navy has proven itself an
able steward of our natural resources, and we will continue to promote
the health of lands entrusted to our care.
I thank the committee for your continued strong support of our Navy
and I ask for your full consideration of passing the RRPI legislation.
It will help the services sustain military readiness in this time of
war and into the future, when we will face a growing array of deadly
threats. 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 that goal.
______
Responses of Adm. William Fallon to Additional Questions from
Senator Smith
Question 1. Admiral, some have taken the position that the MMPA is
not within our jurisdiction. I pointed out during the hearing that the
MIMPA is within our jurisdiction to the extent that the issue involves
endangered marine mammals, which this legislation clearly does involve.
Your written testimony goes into some detail on the Navy's position on
this issue, but I would like to know if you have any additional
comments to make for the record on the subject of the Department's
proposed clarification of the M1VIPA.
Response. The definition of ``harassment'' in the MMPA is important
to the Navy because it controls which Naval activities require a letter
of authorization or an incidental harassment authorization (essentially
two forms of permit) from National Marine Fisheries Service (NMFS) or
Fish and Wildlife Service (FWS) (for a limited number of species) under
the MMPA. The application process is lengthy and, in the end, usually
results in excessive restrictions on training.
The MMPA's definition of ``harassment'' has been a source of
confusion since the definition was included in 1994 amendments to the
statute. The statute defines ``harassment'' in terms of ``annoyance''
or the ``potential to disturb,'' vague standards that have been applied
inconsistently and are difficult to interpret. NMFS attempted to solve
this problem through a regulatory interpretation of ``harassment,'' but
that interpretation is itself being challenged in court as contrary to
the statute -- emphasizing the need for Congress to definitively settle
the question through legislation. Without such further clarification of
the term, however, NIMFS has interpreted a broad array of reactions as
evidencing harassment, noting, for example, that ``[a]ny sound that is
detectable is (at least in theory) capable of eliciting a disturbance
reaction by a marine mammal.'' Also, ``[an incidental harassment take
is presumed to occur when marine mammals . . . react to the generated
sounds or to visual cues.'' An interpretation this broad could lead to
the permitting of all naval vessels simply leaving harbor.
More recently, as noted above, NMFS has attempted to clarify the
definition of ``harassment'' by regulation, but in addition to judicial
challenge by environmental groups the Marine Mammal Commission has
challenged it on these efforts, noting in the case of one Navy-proposed
action that ``[a]ny behavioral reaction would technically constitute
harassment.''
Recognizing that the definition of harassment was problematic, in
2000 the Navy, NMFS, FWS, and the Marine Mammal Commission developed a
definition of ``harassment'' which all four agencies could accept. The
Office of Management and Budget during the Clinton administration
approved this language and the Department of Commerce has submitted it
as part of its effort to reauthorize the MMPA in 2001. The
reauthorization of the MMPA has been delayed by a variety of other
complex issues, however, and the Administration believes that
clarifying the application of this provision to military readiness
activities is sufficiently urgent to require an independent legislative
initiative.
DoD's proposal reflects the agreement reached during the Clinton
administration and adopted by the Bush administration, except that
DOD's new definition would apply only to military readiness activities.
The definition clarifies that ``harassment'' applies only to injury or
significant potential of injury, disturbance or likely disturbance of
natural, behavior patterns to the point of abandonment or significant
alteration, and to disturbance directed at a specific animal. DoD
believes that this standard would ensure protection of marine mammals,
but also provide the military with sufficient flexibility to conduct
training and other operations essential to national security. DoD will
remain subject to the MMPA for injury and behavioral changes that
affect important biological functions.
Amending the definition of ``harassment,'' as proposed by DoD,
would:
<bullet> Focus the attention of regulators on activities that are
of genuine significance to the welfare of marine mammals, rather than
dissipating regulatory attention among a host of activities without
biological significance;
<bullet> eliminate application of the MMPA to benign naval
activities that cause only minor changes in marine mammal behavior--
narrowing the number of takes by harassment;
<bullet> clarify the distinction between activities that may
produce biologically significant effects and those that have only
benign effects, reducing the need for mitigation that could undermine
critical training.
<bullet> increase training flexibility by allowing greater use of
acoustical sources, without immunizing the Navy from regulation of
activities that lead to whale strandings; and
<bullet> reduce impediments to deployment of mission-essential
systems.
DOD's proposed amendment to the definition of harassment is
consistent with the position advanced by the National Research Council
(NRC) in a report to Congress in March 2000. According to the NRC, if
the current definition of Level B harassment (detectable changes in
behavior) were applied to commercial shipping and recreational boating
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. NRC advocates instead a definition of
harassment that focuses on significant adverse biological effects in
marine mammal stocks.
DoD believes its proposed amendment to the MMPA will ensure
protection of marine mammals while allowing sufficient flexibility to
conduct training and other operations essential to national security.
Left unchanged, the current definition of harassment will continue to
be the subject of litigation brought by special interest groups. Only
this past month, for example, a NMFS-issued harassment permit
authorizing Navy to deploy an important asset was questioned by a
Federal court over the definition of harassment.
Site-Specific Situations
Application of the current definition of ``harassment'' has
impacted Navy training and other operations essential to military
readiness. Navy operations are expeditionary in nature, which means
world events often require planning exercises on short notice. This
challenge is especially acute for the Atlantic Fleet, which over the
past 2 years has often had to find alternate training sites for
Vieques. To date, the operational Navy has been able to avoid having to
apply for a take permit only by altering its training and adopting
mitigation measures that eliminate even the possibility that a training
event will disturb a marine mammal.
One example of such adjustments can be seen in the Office of Naval
Research (ONR)-sponsored Littoral Warfare Advanced Development (LWAD)
program for testing various, and often unrelated, methods for measuring
sound in the water as it relates to improving the U.S. Navy's anti-
submarine warfare capabilities. Over the past several years, ONR has
had to curtail or stop elements of the program due to IVIIVIPA
permitting requirements. In May 2000, an LWAD test was severely
curtailed because of the lack of clarity in the MMPA. NIIVIFS rejected
animal resource data that ONR had obtained from NMFS's own sources,
disagreed over ONIR's analysis of impacts on marine mammals, and
refused to provide an alternative impacts analysis methodology.
Experiences like this led ONR, in a subsequent test, to spend $800,000
for mitigation to avoid even the possibility of disturbing marine
mammals.
Question 2. If past military readiness reports have not shown
declines in unit readiness due to training deficiencies, as some read
the recent GAO report to say, then why is there any urgency to act now?
Doesn't the GAO Report's conclusion mean that DoD's training
capabilities are presently unaffected by encroachment?
Response. The fact that DOD has yet to precisely quantify the
impacts of environmental encroachment on its training capabilities and
readiness does not mean that readiness has not been affected. DOD is in
fact attempting to improve quantification of encroachment impacts, and
this effort is in the early stage of development. The military, because
of its commitment to the environment, has for years attempted to work
around encroachment impediments. Over time, these impediments to
training have grown to the point where DOD has recognized that
readiness is now threatened. Accordingly, DOD has attempted to act
proactively to avoid a readiness disaster by bringing this matter to
the attention of Congress before the problem becomes critical.
______
Responses of Adm. William Fallon to Additional Questions from
Senator Warner
Question 1. On provision of the Administration's Readiness and
Range Preservation Initiative (RRPI) would authorize the Department of
Defense to incidentally ``take'' migratory birds under the Migratory
Bird Treaty Act without a permit. Is it fair to say that absent
legislative relief, the military departments will remain vulnerable
under this act to lawsuits and permanent injunctions for training
activities, as has occurred at the Navy's Pacific bombing range,
Farallon de Medinilla (FDM)?
Response. Yes. All military departments would be vulnerable to
lawsuits and injunctions of training activities. Migratory birds are
ubiquitous on all DOD lands. Anywhere a range exists there is always
the potential for the incidental ``take'' of a migratory bird. This
would potentially subject DOD to numerous litigation risks that could
result in injunctions as occurred at FDM. Potential impacts to DOD
include: reduced training for mission readiness and resultant potential
readiness declines, increased costs for litigation expenses, increased
staff time devoted to litigation, etc. The Navy does not intentionally
``take'' migratory birds. We are good stewards of the land, and sea
surrounding our installations. In carrying out our Title 10
responsibilities for National Defense we also ensure that we reduce as
much as possible any incidental takes of migratory birds. Moreover,
other Federal agencies would encounter the same risk of injunction to
their activities as well.
Question 2. What would be the readiness impact if training
operations at FDM were permanently shut down?
Response. Because of the events of September 11, 2001, we have an
increased number of units required for combat operations on very short
notice. With an increasing surge of short notice deployments, Farallon
de Medinilla (FDM) becomes a necessity for training and readiness in
the war against terrorism. We rely on FDM for qualification and range
practice for these short notice units. The value of the range is
significantly enhanced because it is the only available training range
in the Western Pacific under U.S. control. Without FDM, and with all
other ranges in the Pacific theater under foreign control, we would be
at the mercy of host governments for our readiness and training. Use of
foreign ranges by transiting units is inefficient and can inhibit
mission readiness because of the time required for advance notice to
and prior coordination with host governments. Foreign ranges may not be
available during the brief and often unforeseeable windows of time when
Seventh Fleet units may need to use them.
Additionally, FDM is the only target range in the Pacific for the
delivery of live Precision Guided Weapons and high-speed anti-radiation
missiles (HARM) for expenditure training. The War on Terrorism has been
heavily dependent on ``smart'' munitions (i.e., laser and infra-red
guided missiles and bombs), and their use requires training. Closing
FDM will therefore mean that units transiting the U.S. Seventh Fleet
area of responsibility may not have adequate range training time before
they are required to engage in combat operations in support of
Operation Enduring Freedom.
Under the Administration's Migratory Bird Treaty Act proposal, the
Department of Defense would be required to reduce the number of takings
to the maximum extent practicable.
Question 3. Would this requirement be inconsistent with the current
practices of the military departments?
Response. The Navy is a good steward of our nation's lands and
waters. On Farillon de Medinilla (FDM) for instance, the Navy has
practices in place that mitigate the ``taking'' of migratory birds.
These practices include: limiting the quantity of ordnance targeted on
FDM, limiting the primary target area to the central and southern
portion of FDM, environmental monitoring, and funding mitigation
measures on other Mariana islands.
During the preparation of the Final Environmental Impact Statement
(FEIS) for Military Training in the Marianas, the types and quantity of
ordnance used on FDM was specified, monitored, and tracked. By limiting
the type and quantity of ordnance delivered to FDM, disturbance to
seabird populations is considerably reduced.
Based on recommendations from U.S. Fish and Wildlife Service, the
target areas on FDM have been limited to the central and southern
portions of the island. By designating the target areas, the most
sensitive seabird population areas on the northern tip and eastern
plateau edge are excluded from weapons impact. Maps provided in the
FEIS and the Navy's Marianas Training Handbook specify the target
areas. Specific targets have been placed within the designated area to
further focus the delivery of ordnance away from the seabird
population. The recommendation is implemented through notices to all
users of the bombing range and through local regulations concerning use
of the range. Use of ordnance, live or inert, is not authorized on the
northern 400M of FDM, on the narrow land bridge near the center part of
the island, on the eastern cliff face, or in the surrounding waters.
The use of live cluster weapons, scatterable munitions, fuel air
explosions, incendiaries, or bombs greater than 2,000 pounds is not
authorized. A low and slow clearing pass over the range is required
prior to releasing ordnance. Ships without aircraft support must
circumnavigate the island prior to firing evolution. Users must submit
an after-action report.
A Navy biologist, in cooperation with Commonwealth of Northern
Marianas (CNMI) Fish and Game Division, conducts monthly aerial
(helicopter) bird surveys on FDM to understand the population dynamics
of the seabirds and to assess long-term effect of military use of FDM.
Based on U.S. Fish and Wildlife Service (USFWS) recommendation, the
Navy funds mitigation projects on other Mariana Islands. These projects
have included improvement of habitat of the Micronesian Megapode on the
other northern Marianas Islands. This mitigation project also benefits
migratory birds by improving the general habitat for all the birds. The
Navy funded a $100,000 per year project to reduce feral goat
populations on Sarigan Island. The feral goats are the most significant
threat to habitat for the Megapode and other species. Based on the
success of the Sarigan project, Navy is also removing goats from
Anatahan Island.
Question 4. The Endangered Species Act provides for a national
security exemption. Upon signing the Endangered Species Act into law,
President Carter stated that the Department of Defense should rely on
this exemption `` . . . only in grave circumstances posing a clear and
immediate threat to national security.'' Has this exemption ever been
used? If so, how and if not why? What are the difficulties associated
with the use of such an exemption?
Response. No, the exemption has not been used. There is an
exemption under the Endangered Species Act (ESA) if the Secretary of
Defense (SECDEF) finds it is necessary for reasons of national
security. That exemption, however, is better used to address
emergencies or unusual situations that are of relatively short
duration. The need to train for combat, to plan and execute military
readiness activities, is a 7-day a week, 52 weeks a year, requirement.
The Secretary of Defense's ability to waive environmental requirements
in case of war or national emergency cannot ensure that our young men
and women are ready for the first day of combat, which is what
readiness is all about.
Procedurally, there are numerous difficulties to implementing the
national security exemption under Section 7 of the Endangered Species
Act. First, this is a provision that requires the Endangered Species
Committee to grant an exemption for agency action if SECDEF finds
``that such an exemption is necessary for reasons of national
security.'' The Department of Interior (DOI) believes that this
exemption requires a 9-month administrative process. This exemption
cannot be used until after consultations with DOI or National Marine
Fisheries Service have been completed, and only when the regulatory
agency has asserted that the military's training activity will
jeopardize the continued existence of threatened or endangered species.
According to DOI, this exemption is not available where the regulatory
agency has endorsed the military's training activity albeit subject to
limitations.
Critical habitat designations impose rigid limitations on military
use of bases, denying commanders the flexibility to manage these lands
for the benefit of both readiness and endangered species. The
Administration's proposal would preclude the designation of critical
habitat under the Endangered Species Act on Department of Defense
installations where an Integrated Natural Resource Management Plan
(INRMP) has been completed, consistent with the Sikes Act.
Question 5. How would this management approach benefit both
readiness and endangered species?
Response. Integrated Natural Resource Management Plans (INRMP)
provide a process that will ensure the Navy meets its stewardship and
regulatory responsibilities not only for endangered species but also
for other areas of natural resources. The INRMP also ensures that the
Navy can meet its military readiness and national security
responsibilities under Title 10 by ensuring no reduction of military
mission capability. This process provides for a well thought out
balancing process that ensures endangered species are protected and
that projects are developed to further natural resources stewardship in
general and endangered species protection in specific. The Navy will
continue to consult under Section 7 of the Endangered Species Act, and
in no way does the INRMP process lessen protection afforded endangered
and threatened species. The Navy has consistently shown through our
stewardship programs that we not only protect natural resources but
also contribute significantly to the increase in population numbers of
endangered and threatened species on our lands. For instance, at Naval
Amphibious Base Coronado, Navy stewardship has resulted in incredible
increases in the populations of both the California Least Tern (600
percent) and the Western Snowy Plover (300 percent), and on San
Clemente Island, the Navy's captive breeding program has seen
endangered Loggerhead Shrike populations increase from 13 to 187 birds.
The systematic INRMP process uses staff time and resources of both the
military and U.S. Fish and Wildlife Service more efficiently, avoiding
the administrative burden that the consultative procedure would require
under critical habitat procedures for endangered species. In fact, DOD
encourages other Federal agencies to explore processes similar to
INRMPs; the benefits of this in the long run will reduce the incredible
nationwide burden of administrative paperwork for critical habitat
consultations, which would benefit the nation's overall endangered
species recovery efforts. Using a process approach, the Navy will
provide long-term cost effective programs that meet stewardship and
readiness missions. This will bring balance to both resulting in long-
term sustainability of natural resources and critical mission readiness
for our men and women in uniform.
Some critics have suggested that substituting INRMPS for critical
habitat designation would be contrary to the purpose and intent of the
Endangered Specific Act. It is my belief that there is a need for a
balanced approach, which allows for realistic training, and without
such a balance we run the risk of endangering our men and women in
uniform.
Question 6. If this legislative proposal is not successful, what
testing and training ranges would be impacted by future critical
habitat designations and what would be the overall military readiness
impact?
Response. Every single DOD testing and training range would
potentially be impacted by increasing critical habitat designations.
The U.S. Fish and Wildlife Service (USFWS) is under court order to
accelerate designation of critical habitat. For instance, on July 2,
2002, U.S. District Court for Southern California ruled that USFWS must
reconsider designating critical habitat for eight plant species. Over
time additional species potentially will be listed and increasing areas
will be designated as critical habitat. Much of this is driven by
current and potential future litigation over what is listed and
critical habitat designations that the USFWS faces (such as the
California Native Plant Society and the Center for Biological Diversity
lawsuit on the eight plants in Southern California) Litigation is
driving listing and critical habitat designations for the USFWS, for
instance, in Hawaii. Navy ranges potentially impacted include (all
currently have endangered and threatened species present): Naval
Weapons Station Seal Beach, Detachment Fallbrook, Pacific Missile
Firing Range, San Clemente Island, Marianas (FDM, Tinian) and Guam,
Naval Air Station Fallon, NAS Lemoore, China Lake, Point Mugu Range
complex and Vieques.
Listed below are several instances of where the Navy has responded
to critical habitat designations:
Naval Weapons Station Seal Beach, CA, Detachment Fallbrook.
Fallbrook's mission is to provide quality and responsive logistics,
technical, and weapons support to the U.S. Pacific Fleet, U.S. Marine
Corps, and other military units. It serves as a vital component for our
nation's defense by storing and providing munitions to Navy and Marine
Corps forces during the critical initial phases of a conflict.
Falibrook consists of 8,850 acres located in the southern foothills of
the Santa Ana Mountains in northern San Diego County.
a. Critical habitat was designated for the coastal California
gnatcatcher found at the Naval Weapons Station Seal Beach, Detachment
Fallbrook. Navy comments were provided to the proposal to designate
critical habitat at Fallbrook, which asserted that designation was
redundant and unwarranted. Despite the Navy's proactive resource
management and coordination of an INRMP with USFWS and California,
final critical habitat designation in October 2000 included all of
Fallbrook, with minor exception for certain already-developed areas.
The critical habitat included not only unoccupied habitat areas, but
also areas that are unsuitable as a habitat for the California
gnatcatcher. A primary concern is military and public safety if
critical habitat requirements adversely affect the efficacy of clear
zones and fire safety breaks on the installation. Designating the
entire installation produces restrictions that may degrade Fallbrook's
overall ability to perform its military mission and to adequately
comply with strict explosive safety standards.
b. Fallbrook also had to contend with the Final Designation of
Critical Habitat for the Arroyo Southwestern Toad in February 2001.
Navy comments were provided to the proposal to designate approximately
15 percent of Fallbrook as critical habitat for the toad, in particular
emphasizing the problematic designation of multiple and overlapping
critical habitats at a single facility and the resulting conflicting
habitat management requirements. Proposed projects and ongoing
maintenance requirements exist in areas of Fallbrook that do not
contain constituent elements of critical habitat for the toad, but were
included in critical habitat designation. Critical habitat designation
will pose potential restrictions on fire prevention and containment
measures such as fuel breaks and fire access roads will pose
significant threats to the storage of munitions.
Both critical habitat designations lead to confusion for natural
resources management, particularly in regard to the joint management of
other listed species (e.g., Stephens' kangaroo rat), and conflicts
between the two species critical habitat management requirements. The
Integrated Natural Resource Management Plan (INRMP) process provides a
multi-species approach to natural resources management, and is,
therefore, the better mechanism for minimizing and possibly avoiding
these management challenges.
Pacific Missile Range Facility, Hawaii. The Pacific Missile Range
Facility (PMRF) on the island of Kauai in Hawaii is the recognized
leader in combining training and testing. PMRF supports a wide variety
of training exercises and developmental tests involving space, air,
surface, and sub-surface units. PMRF has the ability to provide
simultaneous real-time tracking information on participants, targets,
and weapons on its 42,000 square miles of sea and airspace. PMRF
provides a fully instrumented ocean training range, where aircraft,
surface ships and submarines may train one against the other, or in
collaboration, to deal with a variety of potential incoming adverse
threats.
In May 2002, USFWS announced the availability of the draft economic
analysis for the proposed designations of critical habitat for plant
species from the islands of Kauai and Nihau, Hawaii, and reopening of
the comment period for the proposal to determine the prudence of
designating critical habitat for these plants. Navy comments were
submitted on the proposed designation.
Navy stewardship efforts: The Navy coordinated with USFWS for
preparation of a biological assessment for the 1998 PMRF Enhanced
Capability Environmental Impact Statement (EIS)
Impact: Designation of critical habitat over lands used by PMRF
serves as an unnecessary restraint and limitation on the installation's
flexibility, adversely affecting its ability to perform its national
defense mission and in planning for future mission needs. Particular
impacts associated with PMRF facilities at Koke'e and Makaha Ridge were
emphasized in comments submitted by CINCPACFLT to USFWS.
Marianas and Guam Range Complex. USFWS Action: In May 2002, in
response to a lawsuit brought against USFWS, an agreement was reached
between environmental groups and USFWS to designate and protect
critical habitat areas for six endangered species on Guam. The
agreement calls for designation of critical habitat by June 1, 2003.
Species are the Marianas fruit bat, little Marianas fruit bat, Marianas
crow, Guam Micronesian kingfisher, Guam broadbill, and Guam bridled
white-eye.
Navy Stewardship History: The Guam Overlay National Wildlife Refuge
was originally created on Navy land in lieu of a critical habitat
designation for the protection of the endangered Marianas moorhen, as
well as seven other endangered species. This refuge was established via
a cooperative agreement between the Navy and the USFWS. Establishment
of the refuge on Navy lands represents Navy's strong commitment for a
coordinated species protection program.
Impact: All of the Navy's training areas in the Marianas have
endangered species located on them, but none have yet been designated
critical habitat. The agreement could lead to critical habitat.
The INRMPs would only be used as a substitute for designation of
critical habitat in those instances in which the plans addressed
endangered or threatened species and their habitats.
Question 7. What would be the role of the Fish and Wildlife Service
regarding the preparation and implementation of these plans?
Response. Fish and Wildlife Service (USFWS) is a partner in the
preparation and implementation of Integrated Natural Resource
Management Plans (INRMP) . Section 2904 of the Sikes Act Improvement
Act states that the INRMP shall reflect ``mutual agreement of the U.S.
Fish and Wildlife Service and the States concerning conservation,
protection, and management of fish and wildlife resources.'' INRMPs are
prepared ``in cooperation with'' the USFWS and appropriate State fish
and wildlife agencies. The entire INRMP is shared with these agencies
for review. The Department of Defense (DOD) also takes advantage of the
expertise of the USFWS and State fish and wildlife agencies to provide
expertise in the task of preparing the INRMPs. DOD works closely with
USFWS in working groups all the way from the local level to Washington
D.C. USFWS regional offices endorse the INRMPs and field staff from the
USFWS work closely with military biologists for recovery efforts on
military installations. DOD will consult with USFWS on INRMP projects
requiring Section 7 consultations under the Endangered Species Act.
Readiness and Range Preservation Initiative. During the July 9,
2002, hearing before the Environment and Public Works Committee,
reference was made to the General Accounting Office (GAO) report on
Military Training: DOD Lacks a Comprehensive Plan to Manage
Encroachment on Training Ranges, June 2002 (GAO-02-614) . That report
stated: ``Despite the loss of some capabilities, service readiness data
do not indicate the extent to which encroachment has significantly
affected reported training readiness.'' ``At the same time, the
services face difficulties in fully assessing the impact of training
ranges on readiness because they have not fully defined their training
range requirements and lack information on the training resources
available to support those requirements.''
Question 8. How would you address this GAO statement? What is the
basis for concluding that environmental encroachment is a problem that
warrants legislative relief, particularly in relation to the Migratory
Bird Treaty Act and the Endangered Species Act?
Response. First, the fact that DOD has yet to quantify the impacts
of environmental encroachment on readiness does not mean that readiness
has not been affected. The first sentence in the Conclusion of the GAO
report (Page 30) states: ``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.'' Also,
Director Holman (GAO) stated in his oral testimony, ``[E]ach
installation we visited indicated that they had lost capabilities in
terms of times ranges were available for the types of training that
could be conducted . . . Again, the potential problem with workarounds
is that they lack--can lack realism; can lead to the use of practice
and tactics that are contrary to what would be employed in combat.''
DOD is in fact attempting to quantify encroachment impacts. This
effort, however, is in its infancy. The military, because of its
commitment to the environment, has for years attempted to work around
encroachment impediments. Over time, these impediments to training have
grown to the point where DOD has recognized that readiness is
threatened. Accordingly, DOD has attempted to act proactively to avoid
a readiness disaster by bringing this matter to the attention of
Congress before the problem becomes critical.
Military installations have increasingly evolved from rural and
isolated locations to areas surrounded by urban sprawl. This has
resulted in DoD lands becoming ``islands of biodiversity in a sea of
development.'' Wildlife such as migratory birds and endangered species
increasingly find military ranges and installations to be safe harbors
in the midst of the loss of other habitats outside military
installation boundaries. The military has been forced to shoulder
increased stewardship responsibilities as other habitat disappears. The
USFWS in the face of increasing litigation (GAO 02-581 of June 2002)
has become increasingly dependent on military lands for meeting
endangered species recovery goals for certain species of wildlife and
plants. The USFWS mission is focused only on species preservations. The
military on the other hand, has the more complicated duty of balancing
Title 10 responsibilities (readiness) with environmental stewardship.
As increasing numbers of species have been listed from the first
charismatic mega fauna to the tiniest species such as fairy shrimp, the
military confronts increased numbers of species currently listed and
proposed for listing as well as significant increases in critical
habitat designations that are often driven by court interpretations of
our environmental laws. Such legal interpretations create challenges
for military commanders required to ensure we meet our nation's
national security goals as required by Title 10, as well as meeting
their stewardship responsibilities. The few remaining proposals in the
RRPI will aid our commanders in achieving balance which will ensure
that America's fighting forces are fully prepared to meet current and
future challenges.
__________
Statement of Gen. John M. Keane, Vice Chief of Staff, U.S. Army
Mr. Chairman and members of the committee. Thank you for this
opportunity to present the Army's perspective on the Readiness and
Range Preservation Initiative (RRPI).
The exceptional performance of our units in Afghanistan clearly
indicates that The Army is fully prepared to meet our full-spectrum
obligation to fight and win the Nation's wars, whenever and wherever
the Nation calls. Our success to date, and our ultimate victory in this
war and future wars, is dependant upon highly trained Soldiers and
units who are proficient in the employment of their equipment. The only
way to achieve the requisite level of individual and collective
competency is through repetitive, challenging, and realistic live-fire
and maneuver training--training that melds soldiers and equipment into
a combat ready unit.
Maneuver land and live-fire ranges are an indispensable element to
this process. The Army's ranges, as well as those of our sister
Services, provide opportunities to develop and improve our Soldiers'
proficiency, competence, and confidence in the use of sophisticated
weapons systems. We must retain those resources that allow our forces
to maintain the level of readiness that the American people have come
to expect, and deserve--and without which we will not be adequately
prepared to defend America. For this reason, the Army has committed
significant resources to the preservation of its lands and, in the
process, amassed a record of good stewardship of the environment.
Despite The Army's commitment to preservation, externally driven
factors, such as urban sprawl, management of threatened and endangered
species, and the expanding application of environmental laws to live-
fire activities have the ability to constrain and introduce an
unacceptable degree of artificiality to military training. In an effort
to curb this trend, the Army has worked within the Administration to
develop a set of proposals that clarify the application of several
environmental laws to military testing and training.
The Administration would like to work together with Congress to
improve the processes by which we manage environmental issues on Army
and other DoD lands to ensure both realistic training for our Soldiers
and protection of the land and resources. We will continue to work with
the other Federal agencies to ensure that as these proposals are
adopted they are implemented in a manner that preserves our ability to
maintain trained and ready forces and protect the environment in a
manner consistent with congressional intent.
The Army's primary concerns are training restrictions that stem
from urban sprawl, the resultant increase in Army responsibility to
manage and protect threatened and endangered species, and the expanded
application of environmental regulations to the use of military
munitions.
URBAN SPRAWL
When many of our installations were established, they were
generally located in rural areas isolated from civilian populations.
However, urban growth and development of land around our training
facilities has changed that. Army installations, once far from public
view, are now located in suburban and often in the midst of large urban
areas.
Unchecked residential and community growth cause tension between
military operations and neighboring communities over noise, dust, and
other effects of Army training. Noise, for example, is a sensitive
issue in communities surrounding Fort Drum, New York; Fort Sill,
Oklahoma; Fort Bragg, North Carolina; Fort Carson, Colorado; Fort
Campbell, Kentucky; Fort Hood, Texas; Fort Lewis, Washington; Fort
Riley, Kansas; Fort Stewart, Georgia; and Fort AP Hill, VA.
Additionally, The Army faces a particular challenge in managing noise
issues related to the Aviation School and its extended flight training
areas over and around Fort Rucker, Alabama. As populations around these
and other installations continue to grow, the Army expects other
encroachment-related concerns to intensify.
RRPI contains two provisions that address the ability of the
military departments to work in partnership with our neighbors to
establish protective buffer zones around military installations. One
provision allows military departments to enter into agreements with
third parties--such as private conservation organizations--to prevent
urban development that threatens testing and training. Another
provision allows the Department of Defense to convey surplus property
to a State or local government, or to nonprofit organizations that
exist for the primary purpose of protecting open spaces and natural
resources. The proposal allows the transfer of land only if it is used
for conservation purposes in perpetuity. Both of these proposals would
assist the Department of Defense in maintaining ``buffer zones''
between ranges and bases and urban areas, and preserve needed habitat
for potentially imperiled species, lessening the need for legal
restrictions. They serve both the interests of military readiness and
environmental protection.
THREATENED AND ENDANGERED SPECIES AND HABITAT
While the Army has been very successful in conserving and
protecting endangered species, two things are evident. First, as we
focus our training missions and Transformation on specific
installations, we find that endangered species restrictions already
limit the use of a significant portion of the landscape. Second, as the
habitat surrounding our installations is degraded by incompatible
development, pressure on the Army to conserve habitat on post
increases. These factors tend to restrict our access to needed training
land, restrict the types of training activities that we can conduct on
the land, and restrict the times and duration of training events
conducted.
Army lands host 170 federally listed species on 94 installations.
Critical habitat for listed species has been designated on 12
installations to include Fort Lewis, Washington and Fort Irwin,
California--two installations that are critical to maintaining the war-
fighting readiness of the Army. For example, at Fort Lewis 70 percent
of the training land is designated as critical habitat for the
threatened Northern Spotted Owl. Six of the twelve installations,
including Fort Lewis, are as yet unoccupied by the species for which
critical habitat is designated.
The Red-Cockaded Woodpecker in the Southeast United States affects
four major installations (Fort Bragg, North Carolina; Fort Stewart,
Georgia; Fort Benning, Georgia; and Fort Polk, Louisiana) and two major
service school training installations (Fort Jackson, South Carolina;
and Fort Gordon, Georgia). The training restrictions associated with
the 200-foot buffers around each cavity tree include: no bivouacking or
occupation for more than 2 hours; no use of camouflage; no weapons
firing other than 7.62mm and .50 cal blank (e.g., no artillery,
rockets, etc.); no use of generators, no use of riot agents; no use of
incendiary devices; no use of smoke grenades; and no digging of tank
ditches or fighting positions. During maneuver, vehicles cannot come
closer than 50 feet to cavity trees.
The Red-Cockaded Woodpecker has benefited from the quality habitat
provided by our installations' lands that have been actively managed
and insulated from urbanization, development, and commercial forestry
practices in the region. The Army has committed significant resources
to support conservation and recovery of the species. However, while The
Army spent more than $45 million over the past 12 years on conservation
management programs for Red Cockaded Woodpecker recovery, private
developers adjacent to our installation have not made similar
commitments.
At Fort Hood, Texas, the biological opinion issued under the
Endangered Species Act for both the Golden Cheeked Warbler and the
Black Capped Vireo, restricts training on over 66,000 acres (33
percent) of training land. These restrictions include no digging, no
tree or brush cutting, and no ``habitat destruction'' throughout the
year on the entire core and non-core area. From March through August,
vehicle and dismounted maneuver is restricted to established trails,
and halts in restricted areas are limited to 2 hours in designated
endangered species ``core areas'' (46,620 acres of the 66,000 acres are
designated ``core areas''). Artillery firing, smoke generation, and
riot control grenades are prohibited within 100 meters of the
boundaries of the designated ``core areas.'' Use of camouflage netting
and bivouac are prohibited across the entire ``core area'' during these
months.
Protection of threatened and endangered species restricts training
at many other Army installations. At Fort Huachuca, Arizona, for
example, management of endangered bats and two other species restricts
the types, timing, and locations of military activities. Listing of the
Arroyo Southwestern Toad and designation of critical habitat may have
serious effects on both land and air-based training. The southern
corridor at the National Training Center, Fort Irwin, California, is
designated critical habitat for the Desert Tortoise and 22,000 acres
cannot be used for maneuver. This designation reduces the amount of
training that can be conducted on the installation and limits maneuver
training to the central corridor. Wendell Ford, Kentucky; Camp
Grayling, Michigan; Camp Ripley, Minnesota; Camp Shelby, Mississippi;
Camp Perry, Ohio; Camp Leesburg, South Carolina; and Orchard/Gowen
Field, Indiana--all National Guard training facilities--experience
training restrictions based on endangered species management. The U.S.
Fish and Wildlife Service is currently proposing to designate critical
habitat for 146 plant species in Hawaii. These proposed designations
will affect seven different training areas and are expected to have
further adverse impacts in the form of additional training activity
restrictions, administrative burden, and restricted access. This list
is not exhaustive, but does illustrate that the Army feels the effects
of this issue at many locations across the country.
Designation of critical habitat on Army installations adds
management costs and reduces the availability of land on which to
train. New designations require installations to enter into
consultation with the Fish and Wildlife Service and limit or cease
training activities while consultation is conducted. Training
restrictions can even apply when critical habitat is designated on
military installations where species do not occur.
In addition to the RRPI's real property acquisition and conveyance
authorities, which allow for preservation of species habitat around
Army installations, the RRPI contains a provision that specifically
addresses the overlapping natural resource management requirements of
the Endangered Species Act and the Sikes Act. The proposal provides
that the existence of an approved Integrated Natural Resource
Management Plan (INRMP), required under the Sikes Act and coordinated
with the Fish and Wildlife Service, precludes the need to designate
critical habitat under the Endangered Species Act. This has been the
practice at a number of Army installations, but the Fish and Wildlife
Service is being challenged in court for the practice.
INRMPs take a more holistic approach to managing natural resources.
They strike a balance and integrate military training needs with
natural resources management practices to ensure that both imperatives
are met. Management under an INRMP, in lieu of critical habitat
designation, allows Army commanders increased flexibility to use the
land on the installation to meet changing mission needs.
EXTENSION OF ENVIRONMENTAL LAWS AND REGULATIONS TO UNEXPLODED ORDNANCE
AND MUNITIONS CONSTITUENTS
The development of our current environmental statutes and
regulations addressing waste management, pollution elimination, and
cleanup of contamination did not take into account, nor foresee,
application to military training lands and military weapon systems. The
use of environmental statutes, such as the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA), the Resource
Conservation & Recovery Act (RCRA), and the Safe Drinking Water Act to
require investigation and cleanup of munitions and their constituents
on operational military ranges will likely impact the Army's ability to
fulfill its national security mission by causing the shut down or
disruption of live-fire training. A number of these statutes contain
broad, discretionary enforcement thresholds that are based on the
assessment of the environmental regulatory authority as to whether a
given condition or activity presents a ``potential'' risk or
``imminent'' hazard to human health or natural resources. These
assessments have resulted in added restrictions on the Army. While some
of the environmental statutes provide for short-term national security
exemptions (often at the Presidential level), these statutes contain
few practical methods for consideration of the unique military
readiness impacts of enforcement on military ranges. Clarification of
the regulatory framework applicable to military training operations
would be an appropriate manner in which to address the issue.
The Army at Fort Richardson, Alaska, is currently facing a lawsuit
alleging violations of the Clean Water Act, RCRA, and CERCLA associated
with firing munitions at Eagle River Flats range. The RCRA allegation
is that munitions fired into or onto Eagle River Flats are RCRA
statutory solid wastes that present an imminent and substantial
endangerment to health or the environment. The CERCLA allegations are
that the act of firing munitions onto an operational range and the
continued presence of those munitions on the range constitute a release
of hazardous substances potentially requiring reporting,
characterization, and remediation.
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. Live-fire training during
the remediation would be impossible, and the only mortar and artillery
impact area at Fort Richardson would be lost to training. The 172d
Infantry Brigade would be unable to conduct a large portion of its
mission essential live-fire training operations.
If courts agree with the plaintiff, then live-fire training and
testing operations at every Army range (more than 400) could be subject
to CERCLA response requirements. Further lawsuits could compel the
Environmental Protection Agency and State regulators in all U.S.
regions to enforce the same standards on other military ranges. These
findings would not only dramatically impact the readiness of the 172d
Infantry Brigade in Alaska, but the entire Department of Defense.
The RRPI contains provisions affecting both RCRA and CERCLA
clarifying that live-fire training does not constitute disposal of
hazardous waste or releases of hazardous substances, as these terms are
used in RCRA and CERCLA. These proposals seek to codify the existing
practice by the Environmental Protection Agency and State environmental
regulatory agencies and remove ambiguity currently in the law. These
proposals confirm that the cleanup of military munitions is not
required so long as munitions remain on operational ranges where they
were fired. The policies governing cleanup of munitions located off an
operational range and munitions causing imminent danger on-range would
remain unchanged--as would policies governing clean-up of former ranges
and other defense sites. These provisions do not seek to avoid the
Army's responsibilities to clean-up formerly used defense sites or to
protect the environment from potentially harmful impacts. These
provisions seek to clarify and affirm existing policies and ensure that
military ranges, set aside to allow live training and contain potential
impacts, continue to be available to the soldiers that need to train
for combat.
BALANCING MILITARY MISSION AND ENVIRONMENTAL PROTECTION
The Army's effort to preserve and protect effective training and
testing has three components:
1. Seek needed changes to laws and regulations: The Army advocates
an environmental regulatory framework for military facilities that
recognizes their uniqueness and allows for successful and protective
environmental management. The lack of clarity in regulatory authorities
and standards in existing laws limits the Army's ability to plan,
program, and budget for compliance requirements. We also advocate the
empowerment of the Services to work off-post with private landowners,
local governments, public agencies, and non-profit organizations to
solve land use conflicts that threaten training.
2. Obtain resources to implement the Army's Sustainable Range
Program (SRP). SRP is the foundation for sustaining live fire and
maneuver training and the environment on our ranges. The objective of
SRP is to maximize the capability, availability, accessibility of
ranges and land to support doctrinal training and testing requirements.
SRP is based on three tenets. First, develop and maintain information
excellence to have complete data on all aspects of our ranges, their
operational characteristics as training facilities, their physical
characteristics as real property, and their characteristics as part of
the natural and cultural environment. Second, apply integrated
management across the four disciplines that directly affect ranges:
range operations and modernization; facilities and installation
management; explosives safety; and environmental management. Third,
establish an outreach campaign to inform decisionmakers and the
community and ensure that their concerns are identified and addressed.
In this way we will improve public understanding of why the Army must
conduct training and testing and how we are moving to a more
sophisticated management approach. As we have in the past, The Army
will continue to improve range operations, range modernization, state-
of-the-art land and resource management, research on munitions effects
and management of unexploded ordnance, and public outreach.
3. Support and foster cooperation among regulators and the
military, emphasizing the need to balance military readiness concerns
and environmental regulation. The Army believes that Congress should
continue to recognize that the training required for Army readiness is
a positive societal good and a legal mandate.
CONCLUSION
The Army is committed to its responsibility as an environmental
steward for the 16.5 million acres America entrusts to us. However, we
are equally committed to another precious resource that America
entrusts to us--her sons and daughters. We are obligated to provide our
soldiers with the most realistic training scenarios possible to fully
prepare them for the rigors of war. Although The Army will never
abandon its environmental responsibilities, we must have land to train.
Unless we can resolve several issues at our key training areas, we
face the very real possibility that we will lose some of our critical
training areas or, at a minimum, we will be forced to deny our soldiers
the opportunity to participate in the number and kind of exercises
required to retain perishable skills.
For 227 years, the Army has kept its covenant with the American
people to fight and win our Nation's wars. In all that time, we have
never failed them, and we never will. Building and maintaining an Army
is a shared responsibility between the Congress, the Administration,
those in uniform, and the American people. Working with Congress, we
will keep The Army ready to meet the challenges of today and tomorrow.
Thank you, Mr. Chairman and distinguished members of the committee
for allowing me to appear before you today. I look forward to
discussing these issues with you.
______
Responses of Gen. John M. Keane to Additional Questions from
Senator Smith
Question 1. Some have characterized the recent GAO report on
encroachment and military training as providing little evidence that
military readiness is being hampered by encroachment. In light of this,
why are the provisions in the Department's Readiness and Range
Preservation Initiative necessary?
Response. The GAO found that the Services have incrementally lost
training capabilities due to encroachment and absent efforts to
mitigate encroachment, can be expected to experience increased losses
in the future. Encroachment diminishes training realism and restricts
the types, locations, and times of training events. However, GAO also
found that DoD has not adequately quantified the readiness impacts
associated with encroachment on military training. The Army is working
with OSD and our sister Services to identify mechanisms for measuring
and reporting encroachment-related restrictions and their impacts on
our capability to support essential training and testing. The lack of a
quantifiable measure does not make impacts of encroachment on our live
training ranges any less real.
Over the last few years, environmental laws have been interpreted
and applied in ways that we do not believe Congress intended and to
conditions that were not anticipated when the laws were passed. Our
proposed legislation seeks clarification of congressional intent and
affirmation of principles and rules of law that have been followed for
decades. These proposals are not sweeping exemptions, but rather are
``surgical'' amendments designed to clarify how these laws are to be
applied to certain uniquely military activities that are most necessary
to ensure military readiness. I fear that if we do nothing about the
conditions facing our training areas we will have a readiness train
wreck. The time to act is now.
Question 2. If past military readiness reports have not shown
declines in unit readiness due to training deficiencies, as some read
the recent GAO report to say, then why is there any urgency to act now?
Doesn't the GAO Report's conclusion mean that DoD's training
capabilities are presently unaffected by encroachment?
Response. Historically, environmental constraints at Army
installations have not been cited as the reason for reductions of
training capabilities or readiness ratings. Environmental constraints
are often viewed as ``control measures'' necessary to avoid conflict
with environmental regulators and commanders routinely implement
training work-arounds. Over time, these constraints and work-around are
accepted as ``business as usual.'' Incremental reductions in training
capabilities have long-term cumulative impacts that may not be apparent
to individual commanders during their tour of command. The Army is
encouraging commanders to evaluate more closely the cumulative impacts
on live training that have resulted from environmental constraints and
to document those impacts as notes in Unit Status Reports and in the
Installation Status Report.
As stated in response to the previous question, GAO found that the
Services have incrementally lost training capabilities due to
encroachment and, absent efforts to mitigate encroachment, can be
expected to experience increased losses in the future. However, GAO
also found that DoD has not adequately quantified the readiness impacts
associated with encroachment on military training. The Army is working
with OSD and our sister Services to identify mechanisms for measuring
and reporting encroachment-related restrictions and their impacts on
our capability to support essential training and testing. The lack of a
quantifiable measure does not make impacts of encroachment on our live
training ranges any less real.
__________
Statement of Gen. Michael J. Williams, Assistant Commandant of the
Marine Corps
Chairman Jeffords, Senator Smith, and members of the committee,
thank you for the opportunity to speak to you concerning the Readiness
and Range Preservation Initiative. Your efforts on behalf of our men
and women in uniform ensure that the Nation's military remains ready
and that our service members and their families enjoy the quality of
life that they deserve. It is my opinion that good quality of life
begins with realistic training that will result in success on the
battlefield and the ultimate return of your Marines home to their
families.
I welcome the opportunity to offer testimony as the committee
considers the implications of encroachment. The Readiness and Range
Preservation Initiative is fundamentally important to the Nation
because encroachment is on the rise and if left unchecked will
detrimentally impact the mission of our bases, stations, and ranges in
the near term and threaten our future military readiness in the long
term. At stake for your Marine Corps is the cost of success in combat.
We must do all in our power to ensure that Marines, members of our
sister Services, and service member families do not pay an
unnecessarily high price for that success. Marines must train as they
will fight and we require access to unencumbered sea, land, and
airspace to properly conduct this training.
During the last 16 months, Service witnesses have appeared before
Congress to speak to encroachment issues at five different hearings:
the Subcommittee on Readiness and Management Support of the Senate
Armed Services Committee, 20 March 2001; the House Committee on
Government Reform, 09 May 2001 and 16 May 2002; and the Subcommittee on
Military Readiness of the House Armed Services Committee, 22 May 2001
and 08 March 2002. Thankfully, the Readiness and Range Preservation
Initiative emerged as a result of these hearings where Marine Corps
witnesses, among others, were afforded the opportunity to articulate in
detail the Corps' position on the issue of encroachment.
The challenge of encroachment is clear, as is the importance of
this hearing and the proposed Initiative. The absolute necessity of
maintaining military readiness is beyond debate, and readiness depends
upon quality training that realistically simulates combat conditions.
The issue, then, is how to balance the demands of national security
with environmental stewardship, which at times are competing but are
often complimentary.
Most of the Marine Corps' bases and stations were established in
remote areas prior to or during World War 11. Since then significant
urban development has occurred around many of these installations. At
the same time, our war fighting doctrine, weapon platforms, and tactics
have evolved to counter new threats. The Marine Corps now requires
greater standoff distances and larger maneuver areas. Simultaneously,
our access to training resources is becoming more constrained,
primarily as a result of growing populations around our bases and
stations. The dramatic urban development near many of our installations
has had numerous unintended consequences. For example, wildlife (often
threatened or endangered species) seeks out our installations, as they
are often the last remaining open spaces in areas otherwise overtaken
by human habitation and use.
Previous testimony at the hearings referenced above provided
compelling statements regarding; encroachment. The Marine Corps
recognized, however, that evidence of negative encroachment impacts,
though persuasive, were largely anecdotal. Consequently, the Marine
Corps set out to establish quantitative data regarding this issue.
Selecting Marine Corps Base Camp Pendleton, California as the subject
of the study, we examined encroachment impacts on a Marine Air Ground
Task Force during the conduct of an amphibious landing. We relied upon
established standards to measure the proficiency of Marines based upon
the Individual Training Standards of their military occupational
specialties. The performance of Marine units was assessed against long
established standards based upon Mission Essential Task Lists.
We used these standards as the building blocks upon which we were
able to quantify encroachment impacts. The study selected separate
combat arms elements of the Marine Air Ground Task Force to examine.
Completion rates for each task were evaluated through extensive
interviews with subject matter experts. Given that safety during
training is paramount, and therefore certain types of training can be
limited for safety purposes, the study concentrated on non-firing tasks
(defined as all tasks that did not involve the use of live ammunition
or explosives). In doing so, we avoided any concern that the study
would confuse safety with encroachment issues.
The initial results of the Camp Pendleton Quantitative Study were
surprising. Three combat arms elements were able to accomplish only 69
percent of established standards for non-firing field training.
Endangered species were the largest contributing encroachment factor in
this study. Figures 1 and 2 illustrate many of the restrictions along
the Camp Pendleton coastline.
[GRAPHIC] [TIFF OMITTED] T3726.001
The analysis of this study continues, and additional data will be
forthcoming. In the interim, Figure 3 is provided as a graphic example
of the study's findings. I want to note that this study is not meant to
identify the combat readiness of any particular Marine unit; instead,
the study is a report card on Camp Pendleton's ability to provide the
training environment necessary for Marines to complete their missions
to task or standard. Marines who cannot get their training at Camp
Pendleton must and do go elsewhere to train. Naturally, there are
associated costs here, not only in terms of money but also in quality
of life.
[GRAPHIC] [TIFF OMITTED] T3726.002
Naturally, evidence of negative encroachment impacts is not limited
to the Camp Pendleton Quantitative Study. Perhaps the most sweeping
example within the Marine Corps is the recent effort to designate
critical habitat on 57 percent of the 125,000-acre Camp Pendleton and
65 percent of the 12,000-acre Marine Corps Air Station Miramar. The
Marine Corps worked with the U.S. Fish and Wildlife Service to develop
a scientifically and legally based policy that precluded the need to
designate critical habitat on Miramar, and precluded the designation of
critical habitat on the vast majority of Camp Pendleton. This matter is
still subject to legal challenge by special interests groups. The
Readiness and Range Preservation Initiative has within it a provision
that would codify current Fish and Wildlife Service policy. Absent the
passage of this specific provision, environmental litigation may still
cause over 65 percent of Marine Corps Air Station Miramar and over 50
percent of Camp Pendleton to be designated critical habitat.
As our legislative response to the Pendleton/Miramar critical
habitat proposals demonstrate, clarification of existing law in
accordance with Administration policy is the purpose of the Initiative.
A roll back of the environmental stewardship responsibilities of the
armed forces is not the intent of the Initiative. Rather, by clarifying
relevant environmental statutes, the Initiative will enhance the
ability of the armed forces to train properly for combat.
A military installation can be viewed as a ``tale of two cities.''
On the one hand, our installations are comparable to many medium-sized
cities, complete with populations of 50,000 residents, schools,
wastewater treatment facilities, power plants, and a hospital. There
are environmental responsibilities associated with each of these
amenities, and we seek no relief from any of these responsibilities. A
military installation, however, is also a military combat test and
training center. The primary purpose of the military installation is to
promote military readiness. No civilian city has a similar purpose. It
is within the venue of military readiness, that we seek to address the
impact of encroachment on combat readiness activities. Our goal is to
establish the appropriate balance between our Title X responsibility to
be combat ready at all times, and our additional environmental
compliance and stewardship responsibilities. The Initiative's
provisions are focused solely on readiness activities. Marine Corps
activities unrelated to combat remain unchanged.
Encroachment has grown over time, and while each individual issue
may not seem detrimental to our training mission, it is the cumulative
effect of these, and the foreseeable increase in these encroachment
pressures that has lead the Department of Defense to seek the
clarifications of existing statutes.
Many of the measures included within the Department of Defense
legislative proposal, and all of the provisions included within the
House version of the 2002 Department of Defense Authorization Bill, are
designed to maintain the status quo so that our training can continue
at its current pace. For example, the migratory bird provision is
designed to address a recent court opinion that would, if left
unchecked, introduce a new requirement into the Migratory Bird Treaty
Act regulatory framework not present in over 80 years of the Act's
history. Similarly, the critical habitat provision codifies the current
Fish and Wildlife Service policy. This policy holds that Integrated
Natural Resource Management Plans prepared pursuant to the Sikes Act
provide the special management considerations necessary under the
Endangered Species Act. Critical habitat designation on military
installations is, therefore, unnecessary. The ecosystem management
initiatives at Camp Pendleton in California that resulted in an
increase in the number of nesting pairs of California least terns (an
endangered shorebird) from 209 pairs in 1985 to 1,064 pairs in 2001 is
an illustration of the success of our natural resource management
plans.
The Marine Corps is a good steward of the resources entrusted to
it. We are particularly proud of our success in the recovery of
endangered species at Camp Pendleton and the proactive timber
management at Marine Corps Base Camp Lejeune. We have also worked
tirelessly to preserve archeological resources at the Marine Corps
Recruit Depot Parris Island and to provide public access to recreation
areas at the Marine Corps Logistic Base, Albany. Our programs provide
for multi-function use of the real estate we manage--as long as it does
not compromise the installation's particular national defense mission.
As I noted above, environmental protection and Marine Corps
training are compatible. Our responsibility to the American people is
to maintain a high state of readiness while preserving and protecting
the environment of the Nation. Unlike commercial developers, the
military needs a natural environment for realistic field training. In
fact, our environmental management efforts have resulted in military
lands supporting proportionally a much higher number of endangered
species than Departments of Interior or Agriculture lands.
Passage of the Readiness and Range Preservation Initiative is
imperative because encroachment threatens to extend existing laws and
regulations beyond the contexts for which they were intended,
frustrating the use of military lands and test and training ranges for
their designated purposes. The Initiative is key to future readiness.
It is an appropriate response to the encroachment threat, and I
encourage your full support for this balanced approach toward both the
requirement to maintain military readiness and the requirement to
protect the environmental resources of the Nation.
______
Responses of Gen. Michael J. Williams to Additional Questions from
Senator Smith
Question 1. General, it has been said that you ``now seek permanent
waivers of the laws that apply to [military] facilities''. Is that fair
comment? If not, why isn't it fair comment?
Response. Our initiatives have been portrayed by some as attempting
to ``exempt'' the Department of Defense from environmental statutes. In
reality, the Readiness and Range Preservation 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, and ongoing cleanup activities.
Our initiative thus excludes DOD activities that have traditionally
been of greatest concern to State and Federal regulators, and includes
only uniquely military activities--what the Department does that is
unlike any other governmental or private activity.
The Department is seeking modest clarification in these laws; our
proposals would confirm--not change--regulatory policies that were put
in place under previous Administrations. Our proposals are critical to
sustaining readiness, while their environmental effects range from
neutral to positive. We want to restore an appropriate balance between
defense and environmental interests. The land, sea, and airspace we use
to train our Marines are essential national assets, but environmental
and other regulations can have unintentional consequences and greatly
limit the military's ability to effectively train for combat.
Question 2. Are the emergency exemptions provided in some
environmental laws sufficient to address the readiness concerns you
discussed in your testimony?
Response. Our initiative does not seek to ``exempt'' even our
readiness activities from environmental laws. Rather, it confirms the
previous Administration's policy in three areas: (1) INRIVIPs and
critical habitat; (2) ``harassment'' under the Marine Mammal Protection
Act; and (3) Federal agency obligations under the Migratory Bird Treaty
Act. Moreover, our initiative gives States and DoD only temporary
flexibility under the conformity provisions of the Clean Air Act, not
permanent relief. The limited changes that we seek are a more limited
approach than under the emergency authority available in most (but not
all) environmental laws. For example, invocation of existing emergency
authority would fully exempt DoD from environmental compliance
responsibilities, thereby increasing the possibility of environmental
harm. 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. Training at Camp
Pendleton, for example, is continuous, 365 days a year, with an average
of 130 daily training events. The Range and Readiness Preservation
Initiative is designed to address these day-to-day military training
needs. If I may be permitted to offer the following analogy: every car
should have a tool-box for emergencies; if you need the tool-box to get
to work every day, you probably need to fix the car. We shouldn't have
to use an exemption process to conduct daily training. We should,
instead, fix the car. We seek to address the impact of encroachment on
combat readiness activities, not to roll back environmental
requirements as some have alleged. Our goal is to establish the
appropriate balance between our Title X responsibility to be combat-
ready at all times, and our additional environmental compliance and
stewardship responsibilities. The Initiative's provisions are focused
solely on readiness activities. Marine Corps activities unrelated to
combat remain unchanged.
__________
Statement of Gen. Robert H. Foglesong, Vice Chief of Staff, U.S. Air
Force
INTRODUCTION
Committing this Nation to combat is arguably the hardest decision
the President and Congress will have to make. This Nation's leadership
expects, even demands, that its military be ready to go to war. The
effectiveness of America's military ultimately guarantees our way of
life. The United States Air Force's effectiveness starts with
training--training the way we fight. Key provisions in this year's
Defense Authorization Act (S. 2225) impact how we will manage the
installations, ranges, and airspace so vital to our combat readiness
and effectiveness.
Maintaining continued operations at our installations and access to
our ranges and airspace is critical. In fact, if our ability to train
our aircrews should diminish, America will soon lose its edge in air
combat proficiency. We cannot solely rely on current Air Force
technology to provide an advantage against our next adversary--our next
adversary may have access to more advanced equipment than ours. Our
installations, ranges, and airspace are critical national assets that
allow the Air Force to test new equipment, develop new tactics, and
train our forces to be combat-ready.
It is self-evident that we must be able to train as we are expected
to fight. To do so, we must maintain adequate test and training
resources. Our goal is to meet our evolving military needs while
addressing and resolving, to the maximum extent possible, public
concerns and Federal, tribal, State, and other agency issues. However,
competing needs or uses for these resources, coupled with legal and
procedural requirements to adjust for new mission needs, are eroding
the resource base that supports our test and training capability.
We have followed a practice of flexibility and willingness to adapt
to the extent possible without compromising our operations. Sustainable
access to ranges benefits many people. Our ranges contain significant
cultural and natural areas, are used for grazing and crop production,
and allow hunting or other forms of outdoor recreation. We share
airspace and airwaves with major sectors of our economy. However, we
are faced with restrictions as well as competing economic uses for
assets that undermine our mission performance and can ultimately affect
our readiness, a condition commonly referred to as encroachment.
RANGE MANAGEMENT AND ENCROACHMENT
The Air Force is experiencing encroachment that stresses our
ability to maintain training and readiness in several areas: spectrum,
air quality, noise, unexploded ordnance, endangered species, and access
to shared-use airspace. Chapter 101A of S. 2225 contained language
designed to clarify the interpretation and application of governing
statutes for air quality, munitions response, and species and habitat
protection that will ensure that military training and readiness are
not compromised as the military departments carry out their
environmental protection responsibilities. In addition, the legislation
provides for improved property conservation procedures to assist
private sector organizations in conserving and protecting land and
natural resources.
SPECIES AND HABITAT PROTECTION
Currently, 79 federally listed threatened and endangered species
live on approximately nine million acres of Air Force lands and waters.
As an example, on the Barry M. Goldwater Range (BMGR) in Arizona we
follow the movement of approximately 100 Sonoran Pronghorn antelope.
The DoD flies about 70,000 sorties yearly on the BMGR and our
biologists track the antelope's movements to ensure they are not in the
target area. If they are spotted, the 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
antelope.
At the Nevada Test and Training Range (NTTR), operated by Nellis
Air Force Base, the Air Force supports the Bureau of Land Management's
wild horse program on over 390,000 acres of the NTTR. In the southern
portion of the range we have fenced target areas to ensure the Desert
Tortoise is not affected by our operations. Additionally, in Nevada and
Arizona we work with local communities and tribes to ensure the
protection of cultural resources.
At Tyndall Air Force Base in Florida, we monitor the nests of about
100 Loggerhead and Green Sea Turtles daily, physically protecting their
homes with wire mesh. We do this to ensure compliance with the
Endangered Species Act (ESA) and guarantee our aircrews get the
training they need to accomplish their mission.
At Eglin Air Force Base in Florida, we electronically tag and track
endangered Gulf Sturgeon to ensure they are not impacted by our
operations. The water impact/detonation area is monitored for sturgeon
prior to training. If sturgeon are detected in the area, detonation is
moved or delayed. Eglin also serves as the home to the endangered Red-
Cockaded Woodpecker. By working closely with the FWS, we have been able
to nearly double their population. Additionally, our biologists are
doing everything possible to aid the Flatwoods Salamander and Eastern
Indigo Snake. Again, we do this to support the ESA, serve as good
stewards of our nation's resources, and maintain our combat readiness.
In some cases, our installations and ranges are the only large,
undeveloped, and relatively undisturbed areas remaining in growing
urban areas. This can result in Air Force lands becoming a refuge in
the region that can support endangered species. Biological Opinions
resulting from required Endangered Species Act assessments have
resulted in range and airspace restrictions mainly associated with
aircraft noise and munitions use. We operate with altitude restrictions
because of the noise and its possible effects on endangered species in
States such as Arizona, New Mexico, and Texas.
The potential designation of range areas as a critical habitat or
marine sanctuary may seriously limit our ability to perform training
and test missions. We need to work within the Administration to ensure
a balance between two national imperatives: military readiness and
environmental conservation.
UNEXPLODED ORDNANCE (UXO)
UXO and the disposal of residue material (primarily scrap metal) on
air-to-ground ranges is one area where we have extensively investigated
our practices and policies. UXO and range residue (used targets, inert
ordnance, etc.) physically occupy only a small part of any air-to-
ground range, but its presence is an increasingly expensive problem.
The costs associated with clearing closed ranges have led us to the
conclusion that we need to plan and manage for the entire life-cycle of
a range.
The Air Force first started clearing ordnance from active ranges in
the late 1940's. Active range clearance not only provides for safe
target area operations, but also provides airfield-recovery training
for our Explosive Ordnance Disposal technicians. Air Force policy
requires that active air-to-ground ranges be cleared on a quarterly,
annual, and 5-year basis at varying distances from each target. Our
currently scheduled UXO and residue removal program, along with
modifications to our range-clearing practices, will ensure long-term
range sustainability and the safety of personnel on the range. Our
ultimate goal is to manage our ranges effectively and efficiently
throughout the life-cycle process providing for sustainable operations,
safe and effective UXO management and long-term environmental
stewardship.
The Air Force also understands its responsibility to manage
materiel from our ordinance if it travels off-range, and supports
Section 2019 of the bill because it clarifies our obligation to respond
to potential offsite impacts from our munitions training.
AIR QUALITY
Many of our largest and most important installations are located in
areas that are experiencing rapid growth and the attendant pressures
resulting from air quality standards. A number of our bases are
currently located in ``non-attainment'' areas, which are places that
failed to meet EPA standards for air pollution, and more bases are in
areas that are trending toward non-attainment. Air quality pressures
generally affect operations at our installations more than on our
ranges, but they potentially limit our basing options for force
realignments and weapon system beddowns. If any beddown action is found
not to conform to the State implementation plan for Clean Air Act
compliance, the Air Force must either obtain air quality credits or
reduce other emissions at the base to counterbalance the impact.
Military mission requirements frequently demand operational changes
with little or no lead-time to adjust for requirements such as
conformity. The Air Force supports the legislative provision that
allows for emission limit compliance over a 3-year period so that
mission critical operations can still take place while appropriate
mitigation is arranged. We continue to work with State regulators and
local communities to ensure we have the flexibility to base aircraft at
our installations which have huge investments in infrastructure not
only on the installation itself, but also in the ranges used by its
aircraft.
SPECTRUM REALLOCATION
The RF frequencies below about 5000 MHz are the most valuable part
of the spectrum for the kinds of highly mobile functions carried out at
our test ranges. Over the past decade, the Federal Government has lost
access to over 235 MHz of bandwidth in this part of the spectrum--due
primarily to International and congressionally mandated reallocations.
For example, until 1992, the DoD and private sector aerospace industry
were authorized to use 80 MHz of designated spectrum in ``Upper-S
Band'' to transmit real-time telemetry data from flight tests of manned
aircraft. This spectrum bandwidth was needed to support increasing
telemetry bandwidths requirements for future fighters and bombers. In
1992, the World Radio Conference (WRC) reallocated the lower 50 MHz of
this frequency band to provide spectrum for broadcasting high quality
audio from geostationary satellites. In 1997, under the requirements of
the Balanced Budget Act of 1997, we were forced to transfer an
additional 5 MHz of the original 80 MHz wide frequency band, leaving
only a 25 MHz increment for flight test telemetry in this spectrum.
Loss of this 55 MHz of spectrum causes, for example, delays in major
flight-test programs.
CONCLUSION
In conclusion, we thank the committee for allowing the Air Force to
share the details of its concerns over the growing issue of
encroachment. The Air Force understands its obligation to identify
competing human and environmental needs and to establish a compatible
use of resources. However, it also recognizes it has a unique need to
perform a military mission. The multi-billion dollar effort in Defense
programs to conserve, protect, and restore the environment will
continue to achieve lasting successes in all areas of protecting human
health and the environment. The Air Force appreciates the committee's
support so that we can maintain our stewardship of the environment and
still train and prepare the men and women of the Armed Forces.
______
Responses of Gen. Robert H. Foglesong to Additional Questions from
Senator Smith
Question 1. General, some have criticized the House of
Representatives for including in its version of the fiscal year 2003
Defense Authorization Bill two of your requests, [regarding ESA and
MBTA], specifically because the House had too little information to
justify including such provisions. Is that fair comment? If not, why
isn't that fair comment?
Response. The Air Force believes the request for legislative relief
was valid for two reasons. First, the military departments have
provided Congress, 0MB, and other Federal agencies detailed
compilations of the numerous and problematic instances where expansive
interpretations of these two statutes have impaired military readiness.
Second, the GAO report on military encroachment concluded that the
``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.''
Question 2. The GAO report recommends that the DoD develop and
maintain inventories of its training ranges, capacities and
capabilities; finalize a comprehensive plan of administrative actions
that includes goals, timelines, projected costs, and the clear
assignment of responsibilities for addressing encroachment issues, and
periodically reporting on progress in addressing encroachment issues.
What are the Department's plans in terms of implementing these
recommendations?
Response. The Air Force is developing an Environmental Resource!
Capability Framework designed to identify, quantify, and assess how
military readiness can be adversely affected when access to the
resource base needed for training is limited or degraded from
incompatible uses, statutory restrictions, or economic competition.
This will enable the Air Force to measure the extent to which
encroachment has caused, or will cause training and operational
deficiencies.
Question 3. Admiral Fallon responded to a question as to how he
could justify the RRPI in light of the fact that there ``has been no
evidence, not even a study, on what the problem is''. What response
would the Air Force have to this question?
Response. The Air Force has provided Congress, 0MB, and other
Federal agencies with examples of impairments to military readiness due
to encroachment. In addition, the GAO report on military encroachment
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.''
__________
Statement of Jamie Rappaport Clark, Senior Vice President for
Conservation Programs, National Wildlife Federation
Good morning, Mr. Chairman and members of the committee. My name is
Jamie Rappaport Clark and I am here to testify on behalf of the
National Wildlife Federation, the nation's largest conservation
education and advocacy organization. I thank the committee for this
opportunity to testify on the interplay of our environmental laws and
the Defense Department's readiness activities on its military bases.
I currently serve as Senior Vice President for Conservation
Programs, where I oversee the organization's policy and advocacy work.
Prior to arriving at 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 an 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
numerous occasions during my tenures at FWS and the Defense Department,
the Defense Department 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.
Today, we are at a crossroads. Will the Defense Department continue
to build on its long record of wildlife conservation and respect for
environmental laws and protections? Or will it now retreat from its
historical role as one of the stewards of the nation's wildlife and
take on a new role as an unregulated despoiler of our environment?
Unfortunately, at the highest levels of this Administration,
efforts are underway to give the Defense Department an unwarranted free
pass from complying with the nation's environmental laws. At the center
of this effort is the Readiness and Range Preservation Initiative, a
proposal by the Administration to exempt the Defense Department from
key provisions of six environmental laws: the Endangered Species Act
(ESA), the Migratory Bird Treaty Act (MBTA), the Marine Mammal
Protection Act, the Clean Air Act, Resources Conservation and Recovery
Act, and Superfund.
At the request of the Administration, all six of these exemptions
were included in S. 2225, the Defense Authorization bill, as originally
introduced in the Senate. Fortunately, they were not included in the
Senate Armed Services Committee markup and were not added to the bill
passed by the Senate on June 28, 2002. However, two of these proposed
exemptions--concerning the ESA and the MBTA--were incorporated into the
House version of the Defense Authorization bill. Two other riders not
sought by DOD were also inserted--one that would undermine Utah
wilderness protections, and one that would waive State environmental
laws to allow a new toll road through endangered species habitat in
southern California. Attached to my testimony are fact sheets prepared
by NWF and colleagues from other environmental groups explaining each
of these exemptions. The National Wildlife Federation, along with its
colleagues in the rest of the environmental community, strongly urges
Senators on the conference committee for the DOD Authorization bill to
ensure that these attacks on environmental laws are kept out of the
conferenced bill.
I should also note that the House has placed a rider on the FY02
Supplemental Appropriations bill that would exempt DOD from its ESA
obligation to address the harmful effects of DOD decisions that deplete
local water supplies. This exemption likewise is pending before a
conference committee. We strongly urge Senators on the Supplemental
Appropriations conference committee to ensure that these attacks on
environmental laws are kept out of the conferenced bill.
OVERARCHING CONCERNS WITH THE ADMINISTRATION'S READINESS INITIATIVE
The ESA, MBTA and other environmental laws now under attack provide
an essential bulwark of protection for the ecosystems that sustain us
all. The American people understand the central role played by these
laws in maintaining their health and safety and quality of life.
According to an April 2002 poll by the Zogby public opinion research
firm, 85 percent of Americans believe that the Defense Department, like
all other Federal agencies, should comply with the nation's
environmental laws.
The National Wildlife Federation recognizes that military readiness
also is vitally important. However, where we part company with this
Administration is on whether wholesale exemptions from environmental
laws are needed to achieve readiness. 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.
The General Accounting Office recently investigated allegations
that environmental laws and other kinds of encroachments are unduly
restricting DOD's ability to carry out its readiness and training
mission. According to GAO's June 2002 report, entitled ``Military
Training: DOD Lacks a Comprehensive Plan to Manage Encroachment on
Training Ranges,'' there is no proof that environmental laws are at
fault for any of the minor gaps in readiness that may exist.
Specifically, GAO found:
<bullet> The Armed Services' own readiness data does not show that
environmental laws have significantly affected training readiness.
<bullet> DOD officials themselves admit that population growth
around military installations is responsible for past and present
encroachment problems.
<bullet> The Armed Services have never assessed the overall
impacts of encroachment on training costs.
<bullet> 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.
<bullet> DOD has not fully defined training range requirements and
lacks information on training resources available to the Services to
meet those requirements. Problems at individual installations may
therefore be overstated.
These findings make absolutely clear that DOD has not yet made its
case that environmental laws have significantly reduced DOD's
readiness. Before Congress embarks upon weakening fundamental
environmental safeguards, DOD should be asked to produce a
comprehensive study of the problems faced in achieving readiness. The
study should investigate all of the potential obstacles to achieving
readiness, including not only environmental laws but also sprawling
human populations near military installations and ineffective growth
management laws. The study also should include a discussion of
alternative approaches for achieving readiness that do not conflict
with the national environmental protection goals, such as using virtual
or constructive simulation technology.
The DOD has provided a handful of anecdotes about the difficulties
that it has faced protecting the environment at individual bases. I do
not dismiss the challenges that DOD has faced in balancing
environmental and readiness objectives at some of its bases. From my
own experience at FWS, I know that some of these problems are vexing
and can sometimes take years to resolve. However, these problems can
best be addressed by early consultations between DOD officials and
experts in FWS and other environmental agencies. Congress can help
ameliorate these problems by providing these agencies with the funds
they need to implement our environmental laws. Providing the funding
needed for inter-agency consultations would be a cost-effective
investment in both environmental protection and military readiness.
Providing nationwide exemptions to DOD would not eliminate the
challenge of balancing environmental protections and military
readiness. It would simply eliminate DOD's incentive to devise creative
solutions working in tandem with experts at the environmental agencies
and with the public. Congress should encourage DOD to work with other
agencies and the public to solve readiness and environmental challenges
at the local level, taking into account local conditions, taking
advantage of local wisdom and using existing provisions of
environmental laws.
It is my experience that the existing framework of environmental
laws provides DOD with plenty of flexibility to achieve solutions at
the local level. The National Wildlife Federation stands ready to work
with DOD to find these solutions.
Because the proposed exemptions from the ESA and MBTA will soon be
debated in conference committee, and because these are the laws with
which I have significant experience, the remainder of my testimony
today will focus on them. However, the other proposed exemptions
likewise pose a serious threat to the environment and public health. I
have attached to my testimony several fact sheets, prepared by
colleagues in other conservation groups, explaining why the other
exemptions are equally problematic.
CONCERNS WITH THE ENDANGERED SPECIES ACT EXEMPTION
The ESA exemption passed by the House differs slightly from the one
introduced in the Senate as part of the Administration's package.
Because the House language will be the subject of the upcoming debate
in conference committee, I will focus on that version.
H.R. 4546 would prohibit the Fish and Wildlife Service or National
Marine Fisheries Service (Service) from designating critical habitat on
any lands owned or controlled by DOD if an Integrated Natural Resources
Management Plan (INRMP) has been developed pursuant to the Sikes Act
and the Service determines that the plan ``addresses special management
consideration or protection.'' This exemption is problematic in a
number of respects.
Eliminates a Crucial Species Protection Tool
First, this exemption would take away a crucial tool for ensuring
the survival and recovery of imperiled species. Of the various ESA
protections, the critical habitat protection 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.
Under Section 7 of the ESA, DOD is required to consult about its
proposed training actions with wildlife experts at the Services. This
consultation typically leads to development of what is known as a
``work-around,'' a strategy for avoiding or minimizing harm to listed
species and their habitats while still providing a rigorous training
regimen.
H.R. 4546 would replace these crucial protections with management
plans developed pursuant to the Sikes Act, which does not require the
protection of listed species or their habitats. It merely directs DOD
to prepare INRMPs that protect wildlife ``to the extent appropriate.''
Thus, even INRMPs that allow destruction of essential habitat and that
put fish, wildlife or plant species at serious risk of extinction would
be substituted for critical habitat protections.
Moreover, the ESA's consultation procedure that currently enables
DOD and the Service to ``look before they leap'' into a potentially
harmful training exercise would be sacrificed. Under H.R. 4546, the
Service can do nothing more than rubber stamp DOD's management plan
upon submittal, so long as the plan contains ``special management
considerations.'' The Service has no subsequent consultation role as
individual training exercises are devised.
This reduction in species protection 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.
Readiness Can Be Achieved Without Sacrificing Species Protection
A second reason why the ESA exemption is problematic is because it
takes away crucial species protections without any clear gains in
military readiness. There is simply no evidence that elimination of ESA
protections would improve readiness. In fact, negotiations of work-
arounds under the ESA typically produce a ``win-win,'' where readiness
is achieved while imperiled species are protected.
Allow me to provide a few brief examples. 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. 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.
These examples, along with additional ones that we provide in our
ESA fact sheets attached to this testimony, highlight a major trend
that I believe has been missed by those promoting the DOD exemptions.
In recent years, DOD has increasingly incorporated the concept of
sustainability into its management plans. It has done this not just in
response to environmental laws, but also because sustainable use of DOD
lands often makes sense from a military readiness and cost-
effectiveness standpoint. By leaving woodpecker colony trees intact,
DOD preserves a realistic training scenario for those who would be
fighting battles in forested areas abroad. By operating tanks so that
they avoid the threatened desert tortoise, DOD prevents erosion, a
problem that is extremely difficult and costly to remedy.
The ESA Already Provides DOD With Two Safety Valves if Irreconcilable
Conflicts Were to Arise
A third reason why the ESA exemption is problematic is because the
ESA already provides DOD with the necessary flexibility to meet its
training objectives. As I already mentioned, the Section 7 consultation
process provides a very workable mechanism for DOD and the Services to
negotiate solutions to virtually every challenge that arises. If that
process does not lead to a solution, Congress provides at least two
safety valves.
First, 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 that the
challenge of reconciling training needs with species conservation is
adequately being addressed in the Section 7 consultation process.
Second, under Section 4(b) of the ESA, the Service is authorized to
exclude any area from critical habitat designation if it determines
that the benefits of exclusion outweigh the benefits of specifying the
area. (An exception is made for when the Service finds that failure to
designate an area as critical habitat will result in the extinction of
a species--a finding that the Service has never made.) In making this
decision, the Service 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 the vast majority of habitat at Camp
Pendleton--habitat deemed critical in a proposed rulemaking--from final
critical habitat designations.
As this example illustrates, where there are site-specific
conflicts between training needs and species conservation needs, the
ESA provides a mechanism 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.
I have attached several ESA fact sheets that highlight additional
reasons why a nationwide ESA exemption for DOD is inappropriate.
CONCERNS WITH THE MIGRATORY BIRD TREATY ACT EXEMPTION
The MBTA exemption passed by the House differs slightly from the
one introduced in the Senate as part of the Administration's package.
Because the House language will be the subject of the upcoming debate
in conference committee, I will focus on that version.
H.R. 4546 completely exempts DOD from any obligation to comply with
the MBTA when migratory birds are incidentally taken as a result of its
readiness activities. This nationwide exemption would greatly reduce
protection of migratory birds, and it has not been shown to be
necessary to achieve readiness objectives.
The Defense Department has cited just one example of how the MBTA
could be used to prevent it from achieving readiness objectives: the
recent court ruling in Center for Biological Diversity v. Pirie, 2002
WL 389944 (D.D.C. 2002). In that case, a trial judge agreed with
environmentalists that DOD had violated the MBTA in connection with its
live fire training exercises on the island of Farallon de Medinilla.
The court enjoined the training exercises until DOD secured a permit.
There are at least two important reasons why this court ruling
should not form the basis for awarding DOD a nationwide exemption from
MBTA. First, the ruling has been appealed, and the injunction will be
stayed for the entire length of the appeal. It makes no sense to enact
legislation when the sole basis for that action could disappear when
the appellate court issues its ruling. Second, DOD has now applied to
the U.S. Fish and Wildlife Service (FWS) for a ``special purpose''
permit to allow its live fire training activities on Farallon de
Medinilla to continue. It would be premature for Congress to act before
the permitting process has played itself out and the scope of the
problem is better understood.
The National Wildlife Federation strongly opposes any legislative
changes to the MBTA until at least two crucial steps are taken. First,
Congress should give breathing space to collaborative efforts currently
being undertaken by the Federal agencies. Beginning with the
Administration in which I served and continuing with the current
Administration, FWS has embarked upon developing a series of Memoranda
of Understanding (MOUs) with each Federal agency with activities
affecting migratory birds. These MOUs, which are designed to protect
migratory birds while giving Federal agencies the flexibility they need
to accomplish their missions, are an important step forward for the
MBTA program, and Congress should provide sufficient time for the
agencies to make them work.
Second, a thorough policy review is needed to determine how best to
modernize the overall MBTA program. Growing human populations and
sprawling development patterns have led to increased interactions
between people and migratory birds and serious declines in many bird
populations. Neither Congress nor recent Administrations have ever
seriously attempted to grapple with this problem in a comprehensive
way. Before making changes to this important statute, Congress should
undertake or help launch a major review of the challenges faced in
implementing the MBTA and the potential policy responses to those
challenges. If this committee were to elect to proceed down this path,
the National Wildlife Federation would be willing to assist. Among
others, the following issues would need to be considered:
<bullet> What is the extent of incidental takings of migratory
birds and their nests in the U.S.? Which human activities cause the
greatest amount of takings? Which activities pose the greatest threat
to bird populations?
<bullet> What strategies have been employed by FWS to protect
migratory birds from harm caused by incidental takings? What
improvements are needed? Can we buildupon these strategies, or is an
entirely new approach needed?
<bullet> Does FWS have the authority to authorize incidental
takings under the MBTA and the underlying treaties? What amount of
mitigation or compensation would the Interior Department need to
require from permit applicants to achieve compatibility with the MBTA
and the treaties?
<bullet> Could FWS reasonably be expected to impose permitting
requirements on non-Federal entities, which are not subject to the
threat of citizen suits (as are Federal agencies under the APA)? If FWS
exercises its discretion not to enforce the MBTA against non-Federal
entities, could it reasonably be expected to impose permitting
requirements solely on Federal entities?
<bullet> If FWS were to institute a program for the permitting of
incidental take by Federal and/or non-Federal entities, how would the
program be designed? How many permit applications could be expected?
How would offsetting conservation measures be designed, funded,
implemented and monitored?
<bullet> What funding is currently provided to FWS and other
agencies to implement the MBTA? How much additional funding would be
needed to implement a program for the permitting of incidental take?
What are the prospects of securing such funding?
<bullet> What other policy approaches are available to regulate
incidental take aside from a permitting program? How much funding would
these approaches require?
<bullet> What has been the role of the States in implementing the
MBTA? What role should they play?
<bullet> What would be the effect of deregulating incidental take?
Are there ways to protect migratory birds from the harmful incidental
effects of human activity apart from a regulatory prohibition?
<bullet> If we conclude that deregulating incidental take is
appropriate with respect at least some kinds of human activity (e.g.,
certain DOD training exercises), could this be accomplished without
congressional involvement? If congressional action is needed, would
revision of the MBTA to exempt certain activities violate the
underlying treaties? What would be the implications of treaty
violations?
<bullet> Is work needed to clarify or improve the treaties? What
is the potential for working with this Administration and Canada,
Mexico, Russia and Japan on updating the treaty framework?
As this list of unanswered questions makes clear, updating the MBTA
to address the major challenge of conserving migratory birds would not
be a simple task. Allowing individual agencies faced with a site-
specific problem to rush into Congress and secure nationwide exemptions
would complicate the task even further. It would encourage any other
agency with an MBTA issue to appeal immediately to Congress rather than
participating in the normal administrative and judicial processes.
Congress should reject the Administration's attempt to secure an ad
hoc exemption from the MBTA for DOD. Any changes to MBTA should be made
only after careful study of the new approaches being taken, the
problems being encountered and the potential policy solutions, and only
after substantial opportunities for public input and debate. To
sidestep these precautionary measures and grant ad hoc exemptions would
potentially violate our treaty obligations to the countries with which
we share migratory birds. Such an action also would betray the millions
of people in this country who care deeply about the future of their
migratory birds.
CONCLUSION
In summary, the National Wildlife Federation strongly opposes the
Administration's efforts to exempt DOD from the nation's environmental
laws. We urge Senators who participate in the conference committees for
the Defense Authorization bill or the Supplemental Appropriations bill
to reject the exemptions found in the House versions of those bills, as
well as any other efforts to weaken environmental protection under the
guise of national security.
Thank you for the opportunity to testify today.
______
Operation RCW: The New Air-Ground Team
The Marines
We're Saving A few Good Species
Teamwork between air and ground forces is critical to the success
of the U.S. Marine Corps, but when Marines take the field at Camp
Lejeune, they often find the red-cockaded woodpecker already controls
the sky. That's because the Marines, teaming up with the U.S. Fish and
Wildlife Service, are proving that a first-rate military force can
train while protecting endangered species. One result: the red-cockaded
woodpecker is thriving at Camp Lejeune. That's what happens when your
best friends are Marines.
National Wildlife Federation Factsheet:
Oppose Any Amendments To S. 2225 That Would Exempt DOD From The
Endangered Species Act Or Other Environmental Laws
In response to a last-minute request from the Department of Defense
(DOD), the House of Representatives added language to its FY03 defense
authorization bill, H.R. 4546, that would greatly reduce DOD's
obligations under the Endangered Species Act and other environmental
laws. DOD will likely seek similar exemptions when S. 2225, the Senate
Armed Service Committee's defense authorization bill, is reconciled
with the House bill in conference committee.
H.R. 4546 would prohibit the Fish and Wildlife Service or National
Marine Fisheries Service (Service) from designating critical habitat on
any lands owned or controlled by DOD if an Integrated Natural Resources
Management Plan (INRMP) has been developed pursuant to the Sikes Act
and the Service determines that the plan ``addresses special management
consideration or protection.'' To safeguard this nation's natural
heritage--especially the hundreds of imperiled species residing on
military lands--this ESA exemption must be removed.
DOD CAN ACHIEVE READINESS WITHOUT WEAKENING THE ESA
H.R. 4546's changes to the ESA are not needed for DOD to take
whatever action it deems necessary to achieve military readiness. The
ESA already provides an exemption from the law's requirements if the
Secretary of Defense finds an action must be carried out for reasons of
national security. If protecting critical habitat hampers national
security efforts at a particular training facility, DOD can seek an
exemption under Section 7(j). To this date, no exemption has ever been
sought. DOD also can request that the Service exercise its authority
under the ESA to exclude specific parcels from critical habitat
designations altogether where such designations would conflict with
training needs. Providing DOD with a blanket legislative exemption,
which would apply in the many places where no conflict between wildlife
conservation and national security exists, is unjustified.
H.R. 4546 ELIMINATES THE DUTY TO DESIGNATE AND PROTECT CRITICAL
HABITAT--A CRUCIAL SAFETY NET FOR SPECIES ON THE BRINK OF EXTINCTION
The ESA requires that the Service designate critical habitat, and
that Federal agencies avoid taking action that will destroy or
adversely modify that habitat. Critical habitat is defined by the ESA
as habitat needed by imperiled species to remain viable over the long
term. Whereas other ESA provisions focus on ensuring short-term
survival needs, the ESA's requirement to protect critical habitat is
the only provision that clearly addresses what is needed to achieve the
law's basic goal--recovery and removal from the list of threatened and
endangered species. Thus, critical habitat protection is an essential
part of the law's ``safety net'' for imperiled species.
By requiring that critical habitat protection be replaced by
INRMPs, H.R. 4546 would remove this crucial safety net. Unlike the ESA,
the Sikes Act does not require protection of imperiled species. It
merely directs DOD to prepare INRMPs that protect wildlife ``to the
extent appropriate.'' Under H.R. 4546, even INRMPs that put fish,
wildlife or plant species at risk of extinction would be substituted
for critical habitat protections.
H.R. 4546 DOES NOT PROVIDE FOR MEANINGFUL REVIEW OF INRMPS
Under its current informal policy, the Service applies a three-part
test to determine whether an INRMP sufficiently protects imperiled
species to justify substituting the INRMP for critical habitat
designation. On at least three occasions over the past year, the
Service concluded that INRMPs were not sufficiently protective and went
forward with critical habitat designation. Under H.R. 4546, the
Service's review function would essentially be eliminated. Instead, it
would be required to substitute an INRMP for critical habitat
protection whenever the INRMP ``addresses special management
consideration or protection.'' Under this exceedingly loose standard,
the Service would essentially be precluded from designating critical
habitat on military lands, even in cases where the INRMP fails to
adequately protect imperiled species.
H.R. 4546 WEAKENS SPECIES PROTECTIONS ON LANDS NOT USED FOR MILITARY
TRAINING
H.R. 4546 requires that INRMPs be substituted for critical habitat
protections on lands ``owned or controlled'' by DOD, regardless of
whether the military is actually using those lands for any training
exercises. Thus, the bill would exempt DOD from its ESA obligations
even in places where no training is taking place. For example, at Camp
Pendleton in southern California, DOD leases some of its land to the
San Onofre State Beach Park. H.R. 4546 would deny critical habitat
protections to several endangered species there, including the
tidewater goby, California gnatcatcher, and the southwestern arroyo
toad--causing harm to these species without providing any military
benefits.
H.R. 4546 LEAVES SPECIES VULNERABLE TO HARM FROM NON-DOD FEDERAL
ACTIVITIES
Where critical habitat has been designated on military land,
offsite activities of non-DOD Federal agencies that cause harm to that
habitat (e.g., road building by the Federal Highway Administration that
causes excessive sedimentation in a salmon stream) would normally be
subject to ESA review. Under H.R. 4546, this review, and a key
opportunity for modifying the harmful activity, would be eliminated.
This is because INRMPs, unlike critical habitat designations, govern
only the activities of DOD.
H.R. 4546 REDUCES DOD'S DUTY TO CONSULT UNDER THE ESA
Despite its language stating that it does not affect the duty of
DOD to consult with the Service under Section 7 of the ESA, H.R. 4546
in fact substantially reduces DOD's duty to consult. When an action is
proposed in a habitat important to an imperiled species but not
currently occupied, the consultation duty under the ESA normally arises
only if that habitat has been formally designated as critical. Under
H.R. 4546, critical habitat designation would be eliminated, and thus
DOD would be relieved of any responsibility to consult with the Service
about the impact of its activities.
H.R. 4546'S ESA LOOPHOLE WAS ADOPTED WITHOUT ADEQUATE OPPORTUNITY
FOR REVIEW
The House adopted DOD's proposed ESA loophole without any hearings
or any other effort to receive input from individuals and groups
outside DOD. Such far-reaching changes to the ESA, our nation's most
important wildlife law, should be considered carefully within the
committee of jurisdiction, with adequate time for review and input by
interested and knowledgeable parties.
Please ask your Senators to oppose amendments to the Defense
Authorization bill that exempt DOD from the Endangered Species Act and
other environmental laws!
______
Conserving Imperiled Wildlife at Military Bases: DOD has not Identified
any Problems Justifying an ESA Exemption
At the request of the Department of Defense (DOD), the House of
Representatives has added language to its FY03 defense authorization
bill, H.R. 4546, that would greatly reduce DOD's obligations under the
Endangered Species Act and other environmental laws. DOD will likely
seek similar exemptions when S. 2514, the Senate Armed Service
Committee's defense authorization bill, comes to the Senate floor or in
conference committee.
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.
Why does DOD nonetheless seek a sweeping ESA exemption? It turns
out that DOD has nothing to offer besides a handful of anecdotes about
being required to come to the negotiating table to develop ``work
arounds'' to protect the last remaining habitats of endangered species.
An analysis of these 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 these successful
negotiations, DOD has never found it necessary to utilize the
``national security'' exemption procedure provided by the ESA.
CAMP PENDLETON, CALIFORNIA
DOD ASSERTION: ``Sixty percent of Camp Pendleton is designated as
critical habitat for the endangered California gnatcatcher''
threatening to render the base ``unusable for realistic combat
training.''
THE REST OF THE STORY: This is incorrect. The U.S. Fish and
Wildlife Service (FWS) initially proposed to designate critical habitat
for the gnatcatcher at Camp Pendleton, but ultimately determined that
the benefits of exclusion outweighed the benefits of designation and
exercised its discretion under current law to exclude all of Camp
Pendleton from the gnatcatcher's critical habitat designation.
In fact, despite the presence of 18 endangered species, less than 6
percent--not the reported sixty percent--of Camp Pendleton's 125,000
acres is designated as critical habitat for any species. Camp
Pendleton's successful efforts to protect the endangered 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.''
DOD ASSERTION: ``There's 17 miles of beach line at Camp Pendleton
and about 500 yards of that can be used for amphibious operation.''
THE REST OF THE STORY: The biggest limitation on training is not
critical habitat designation but the presence of Interstate 5, 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 5- to 6-month
nesting seasons of the endangered Western snowy plover and California
least tern.
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' 5- 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
leatherback 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 Senators to oppose amendments to the Defense Authorization bill
that exempt DOD from the Endangered Species Act and other environmental
laws!
______
DOD has a Long History of Working Successfully with the ESA
At the request of the Department of Defense (DOD), the House of
Representatives has added language to its FY03 defense authorization
bill, H.R. 4546, that would greatly reduce DOD's obligations under the
Endangered Species Act (ESA) and other environmental laws. DOD will
likely seek similar exemptions when S. 2514, the Senate Armed Service
Committee's defense authorization bill, comes to the Senate floor or in
conference committee.
DOD argues 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 seeks 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 Senators to oppose amendments to the Defense Authorization bill
that exempt DOD from the Endangered Species Act and other environmental
laws!
Title XIV-UTTR--A Backdoor Attack on Utah Wilderness in Defense
Authorization Act H.R. 4546
The Defense Authorization Act passed out of the Armed Services
Committee of the House of Representatives with a last minute anti-
wilderness provision inserted in the Chairman's Mark.
This last minute addition (Title XIV-UTTR) would:
1. Undermine the Wilderness Act of 1964 with unacceptable and
unjustified wilderness management language;
2. Dramatically expand DOD control of over 11 million acres of
Bureau of Land Management (BLM) public land when DOD currently controls
only the airspace above these lands
3. Designate minimal acreage as wilderness which would have less
protection than these lands currently have as Wilderness Study Areas;
4. Stop a BLM planning process which will likely result in
additional Wilderness Study Areas.
This Utah Test & Training Range (UTTR) provision has the following
serious problems:
1. It puts in place never-before used management language for newly
designated wilderness that would allow new and unrestricted on-the-
ground military development on Bureau of Land Management (BLM) lands
designated as wilderness; allow the military to unilaterally close
public access within designated BLM wilderness; explicitly deny a
Federal water right necessary to protect wildlife and other natural
resources within designated wilderness; and release 100,000's of acres
of BLM-identified wilderness-quality lands from current and future
consideration as Wilderness Study Areas. Taken together, these
provisions go far beyond any language ever included in enacted
wilderness legislation.
2. It would also put in place unprecedented high levels of DOD
control for all BLM lands falling underneath the airspace of the Utah
Test and Training Range (UTTR)--turning about 10,000 square miles of
Utah into a de facto military reserve by requiring that the Secretary
of Interior get permission from the Secretary of the Air Force and the
Utah National Guard before changing or updating any Resource Management
Plan for BLM lands falling underneath UTTR airspace.
3. Finally, it would dramatically shortchange the American public
when it comes to protecting deserving wilderness lands. The provision
designates as wilderness only a small portion of lands included in
America's Redrock Wilderness Act (H.R. 1613 and S. 786)--a bills
currently co-sponsored by 162 members of the House of Representatives
and 16 members of the Senate.
At the least, this far-reaching attempt to weaken the Wilderness
Act of 1964, expand DOD control over BLM lands, and shortchange the
amount of wilderness to be designated in Utah should go through normal
congressional processes, including congressional hearings where the
public has an opportunity to comment. Burying this provision in the
Defense Authorization Bill so that it cannot be considered in the light
of day is a serious abuse of the legislative process.
In addition:
1. DOD has not released any reports demonstrating a need for
Title XIV.
2. DOD has not requested Title XIV.
3. There has never been any conflict between conservation
groups and the DOD use of the Utah Test and Training Range
airspace even though over 440,000 sorties have been flown in
the UTTR airspace since the Wilderness Study Areas were
created.
4. Title XIV has not been the subject of a congressional
hearing in the House or Senate Armed Services Committees.
5. Title XIV was not subject to the regular amendment process
in the House Armed Services Committee due to its introduction
as part of the Chairman's mark.
6. The House Resources Committee and the Senate Energy
Committee are the committees having jurisdiction over all
decisions concerning wilderness on BLM lands but have had no
opportunity to review or comment on Title XIV.
7. Title XIV was not subject to amendment on the House floor
even though an amendment to strike Title XIV was sought by the
ranking member of the House Armed Services Committee, the House
Minority Leader, and the sponsor of H.R. 1613 (America's
Redrock Wilderness Act) which is cosponsored by 162 House
members. Additionally, Representative Boehlert (R-NY) sent a
memo to other moderate House Republicans indicating that he
would vote to strike Title XIV if an amendment to strike was
allowed on the House floor by the Rules Committee.
8. The eventual rule that guided House floor debate was
highly contested--passing on a narrow 215-200 vote.
The view that Title XIV is both procedurally and substantively
flawed is shared by many members of the Armed Services Committee--see
pages 348-349 of their report for ``Additional Views Concerning Title
XIV--Utah Test and Training Range.'' These members of the Armed
Services Committee conclude their assessment of Title XIV with the
following:
The bottom line is two fold. All House members have a stake
in preserving the committee process. House rules on committee
jurisdiction exist for a reason, and we should abide by them
absent some compelling exceptional justification. None has been
provided here.
Second, it is wrong to ram through any committee contentious
provisions of sweeping scope and substantive import. This wrong
has been exacerbated in this case by the absence of committee
hearings and the legislative legerdemain of embedding a
previously unseen title of the bill in the chairman's mark.
We cannot sanction procedural and substantive transgressions
of this magnitude.
______
DoD Fiscal Year 2002 Authorization--Foothill Tollroad Rider Fact Sheet
OVERVIEW
The House Version of the fiscal year 2002 Department of Defense
Authorization Act contains a provision that would exempt the Secretary
of Defense from California State law when granting an easement for a
controversial, environmentally damaging toll road through a California
State Park that is leased to California by the Marine Corps.
THE FOOTHILL TOLLROAD SOUTH
<bullet> Sixteen mile-long, four lane toll road in southern Orange
County and northern San Diego County
<bullet> The road will bisect some of the last open space in
southern Orange County, pave over vital habitat critical to the
survival of at least eight endangered species (including steelhead
trout and the coastal California gnatcatcher), greatly expand urban
sprawl and increase water pollution.
<bullet> The ``preferred alignment'' of the toll road will also run
directly through San Onofre Beach State Park.
<bullet> The park comprises over 2,000 acres and is part of
one of the last large coastal open spaces in Southern
California.
<bullet> With well-over a million visitors in 1995-1996, San
Onofre is the 10th most visited in California's State Park
system.\1\
\1\ California Department of Parks and Recreation, Mitigation
Assessment of FTC-South Impacts on San Onofre State Beach, August 1997,
at p. 2.
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A RIDER WILL EXEMPT APPROVAL AND OPPERATION OF THIS PROJECT FROM
CALIFORNIA LAW
<bullet> The United States Marine Corps owns land which it leases
to the State of California for San Onofre State Beach Park.
Accordingly, before the Park may be used as a possible route for the
Foothill Tollroad, the Secretary of Defense must grant an easement
across the property.
<bullet> Section 2867 of the House fiscal year 2002 Defense
Authorization Act would require the Secretary of Defense to grant an
easement for the construction of the Foothill South to the
Transportation Corridor Agencies (``Agency'') ``notwithstanding any
provision of State law that would otherwise prevent the Secretary from
granting the easement or the Agency from constructing, operating, or
maintaining the restricted access highway'' (emphasis added).
<bullet> Effect of this language would be to totally exempt the
Secretary of Defense from all California environmental, public safety
and transportation laws.
<bullet> This language could also be interpreted as totally
exempting the Transportation Corridor Agencies--which is not a part of
the Department of Defense or even a Federal agency--from California
State law.
______
The Kolbe Amendment
An amendment added to fiscal year 2002 Supplemental Spending bill
by Rep. Kolbe attempts to exempt the Department of Defense from
complying with the substantive and procedural protections of the
Endangered Species Act (Sec. 7) when imperiled species or their
habitats are threatened by increases in off-base water consumption that
result from decisions made by the DoD. This nationwide exemption seeks
to create a new precedent to prevent the assessment, and mitigation, of
indirect impacts of certain DoD actions. This provision provides the
DoD a different standard of effects analysis than those that apply to
virtually every other Federal entity. The consideration of indirect
effects of a Federal action is a well-established legal principal in
many our nation's environmental laws, such as the Endangered Species
Act and the National Environmental Policy Act. Similarly, this
provision could prevent any analysis of interrelated and interdependent
actions that would not occur but for an action taken by the DoD as
required by the ESA.
This amendment could also adversely affect other water users. As it
seeks to prevent the DoD from being held responsible for off-base
impacts that would not occur but for the Department's actions, water
users that share a water basin with the DoD could find themselves
bearing responsibility for the off-base impacts caused by a Department
decision.
Although the amendment is superficially limited to water
consumption that occurs off of the military base and that is ``not
under the direct authority and control'' of the Secretary of Defense,
it arguably exempts Defense Department actions that could have major
offsite impacts. For example, Defense Department actions, such as
hiring decisions or defense contracting, can have significant growth-
inducing effects in a community. However, because the water use of
those new hires may not be within the direct control of the Defense
Department, such decisions could be exempt from ESA review under this
amendment. Moreover, the Department of Defense could potentially exempt
many of its actions from the ESA simply by outsourcing its functions
through defense contracts. This provision might well allow DOD to carry
out actions that clearly will cause the extinction of a species without
any consideration, through the FWS consultation process, of mitigation
measures or reasonable alternatives that might protect the species.
THREATENS A NATIONALLY RECOGNIZED ECOLOGICAL TREASURE
One area particularly threatened by this amendment is Arizona's San
Pedro River, one of the richest biological reserves in all of North
America. In 1988 Congress designated it as the San Pedro National
Riparian Conservation Area. It was the first ``Globally Important Bird
Area'' identified in North America by the American Bird Conservancy and
was also recognized by the Nature Conservancy as one of the world's
eight ``Last Great Places''. According to an April 2000 article in
National Geographic ``82 species of mammals--a community unmatched
anywhere north of the tropics-inhabit this valley'' and ``the San Pedro
harbors the richest, most dense and diverse inland bird population in
the United States as well--385 species.''
The immediate impact of this amendment could be to further threaten
the survival of San Pedro River. Today, the San Pedro is being
dewatered as a result of water consumption, and much of that water
consumption is a result of the Department of Defense's operations at
Fort Huachuca, an army base located near the river. Under the terms of
this amendment, the Fort's actions, many of which result in additional
personnel moving to Sierra Vista and, consequently, in increased water
consumption, could occur without any consideration of the extent to
which they jeopardize the river and its rare species and without any
consideration of alternatives that might be reasonably be available.
______
Backgrounder on the Readiness and Range Preservation Initiative's
Proposed Exemptions from the Clean Air Act
The Readiness and Range Preservation Initiative's (RRPI) proposed
revisions to the Clean Air Act are designed to exempt the Department of
Defense from having to comply with our national public health air
quality standards, called national ambient air quality standards or
NAAQS. This means that those living in areas with military bases could
breathe dirtier air, which could result in more premature deaths,
asthma attacks, cardiopulmonary problems, and other adverse health and
environmental effects. The sweeping exemptions within this proposal are
unnecessary as the Clean Air Act has ample provisions to reconcile
clean air requirements with national security and military readiness
concerns.
THE THREAT TO PUBLIC HEALTH
The Clean Air Act requires states to analyze their pollution, and
then develop comprehensive plans that delineate how a State will attain
the Federal air quality standards and how it will verify such
attainment.\1\ The Federal Government is required to do its share,
ensuring that its activities do not impair air quality and conform to
any applicable Federal or State implementation plan for attaining the
NAAQS.\2\ This means that DOD activities cannot cause or contribute to
a violation of any NAAQS, increase the frequency or severity of NAAQS
violations, or delay attainment of a standard. To ensure this, certain
proposed Federal activities trigger an analysis of emissions to
determine the activity's impact on air quality, called a conformity
analysis. If this analysis shows that pollution will increase above a
certain threshold amount (this varies from 25--100 tons per year
depending on the pollutant and the region's attainment status\3\), the
Federal Government must take steps to mitigate or offset these
additional emissions.
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\1\ 42 USC Sec. 7511a (Sec. 182).
\2\ 42 USC Sec. 7506(c) (Sec. 176(c)).
\3\ 40 CFR Sec. 93.153(b)(1) and 40 CFR Sec. 51.853(b) and (c).
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Because RRPI defines military readiness so broadly, it attempts to
permanently exempt DOD from conforming to Federal or State
implementation plans for attaining the NAAQS for a broad range of
activities. RRPI attempts to give DOD a 3-year extension on its
conformity analysis and allow the Federal Government to proceed with
its activities while analyzing those same activity's effects on air
quality. Although the RRPI contains language requiring DOD to cooperate
with a State to ensure conformity within 3 years of the date of new
activities, it subsequently attempts to remove all the hammers for
ensuring that they do so and to preempt a State from taking action to
require reductions from the DOD. Thus, an area that violates the NAAQS
because of these military activities could no longer have to take steps
to meet them or take additional steps to reduce air pollution. This
could result in those living in areas with military bases breathing
dirtier air, which could result in more premature deaths, asthma
attacks and other adverse health and environmental effects.
THE PROPOSED EXEMPTIONS ARE UNNECESSARY
These exemptions are unnecessary as the Clean Air Act provides
ample mechanisms for exempting DOD activities where there is a military
or a national security need. Notably, the DOD has been unable to
provide a single example of the Clean Air Act hampering military
readiness. In fact, examples provided in the DOD's own materials
demonstrate that the Clean Air Act provides adequate flexibility for
military activities.
Exemptions
1. If the President ``determines it to be in the paramount interest
of the United States. . . .'' he may:
<bullet> exempt any emission source of any Federal
department, agency or instrumentality from compliance with
local, State or Federal air pollution requirements, processes
and sanctions for two consecutive 1 year periods, or
<bullet> issue regulations exempting from compliance ``any
weaponry, equipment, aircraft, vehicles, or other classes or
categories of property owned or operated by the Armed Forces .
. . .'' for unlimited 3 year intervals\4\
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\4\ 42 USC Sec. 7418(b) (Sec. 118(b)).
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2. Initial actions in response to ``emergencies or natural
disasters'' are exempt from conformity, and continuing actions for
unlimited 6 month periods if the head of DOD makes a written
determination that the conformity analysis would lead to an
unacceptable delay.\5\ Emergency is defined as ``a situation where
extremely quick action on the part of Federal agencies involved is
needed where the timing of such Federal activities makes it impractical
to meet the requirements of this subpart, such as natural disasters
like hurricanes or earthquakes, civil disturbances such as terrorist
attacks and military mobilizations''.\6\
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\5\ 40 CFR Sec. 51.853(d)(2) and (e) respectively, and
Sec. 93.153(d)(2) and (e) respectively.
\6\ 40 CFR Sec. 93.152
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3. The following Federal activities are exempt from conformity.
``the routine, recurring transportation of material and personnel'',
[r]outine movement of mobile assets, such as ships and aircraft, in
home port reassignments and stations (where no new support of
facilities or personnel are required) to perform as operational groups
and/or for repair or overhaul.''\7\
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\7\ 40 CFR Sec. 51.853(vii) and (viii) respectively, and
Sec. 93.153 (vii) and (viii) respectively.
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4. Actions that ``implement a foreign affairs function'' of the
U.S. are exempt from conformity.\8\
---------------------------------------------------------------------------
\8\ 40 CFR Sec. 51.853(c)(xviii) and Sec. 93.153(c)(xviii).
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these sweeping exemptions have been proposed without adequate review
RRPI's sweeping exemptions have been proposed at the last moment
and without adequate review and discussion. The late notice and rushed
nature of these proposals indicates an unwillingness to have a full and
fair debate. Far reaching changes that attempt to exempt the Federal
Government from its own public health and environmental laws must
receive careful consideration by the committees of jurisdiction with
adequate time for review and input by interested and knowledgeable
parties. The Clean Air Act is one of the nation's oldest and most
successful environmental and public health laws. It must not be rolled
back in a hasty and unnecessary attempt to exempt DOD from complying
with our national public health air quality standards.
______
State and Territorial Air Pollution Program Administrators/
Association of Local Air Pollution Control Officials,
Washington, DC, May 2, 2002.
Hon. Carl Levin, Chairman,
Committee on Armed Services,
U.S. Senate,
Washington, DC.
Hon. John W. Warner, Ranking Member,
Committee on Armed Services,
U.S. Senate,
Washington, DC.
Dear Senator Levin and Senator Warner: 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 representing State and local air pollution
control officials--I 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 your Committee's mark-up of DOD's
authorization legislation for fiscal year 2003.
It is our associations' understanding that, as part of your
Committee's forthcoming deliberations over the Department of Defense
Authorization Act for Fiscal Year 2003, amendments to various
environmental and public health statutes will be offered. These
amendments, which are based on recommendations by DOD, would provide
broad statutory exemptions for purposes of military readiness. We urge
your Committee to reject these changes, including those to Section 176
of the CAA, relating to the conformity of Federal actions (including
those of DOD) to Federal or State implementation plans for attaining
health-based National Ambient Air Quality Standards. STAPPA and ALAPCO
believe that such exemptions are unnecessary, in that the CAA already
provides DOD ample flexibility to carry out its duties during times of
war and emergency.
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 further, 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 me at (202) 624-
7864.
Sincerely,
S. William Becker.
______
Please Oppose The Department of Defense's Attempt To Weaken Our
Nation's Toxic Waste Management and Clean Up Laws
The Department of Defense (``DoD'') is attempting to weaken the
ability of states, EPA, and citizens to protect public health and
environmental quality from toxic waste. DoD is seeking broad exemptions
from two laws: (1) the Comprehensive Environmental Response
Compensation and Liability Act (``Superfund''), our nation's preeminent
toxic waste cleanup law; and (2) the Resource Conservation and Recovery
Act (``RCRA''), which establishes a cradle-to-grave management system
for handling hazardous wastes. DoD's proposal could preempt State and
EPA authorities, and allow contamination to migrate unchecked, vastly
increasing cleanup costs and threats to public health.
DOD IS ONE OF THE NATION'S BIGGEST POLLUTERS
Contamination and hazardous wastes at DoD installations poses
serious threats to public health and environmental quality. DoD is the
nation's largest polluter at the country's most heavily contaminated
toxic waste sites. In fiscal year 1994:
<bullet> DoD facilities accounted for 81 percent of all Federal
facilities listed under Superfund.
<bullet> DoD had 129 Superfund sites, out of 160 total Federal
Superfund sites.
DOD TOXIC WASTE SITES THREATEN PUBLIC HEALTH AND THE ENVIRONMENT
Contaminated DoD facilities threaten public health.
<bullet> Massachusetts Military Reservation, Cape Cod, MA: The
facility has contaminated the sole source drinking water aquifer for
over 400,000 people. Military installations are located on top of more
than 10 sole source aquifers across the Nation.
<bullet> Hunters Point Naval Shipyard, San Francisco, CA: An
underground hazardous waste landfill caught fire at the shipyard. The
Navy failed to notify local residents for weeks after the fire started.
People complained of headaches, lesions, nausea, asthma and other
illnesses.
<bullet> Starmet Corp., Concord, MA: Depleted uranium (``DU'')
ammunition contaminated groundwater with uranium at levels more than
3,000 times above Safe Drinking Water Act standards. DU is in soil more
than a mile from the production facility, at levels 16 times greater
than background.
DOD'S PROPOSAL COULD WEAKEN SUPERFUND'S PROTECTIONS
DoD's proposal could weaken the authority of EPA, states and
citizens to protect communities from toxic waste. DoD's proposal could
shift most contaminated sites into the Supefund program where DoD--not
EPA or states--largely has authority to issue cleanup orders and
conduct oversight authority of its own cleanups. Section 2019(b) of
DoD's proposal would exempt ``explosives, unexploded ordinance,
munitions, monition fragments, or constituents thereof'' that are on a
range from the definition of ``release.'' DoD's proposal could:
<bullet> Eliminate EPA authority under Section 104 to clean up a
release or respond to a substantial threat of a release of hazardous
substances on ranges.
<bullet> Weaken EPA and State authority to clean up contamination
that migrates off of ranges and control the source of contamination on
ranges.
<bullet> Stop states and Federal agencies from collecting natural
resources damages from DoD when its contamination injures sensitive
public resources, including wildlife, fisheries, and recreational
areas.
<bullet> Remove authority to clean up certain chemicals under
Superfund, since this law uses RCRA's definition of ``hazardous waste''
to define ``hazardous substances'' under Superfund. However, DoD's
proposal excludes certain chemicals from RCRA's definition.
DOD IS A MAJOR VIOLATOR OF RCRA'S REQUIREMENTS
In fiscal year 1997 and fiscal year 1998, DoD was cited for 403
violations of RCRA, nearly three times more violations than the next
most cited Federal agency.
<bullet> In fiscal year 1997, DoD accounted for 75 percent of all
RCRA enforcement actions against Federal facilities.
<bullet> In fiscal year 1998, DoD accounted for 66 percent of all
RCRA enforcement actions against Federal facilities.
<bullet> In 1994, EPA cited Fort Richardson, in Alaska, for 12
violations of RCRA, including illegal storage of hazardous waste;
failure to make hazardous waste determinations; inadequate closure,
contingency and waste analysis plans; and failure to obtain physical
and chemical analysis.
DOD'S PROPOSAL COULD WEAKEN RCRA'S ABILITY TO PROTECT PUBLIC HEALTH
DoD's proposal could largely exempt the department from RCRA's most
effective provisions for protecting public health. It could take away
the most effective too that EPA, states, and citizens have for
enforcing laws that protect communities from hazardous waste. Section
2019(a) of DoD's proposal would exempt ``explosives, unexploded
ordinance, munitions, monition fragments, or constituents thereof''
from the definition of ``solid waste'' under numerous circumstances.
RCRA uses ``solid waste'' to define ``hazardous wastes'' regulated
under RCRA's Subtitle C. DoD's proposal could:
<bullet> Weaken protections against more than 20 dangerous
chemicals that are linked to cancer, birth defects, and damage to the
heart, liver, and kidneys.
<bullet> Exempt private businesses and DoD facilities that conduct
``research, development, testing, and evaluation of military munitions,
weapons, or weapon systems'' from RCRA's regulations.
<bullet> Undermine EPA's authority to order DoD to clean up
contamination that ``may present an imminent and substantial
endangerment'' to human health or the environment.
<bullet> Eviscerate the ability of citizens and states to force DoD
to clean up contamination that ``may present an imminent and
substantial endangerment'' to human health or the environment.
<bullet> Preempt State authority to increase protections beyond
RCRA's minimum Federal standards.
<bullet> Preempt State and EPA authority at cleanup contamination
at military ranges (active, inactive, closed, and transferred) and at
sites other than military ranges.
<bullet> Preclude RCRA cleanups of onsite and offsite contamination
if DoD merely claimed to be ``addressing'' the threats under Superfund,
which could include studying the contamination without undertaking any
cleanup activities.
STATE AND FEDERAL ENVIRONMENTAL OFFICIALS OPPOSE DOD'S PROPOSAL
The Environmental Council of the States (comprised of State
environmental Commissioners, Directors, and Secretaries), National
Governors' Association, National Association of Attorneys General,
National Conference of State Legislatures, and the Association of State
and Territorial Solid Waste Management Officials all oppose DoD's
current proposal.
superfund and rcra already give dod case-by-case exemptions from laws
Superfund and RCRA both have provisions that allow DoD to be exempt
from these laws.
<bullet> Superfund Section 120 allows the President to exempt DoD
from Superfund ``as may be necessary to protect the national security
interests of the United States.'' The President must notify Congress of
exemptions and include the reasons for the exemptions.
<bullet> RCRA Section 6961 allows the President to exempt DoD from
RCRA for 1 year if he determines ``it to be in the paramount interest
of the United States.'' The President can grant additional exemptions
and must inform Congress of all exemptions and his reasons for granting
them.
______
Responses of Jamie Rapport Clark to Additional Questions from
Senator Smith
Question 1. You testified that ``in listening to the four gentlemen
in the previous panel [1] have come to realize that what they have
proposed isn't going to solve their problem . . . most of the examples
that they gave would not he resolved by their proposal.'' Please
explain your thoughts in this regard, given that the four-star officers
you refer to continue to maintain that their problems would be solved
by the RRPI.
Response. Most of the examples of difficulties complying with the
ESA cited by the Defense Department (e.g., Fort Hood, Fort Bragg) are
on installations that do not have any designated critical habitat.
Other ESA provisions, such as the take prohibition, have conic into
play. Thus, the RRPI, which applies solely to the critical habitat
provision of the ESA, would not solve most of the problems about which
DOD complains.
My discussion of other ESA provisions should not be interpreted at
a suggestion that nationwide exemptions from these provisions should be
considered. Such exemptions would, like the proposed critical habitat
exemption, simply eliminate DOD's incentive to devise creative
solutions working in tandem with experts at the environmental agencies
and with the public. As 1 stated in my testimony, Congress should
encourage DOD to work with other agencies and the public to solve
readiness and environmental challenges at the local level, taking into
account local conditions, taking advantage of local wisdom and using
existing provisions of environmental laws.
Question 2. You have suggested that early consultations between DoD
and the EWS would address the concerns raised by DoD as far as the
Endangered Species Act is concerned. However, the DoD disagrees
because, among other reasons, such consultations would in no way
address the problem presented by later-raised cults from private
organizations. If you disagree with this analysis, please explain
exactly why you disagree with the President and the Secretary of
Defense on this issue.
Response. Early consultation between the DoD and the FWS through
its management plans have already successfully addressed concerns
raised by the DoD in regard to the. ESA and, hi each case, The
resolution negotiated by the agencies has not been challenged by
private organizations. Camp Lejeune in North Carolina and the red-
cockaded woodpecker, and Mokapu Peninsula on the Marine Corps Base
Hawaii and endangered waterbirds are two examples of where the DoD and
FWS worked together early to prevent problems with regard to endangered
species. And at the Marine Corps Air Station Miramar. California, in an
effort to protect the station's ten endangered species, the 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 plait's effectiveness. According to DOD,
in so doing, 11the plan made military readiness activities and
endangered species protection mutually compatible.''
Question 3. In your written testimony you state your view that the
issue at hand is a dichotomy; e.g., either the Defense Department will
``continue to build on its long record of wildlife conservation and
respect for environmental laws and protections'', or it will ``take on
a new role as an unregulated despoiler of our environment''. In light
of the compelling evidence presented in the first panel for the need
for clarifications to existing law do you still believe upon reflection
that of the Congress enacts these clarifications the result will mean
America's military will, necessarily, become an unregulated despoiler
of our environment?
Response. These exemptions (not ``clarifications'') could very well
lead to this result. DOD manages approximately 25 million acres of
land. These lands are home to at least 300 federally listed species.
Providing nationwide exemptions to DoD would simply eliminate DOD's
incentive to devise creative solutions working together with experts at
the environmental agencies and with the public, to the detriment of
listed species.
Question 4. Given the very modest nature of the clarifications the
Administration is requesting, and the fact that no State has ever
initiated enforcement litigation (to my knowledge) regarding an
operational range, please explain why you characterize these requests
for clarifications of certain laws as ``an attack on environmental
laws.''
Response. The proposed exemption to the Endangered Species Act
would be precedent setting and would not he ``modest.'' In time, other
agencies or industries could also request similar exemptions. Sections
7(a)(l), 7(a)(2), 7(j) and 4(b) of the ESA already provide
opportunities for the FWS and DoD to work together to protect
Endangered Species and achieve military readiness objectives. Thus,
providing this dangerous, precedent setting exemption is unwarranted.
States do not enforce the ESA, so there is no relevance to the fact
that states have not initiated enforcement litigation regarding an
operational range. The two Federal wildlife, agencies, on the other
hand, have worked to achieve ESA compliance on operational training
ranges.
Question 5. In your testimony, you consistently refer to the
clarifications contained in the Readiness and Range Preservation
Initiative as ``exemptions''. Isn't it true that neither the word
``exemption'' nor ``exempt'' is contained in the RRPI? Furthermore,
isn't it also true that the RRPI is merely clarifying certain
definitions, such as ``critical habitat'' under the ESA, or ``solid
waste'' under CERCLA?
Response. The only feature of the RRPI to be enacted into law was
the Migratory Bird Treaty Act provision, which was characterized in the
Defense Authorization Act as an ``exemption.'' With regard to the ESA,
the Defense Department's request is to effectively exempt DOD from any
obligation to comply with the critical habitat provisions of the ESA if
certain minimal steps are taken.
Question 6. You referred to the recent GAO report. isn't it true
that this report was completed save only for the inclusion of the
Department's remarks, prior to the release of the RRP1 and therefore,
did not address it specifically? Isn't it also true that the GAO report
reaches the unequivocal conclusion that our ``military services have
lost training range capabilities and can he expected to experience
increased losses in the future absent efforts to mitigate
encroachment''?
Response. Although the GAO report does not address the RRPI
specifically, it addresses the environmental compliance issues raised
by the RRPI and concludes that DOD has not met its burden of proving
that this is a significant hindrance to training. The GAO'S conclusion
that ``military services have lost training range capabilities and can
he expected to experience increased losses in the future absent efforts
to mitigate encroachment'' does not specify environmental laws as the
encroachment issue. Encroachment is caused by many factors. Weakening
environmental laws will not solve the encroachment problem.
Question 7. You testified that ``the Defense Department has
provided no evidence that environmental laws are at fault for any of
the gaps in the readiness that may exist today. Yet minutes before you
gave this testimony, for example, you heard General Keane testify that
the Army's fighting readiness has been impeded by environmental laws
which require at Ft. Bragg a 200-foot buffer around every tree where a
migratory bird might nest, no bivouacking or occupation of the nearby
area for more than 2 hours, no use of camouflage, no weapons firing
other than 762 and 50 caliber blank ammunition, no use of generators,
no use of riot agents, no use of smoke grenades, and no digging. He
testified that the impact of that is profound. Since you heard that
testimony and then testified yourself that the Department has provided
``no evidence,'' I must ask if it is your contention that General Keane
was misleading by this testimony? If so, please state with as much
particularity as you are able, all facts that support such a
contention.
Response. I am not aware of any law that requires the Army from
placing a 200-foot buffer around every tree where a migratory bird
might nest. Perhaps General Keane was referring to the limitations on
activities around the nests of the endangered red-cockaded woodpecker.
These ``work arounds'' were negotiated between DOD and FWS, and have
repeatedly been characterized by DOD as a success story that has
allowed DOD to train effectively while conserving wildlife.
In fact, the United States Army Environmental Center, Environmental
Update, Training Lands Management, by Mike Cast, in Winter 2000,
reported the following: ``As a result of these practices and protection
from development, FORSCOM installations such as Fort Bragg, NC and Fort
Stewart, GA, harbor old-age stands of longleaf pine and provide some of
the best habitat available for federally listed species such as the
red-cockaded woodpecker, which builds its nesting cavities in this
species of pine. Training can he conducted in well maintained red-
cockaded woodpecker habitat, and that does enhance training.''
Question 8. You testified that ``the Defense Department has
provided no evidence that environmental laws are at fault for any of
the gaps in the readiness that may exist today''. Yet minutes before
you gave this testimony, for example, General Williams testified that
``the Marine Corps wanted to try to quantify the impact of
environmental constraints on readiness We took a unit in . . . the
amphibious assault, ,from. ship to ship and then movement beyond the
beach, and we listed all the mission essential tasks that that unit is
supposed to be able to perform in order to he fully trained . . . we
just looked at non-firing tasks. And about 60 to 70 percent of those
tasks, we can't perform at Camp Pendleton. Since you heard that
testimony and then testified yourself that the Department has provided
``no evidence'', I must ask if it is your contention that General
Williams was misleading by this testimony. If so, please state with as
much particularity as you are able, all facts that support such a
contention.
Further research is needed on the meaning of General Williams'
statement that ``68 to 70 percent of certain non-firing tasks could not
be performed.'' My understanding is that certain activities concerning
toxic pollution are prohibited (e.g., disposal of oil), but that
activities in and around wildlife habitat are allowed, subject to
reasonable restrictions on time, place and manner. As stated in the
Range and Training Regulations Environmental Operations Map for Camp
Pendleton, dated September 2001, ``It is essential to consider
environmental concerns while planning training operations and
exercises. Proper planning will preserve all training facilities for
future generations of Marines; therefore it is essential that training
units adhere to the [environmental protection] provisions of this
Chapter.''
Question 9. Attached to your written testimony is a document which
states that the ``National Governor's Association, National Association
of Attorneys General, National Conference of State Legislatures'' among
others, ``all oppose the DoD's current proposal''. Is it your
contention that this is a truthful statement? If so, please provide
copies of the resolution of each of these organizations expressing
their formal position on the RRPL.
Response. Attached to this document are letters and resolutions
from the organizations stating opposition to the DoD's proposal.
Question 10. Isn't it true that the purpose of the 1918 Migratory
Bird Treaty Act was to stop the intentional hunting of migratory birds
for commercial reasons such as feathers for ladies. hats? The recent DC
District Court case held that the MBTA as written prohibits both
intentional and unintentional harm to migratory birds. Isn't this a
perversion of congressional intent? Wouldn't the RRPI merely restore
the original intent of the Act?
Response. The Migratory Bird Treaty Act protects migratory birds
from a variety of threats, including but nor limited to hunting. Under
the Act, it is illegal, unless permitted by regulations, to ``pursue,
hunt, take, capture, kill, attempt to take, capture or kill, possess,
offer for sale, sell, offer to purchase, purchase, deliver for
shipment, ship, cause to he shipped, deliver for transportation,
transport, cause to be transported, carry, or cause to be carried by
any means whatever, receive for shipment, transportation or carriage,
or export, at any time, or in any manner, any migratory bird, included
in the terms of this Convention . . . for the protection of migratory
birds . . . or any part, nest, or egg of any such bird.'' (16 U.S.C.
703).
______
ATTACHMENTS
The Environmental Council of The States,
Washington, DC, May 1, 2002.
Hon. Bob Stump, Chairman,
House Armed Services Committee,
U.S. House Committee on Armed Services,
Washington, DC.
Dear Chairman Stump: Today your committee is scheduled to work on
H.R. 4546 Department of Defense (DOD) authorizing language pertaining
to factors that may impact DOD's military readiness. This letter is to
express the concerns of the States regarding possible changes to
environmental laws.
The Environmental Council of the States (ECOS) is a non-profit,
non-partisan organization comprised of State environmental
Commissioners, Directors, and Secretaries throughout the country. This
group represents the leadership of State and territorial environmental
programs and is responsible for making certain our nation's air, water,
and environment are clean, safe, and protected.
At a recent ECOS meeting, Department of Defense Principal
Undersecretary of Environment and Installations, Mr. Philip Grone, and
other DOD personnel, presented proposed legislative language entitled
``Readiness and Range Preservation Initiative'' which had been
presented in the Subcommittee on Military Readiness. Our member states
had a lively discussion on this legislation.
ECOS members strongly support military readiness, adequate
training, and preparation for military personnel. Our members recognize
that military readiness requires the Department of Defense (DOD) to
train armed forces under realistic conditions, including field testing
and evaluating weapons systems and other military equipment. We further
recognize that ``external'' factors such as urban and suburban sprawl
and increasing wildlife habitat pressures have affected DOD's training
and equipment testing and evaluation activities. In addition, there
have been isolated cases where environmental regulation requirements
may have affected military operations. However, we also note that there
are military activities with recognized environmental impacts. The
issue raised by this proposed legislation is how to appropriately
balance DOD's necessary training and readiness activities with ensuring
protection of human health and the environment and avoiding a legacy of
environmental problems. It is a proper and timely subject for
discussion and development of public policy.
States have the challenging job of front-line implementation of our
nation's environmental pollution laws. States have a long history of
working cooperatively with DOD to resolve competing needs. Further,
existing laws provide flexibility to accommodate DOD's current ``short-
terms'' concerns about regulatory impacts to military training and
readiness activities. In particular, ECOS membership is concerned with
the earlier version containing proposed changes to the Resource
Conservation and Recovery Act; the Comprehensive Environmental
Response, Compensation, and Liability Act; and the Clean Air Act.
Although the Readiness Subcommittee has removed sections pertaining to
these laws and the version before your committee contains legislation
addressing other laws, these three are at the core of ECOS member
agencies' missions. All three laws already have provisions for the
President or Secretary of Defense to exempt DOD from its statutory and
regulatory requirements upon a finding that it is necessary for
national security or in the interests of the United States. These three
laws also contain other provisions providing for flexibility.
In the short time that states have had to evaluate the legislation,
serious questions have been raised about the changes to the Resource
Conservation and Recovery Act and the Comprehensive Environmental
Response, Compensation, and Liability Act, both of which relate to
active and closed DOD facilities. At our meeting, DOD representatives
were unable to offer examples of problems with State regulators that
would support the need for the proposed changes. In fact, the concern
appeared to be more directed toward private citizens' suits brought
under Federal law. ECOS is particularly concerned about unintended
consequences that may occur by changing the definition of solid waste
and the associated impacts to the authorities states use to provide
consistent application of federally delegated environmental programs
and State laws.
Changes proposed by the Readiness and Range Preservation Initiative
to the Clean Air Act are also problematic. Congress directed the
Federal Government to comply with Federal, State, and local
requirements for control and abatement of air pollution to the same
extent that any person is subject to such requirements. States have
relied upon that requirement in crafting the mandated air quality plans
for complying with national air standards. The proposed changes will
force States into a difficult position of meeting national air
standards with all other participants--industry, local infrastructure,
State and Federal agencies--while temporarily exempting DOD.
ECOS believes that changes to environmental laws should be
carefully considered, including holding hearings in the committees with
jurisdiction over these regulations. While DOD has stated that this
legislation is narrow in scope and is intended to address issues that
apply only to operational combat ranges necessary for military
readiness, ECOS members' initial analysis is this legislation is overly
broad and may go beyond its stated intent. If the initial proposed
changes to RCRA, CERCLA and CAA were to move forward in legislation it
may actually undermine the very real progress DOD has made in complying
with environmental regulations and stewardship with little improved
support of military readiness. We are also concerned with this Federal
action encouraging local bases to seek further exemptions to State laws
through State legislation, the first example of which has just been
introduced in Alaska.
ECOS appreciates that the pressures of urban and suburban sprawl
and increasing demands for wildlife habitat are impacting DOD's
readiness ability. ECOS is supportive of establishing buffer zones and
other conservation easement mechanisms to solve this problem. Indeed,
ECOS is encouraged to see this type of language in the Readiness and
Range Preservation Initiative and supports the Subcommittee's effort to
create tools for States and DOD to tackle this difficult issue.
In closing, while we are very supportive of our military's efforts
and recognize the need to train and maintain military readiness, we do
not believe DOD has made a convincing case for the proposed changes to
RCRA, CERCLA, and CAA. ECOS is willing to immediately begin work with
DOD to solve the concerns and issues they have raised regarding these
environmental laws, but we remain concerned with the authorizing
language before you.
Today, States conduct over 75 percent of all the environmental
inspections, collect nearly 95 percent of environmental monitoring
data, and are responsible for all State lands and resources. Therefore,
ECOS asks that Congress discuss any proposed changes to environmental
laws with full participation by interested parties to examine the
merits, impacts, and accommodations that should accompany such
fundamental changes. ECOS encourages Congress to have this discussion
in the committees with jurisdiction over the relevant environmental
laws as well as the Armed Services Committee. ECOS stands ready to work
with these committees and DOD to ensure development of sustainable
range management strategies and jointly work out the necessary long-
term solutions to ensure that our military has adequate training
ranges.
Sincerely,
Michele Brown,
ECOS-DOD Forum Co-chair,
Commissioner, Alaska Department of Environmental Conservation.
Ron Hammerachmidt,
ECOS President,
Director, Kansas Department of Health and Environment.
______
National Association of Attorneys General,
Washington, DC, April 1, 2002.
Hon. Joel Hefley, Chairman,
U.S. House of Representatives,
Committee on Armed Services,
Subcommittee on Military Readiness,
Washington, DC.
Dear Chairman Hefley: I want to express my appreciation for your
consideration in keeping the record open for your March 14, 2002
Subcommittee on Military Readiness hearing until Friday, April 5, 2002.
Due to the short timeframe for submitting these comments, we have not
been able to compile comprehensive comments from all of the states. We
are aware of the Committee's continuing interest in this subject, and
will provide you additional relevant information as it becomes
available.
We believe strongly, as the primary implementers of the nation's
pollution control laws, that in any forum involving Department of
Defense exemptions to environmental laws the State perspectives should
clearly be on the record. In that regard, I have attached several items
to be added to the record of that hearing in order to preserve the
state's point of view. First, please find a statement from Colorado
Attorney General Ken Salazar. In addition, please add to the record the
following Attorneys General sign-on letters describing some of the
relevant concerns of State Attorneys General:
(1) June 6, 2001 letter signed by 30 State Attorneys General to the
Senate Committee on Armed Services, House Committee on Armed Services,
Senate Environment and Public Works Committee and the House Committee
on Energy and Commerce Re: Encroachment--Federal Facilities, and
(2) May 18, 2000 letter signed by 21 State Attorneys General to
Jacob J. Lew, Director, Office of Management and Budget regarding ``the
range rule'' for unexploded ordnance, and
(3) July 12, 1995 letter signed by 37 State Attorneys General and
11 Governors to President Clinton regarding the cleanup of Federal
facilities including their key principles and reform proposals attached
thereto.
Thank you again for the courtesy of keeping the record open to
submit this information. If you have any questions or concerns, please
feel free to contact Blair Tinkle, our Legislative Director, at 202-
326-6258.
Sincerely,
Lynn M. Ross.
______
State of Colorado Department of Law Office of the Attorney
General,
Denver, CO, April 1, 2002.
Hon. Joel Hefley, Chairman,
U.S. House of Representatives,
Committee on Armed Services,
Subcommittee on Military Readiness,
Washington, DC.
Dear Chairman Hefley: Thank you for the opportunity to submit
written testimony regarding the impact of environmental regulation on
military readiness. Enclosed are several pieces of correspondence that
the National Association of Attorneys General has sent over the years.
This correspondence is indicative of the states' concerns with Federal
agencies'--and more specifically, the Department of Defense's--
compliance with State and Federal environmental laws. In addition to
this correspondence, we would like the Committee to consider the
following observations.
First, we absolutely support maintaining our Nation's military
preparedness. We recognize that maintaining military readiness requires
that the armed forces receive regular realistic training, and that the
military be able to test and evaluate weapons systems and other
military equipment under realistic conditions. We also recognize that
``external'' factors such as urban and suburban sprawl, have impacted
the Department of Defense's training, testing and evaluation
activities. And we are aware of isolated cases where requirements
imposed under the pollution control laws may have affected military
operations. At the same time, we are concerned that DOD's training,
testing and evaluation activities obviously do have environmental
impacts. The question is how to conduct these activities in a manner
that maintains readiness while ensuring protection of human health and
the environment.
The states are the primary implementers of the nation's pollution
control laws. We think that the existing framework of these laws is
sufficiently flexible to provide for balancing of environmental and
readiness concerns. There is a great deal of flexibility built in to
the different regulatory programs, as the Department's own testimony
has demonstrated. As we understand the Department's testimony, it is
concerned about the cumulative impact of environmental, health and
safety restrictions on military readiness, and fears that these impacts
will increase. However, the environmental laws already allow either the
President or the Secretary of Defense to exempt the Department of
Defense from their statutory and regulatory requirements on a case by
case basis. 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. Such
exemptions exist under the Clean Air Act, Clean Water Act, Resource
Conservation and Recovery Act (RCRA), Comprehensive Environmental
Response, Compensation and Liability Act, and Safe Drinking Water Act.
We understand that to date, these exemption provisions have only been
invoked twice, and neither instance involved military training
activities.
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 became final. Congress passed a
similar amendment to the Safe Drinking Water Act. And Congress has
already spoken to the balance between environmental protection and
management of waste military munitions. In 1992, Congress rejected a
bill that would have authorized the Secretary of Defense to promulgate
regulations governing the safe development, handling, use,
transportation, and disposal of military munitions. Instead, it
directed the Environmental Protection Agency to consult with the
Secretary of Defense prior to issuing regulations that define when
military munitions become wastes for purposes of RCRA.
Finally, in 1997, Congress 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.'' During the
suspension, the Secretary and the head of the other Federal agency must
consult attempt to mitigate or eliminate the adverse impact of the
proposed action on readiness, consistent with the purpose of the
proposed action.
We understand that the Department plans to propose legislative
changes to the environmental laws. We believe that any such changes
should be considered very carefully. The history of Federal facility
compliance with environmental laws demonstrates that statutory
constructs that rely on voluntary efforts by Federal agencies to
achieve environmental objectives simply do not work. Even when Congress
has clearly stated its intent that Federal agencies be subject to State
and Federal environmental laws, the Federal agencies have frequently
resisted efforts to require them to comply. 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 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.
Even when Congress has plainly required Federal agencies to comply
with State and Federal environmental laws, the Federal agencies have
worse compliance records than private industry. The sole exception is
under RCRA. In 1992, the Supreme Court held that Federal agencies were
not subject to penalties for violating State hazardous waste and water
quality laws. That same year, Congress amended RCRA to make Federal
agencies subject to penalties for violating hazardous waste laws. Since
1992, DOD and other Federal agencies have steadily improved their RCRA
compliance rates, to the point where they now have a higher compliance
rate than private industry.
This salutary trend stands in stark contrast to Federal agency
performance under the Clean Water Act. Unlike RCRA, Congress has not
amended the Clean Water Act to subject Federal agencies to penalties
for violating Clean Water Act requirements. The percentage of DOD
facilities in significant non-compliance with the Clean Water Act has
steadily risen over time. Similarly, DOD has long had a higher rate of
significant noncompliance with Clean Water Act requirements than
private industry, or even civilian Federal agencies.
Thus, we are concerned that providing the Department of Defense
statutory exemptions from environmental laws will have adverse impacts
on human health and the environment. But such exemptions will have
other undesirable impacts as well, substantially increased costs to
``remedy'' environmental contamination, and greater constraints on use
of training ranges. As we stated in our May 31, 2001 letter regarding
encroachment, prevention is by far the most effective and least costly
means of ensuring environmental protection. It also is a necessary
component of sustainable range management. The Department, and the
Nation, cannot afford to repeat the experience at the Massachusetts
Military Reservation (MMR) at other ranges around the country. There,
decades of military training activities have contaminated over 60
billion gallons of groundwater in the sole source aquifer for Cape Cod.
This contamination led EPA to suspend most live-fire military training
at the MMR artillery range pursuant to its Safe Drinking Water Act
authority. Subsequently, the State of Massachusetts and the Army
reached an agreement, now embodied in State law, that balances military
training needs and environmental protection. The plain lesson here is
that ignoring environmental consequences of military training benefits
neither the environment, public health, nor military training.
In conclusion, resolving the increasing pressures on military
training activities in a manner that protects human health and the
environment, while ensuring military readiness, demands creative
thinking. The issues involved are many and complex. They would benefit
from an open discussion among a full range of affected parties. The
states, as the primary implementers of the nation's environmental laws,
must play a key role in arriving at any solutions. We thank the
Committee for this opportunity to express our views.
Ken Salazar,
Attorney General of Colorado,
NAAG Chair, Environment Committee.
______
Association of State Territorial Solid Waste Managment
Officials (ASTSWMO),
Washington, DC, April 16, 2002.
Hon. W.J. ``Billy'' Tauzin, Chairman,
Hon. John D. Dingell, Ranking Minority Member,
Committee on Energy and Commerce,
Washington, DC.
Dear Messrs.: It is our understanding that there is an emerging
Department of Defense proposal for modification of a number of basic
environmental studies designed to provide relief from certain
requirements in order to facilitate military training. The purpose of
this letter is to request the assistance of the leadership of the House
Energy and Commerce Committee in ensuring that there is a thorough
review of this proposal by each Congressional committee with
jurisdiction over these environmental statutes. By a thorough review we
mean legislative hearings with opportunity for testimony by
knowledgeable expert witnesses representing all sides of the debate,
who can assist the Congress in assessing the trade-offs and costs of
the proposal.
The Association of State and Territorial Solid Waste Management
Officials (ASTSWMO) is a non-profit, non-partisan organization made up
of State employees who are responsible for the hazardous waste, solid
waste, cleanup and remediation, and underground storage tanks programs
of the State and Territories of the U.S. Our members generally have
engineering and science backgrounds, and implement both delegated
federal wastes and cleanup programs, as well as parallel State
programs. They have hundreds of years of collective experience in
expert program implementation and believe it is their obligation to
share their professional views with members of Congress with the
responsibility for decisions affecting our national environmental
statutory framework.
We have examined an early draft of the ``Sustainable Defense
Readiness and Environmental Protection Act'' (SDREPA) that we
understand to be under development by DoD. Insofar as it addresses the
hazardous waste regulatory and cleanup implications of the Resource
Conservation Recovery Act/Solid Waste Disposal Act and the
Comprehensive Environmental Response, Compensation, and Liability Act,
we have substantial concerns with the current wording. Understanding
the motivation of the drafters to seek greater flexibility for military
training, we believe that it provides insufficient protection for
citizens and the environment following implementation of these
requested relief provisions. Our central point is that fundamental
changes like these should not be made with a legislative vehicle
developed by and for defense authorizations or appropriations.
We view this proposal from the historical perspective that past
military operations have left a legacy of contamination that will take
billions of dollars and several decades to deal with. Consequently, we
are very reluctant to amend sound environmental statutes in ways that
could open the door to new releases to the environment. In the past DoD
has continually maintained that it has seen compliance and protection
of natural resources as part of its national security mission, but it
is difficult to reconcile these kinds of fundamental and far reaching
changes to environmental statutes with those representations. Our
experience is that delaying cleanup and compliance with hazardous waste
laws only increases the eventual cost and difficulty of cleanups. We
took DoD's promise of its intent to become a model of environmental
compliance seriously, and we think that any changes made to enhance
military readiness must be accomplished without damages to that goal.
Statutory change that will affect environmental impacts on
populations and the environment should be made in the same
environmental arena where those statutes were created and debated. For
that reason, we urge you to exercise your jurisdiction over these
proposed modifications, conduct hearings, take diverse testimony, and
make the final judgments about the efficacy of these changes with full
input, debate and understanding of their long-term effects on the
country. Like all good citizens, we too want to see military training
enhanced and improved, and we are willing to subject our analysis and
suggested adjustments to the full range of public dialogue. We believe
the potential consequences of this legislation are of such significance
that all parties should be willing to undergo this same scrutiny.
We are confident that with full analysis and debates, appropriate
modifications can be found and made to allow attainment of maximum
force readiness without long-term cost to the nation's environment and
the safety of its citizens. We trust that you will seek such a course
of legislative balance as this DoD proposal is eventually introduced in
the Congress. Thank you for considering this request and for your
continued interest in our national environment.
Sincerely,
Mark P. Giesfeldt,
ASTSWMO President.
______
National Conference of State Legislatures
Environment and Energy and Transportation
Federal Facilities Cleanup
Federal and State governments are together faced with managing
large quantities of hazardous, radioactive, and mixed (a combination of
hazardous and radioactive materials) waste and materials that are
located at numerous Federal facilities throughout the United States.
Some of these wastes and materials have been improperly handled over
the years, necessitating both waste management and environmental
restoration at these facilities. These facilities were crucial to the
nation's production of nuclear weapons and overall defense strategy,
and now are in need of a plan for conscientious and thorough
environmental reclamation. These facilities, which belong to the U.S.
Department of Energy and the U.S. Department of Defense, each have
specific environmental needs that must be addressed.
Radioactive and hazardous wastes have been generated since 1942 by
the development, production, and maintenance of uranium, plutonium, and
nuclear warheads by the Department of Energy's network of nuclear
weapons production facilities, including its national research labs.
Substantial amounts continue to be generated, even as the environmental
restoration effort progresses. This includes transuranic waste (TRU),
which the Department of Energy ultimately plans to dispose of at the
Waste Isolation Pilot Project (WIPP) near Carlsbad, New Mexico, as well
as the high-level radioactive waste generated by the production of
nuclear weapons. This high-level waste will be disposed of in the same
repository that the Department of Energy will operate for the disposal
of spent fuel from commercial nuclear power plants. Significant amounts
of low-level radioactive waste and mixed wastes were also generated
from nuclear weapons production, as well as general maintenance
activities, at military bases. This waste now requires disposal.
Some wastes are currently in inadequate interim storage facilities
and pose potentially serious long-term threats to public health and the
environment. There are also safety and equity concerns surrounding
transportation and ultimate disposal of waste. The states insist that
the cleanup and disposal programs advance in an expeditious manner.
Other Federal facilities that have generated waste and may remain
unsafe for humans include military bases and formerly used defense
sites operated by the Department of Defense. States are also committed
to the cleanup and conversion of closed military bases to other
beneficial uses as soon as possible. NCSL encourages the Department of
Defense to lessen the impacts of closing these facilities by entering
into partnerships with business and other private interests in order to
turn them into sites of commerce and development.
In 1992, Congress enacted the Federal Facilities Compliance Act
which waived the doctrine of sovereign immunity and allowed partial
State environmental regulation at Federal facilities. NCSL firmly
supports this principle. Furthermore, NCSL believes that:
<bullet> The Federal Government should be responsible for the
cleanup of Federal facilities. There should be coordination among the
Department of Energy, Department of Defense, and the U.S. Environmental
Protection Agency with State regulatory agencies to insure that the
cleanup of these facilities is properly and efficiently managed.
<bullet> The Federal Government should be subject to all State laws
governing the cleanup of hazardous and radioactive waste materials.
<bullet> Department of Energy facility sites should continue to be
incorporated into the National Priority List according to the severity
of the risk they pose, but cleanup should be independent of Superfund
moneys.
<bullet> The Department of Energy should continue to use the
contract review process to provide effective oversight and for
evaluating integrated contracts for cost accountability.
<bullet> Congress should provide for sufficient long-term funding
for the effective and timely cleanup and disposal of existing and
future wastes. Cost-effective solutions must be developed and
implemented by Federal agencies to meet cleanup standards that protect
human health and the environment. Congress must fund and Federal
agencies must implement an aggressive research and development program
to develop and to put into place the technology necessary to address
the cleanup situation at all Federal facilities.
<bullet> Cleanup work must be accomplished in strict compliance
with Federal facility agreements, Federal laws and regulations.
Congress should give State and Federal regulators complete enforcement
authority necessary to ensure such compliance. For those sites that do
not require extensive cleanup, a future use and owner should be
identified as quickly as possible in order to return the affected land
to productive use.
<bullet> States and Indian tribes must have a continuing,
substantive role in the planning and oversight activities of the waste-
management effort. The Department of Energy must recognize that
cultural resources and artifacts may be present on DOE sites, and
should partner with affected Indian tribes to identify and mitigate
impacts to those resources. The general public must also be involved in
the decisionmaking process.
<bullet> Whenever possible, pollution prevention practices should
be followed and recovered materials should be recycled or reused.
<bullet> As it will be necessary for waste to be transported across
state-lines to waste storage and disposal facilities, all
transportation must be done in compliance with State and Federal safety
procedures for the shipping of hazardous, radioactive, and mixed
wastes. States must play an integral role in evaluating the safety of a
particular method of transportation and must be continually informed
about the status waste movement and storage.
U.S. DEPARTMENT OF ENERGY
Furthermore, NCSL recognizes the work of the Department of Energy's
Office of Environment Management in developing Accelerating Cleanup:
Focus of 2006, a comprehensive, strategic plan to characterize and
prioritize the long-term cleanup and management of wastes at all
Department of Energy facilities. NCSL urges the continued
implementation of the plan, and supports the following:
<bullet> A firm commitment to a cleanup schedule, including
aggressive but realistic milestones for all activities. Action should
be taken to manage Federal radioactive, hazardous, and mixed waste
sites as soon as possible. Studies should be kept to a minimum.
<bullet> Federal cleanup efforts must be conducted in full
consultation with the affected States and affected Indian tribes.
Cleanup efforts should begin with site-specific plans which can then be
used to develop a national plan for future cleanups.
U.S. DEPARTMENT OF DEFENSE
NCSL will continue to work with the Federal Government in the
development of site-specific cleanup plans. State legislators are
interested in the timely cleanup and conversion of bases to lessen the
financial impact on the State and local community from the closure of a
military facility. The Department of Defense should establish an
aggressive cleanup schedule for military facilities, or develop options
for the transfer of land to new owners who agree to clean up the site
before developing it for future use. The Department of Defense and any
future owners should be subject to all State laws governing the cleanup
of hazardous and radioactive waste materials. All cleanup efforts
should be conducted in full consultation with affected states.
Adopted: August 2001
______
National Governors Association
POLICY POSITION
NR-4. SUPERFUND POLICY
4.1 Preamble
Superfund, the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA), is under debate in Congress. In recent
years, Superfund has come under increasing scrutiny by the U.S.
Environmental Protection Agency (EPA), states, environmental groups,
and the business community. Although these stakeholders often have
widely divergent views about what is right and wrong with Superfund and
how it should be changed, they all share concerns about the efficiency,
effectiveness, and equity of Superfund cleanups. Clearly, a variety of
legislative remedies and regulatory and administrative changes are
needed to improve the program's ability to expeditiously cleanup the
nation's worst hazardous waste sites. Moreover, the taxing authority
used to support the trust fund has expired, lending urgency to the need
to reauthorize the program.
It is imperative that Congress recognize that under the current
system; most cleanup work underway is occurring under State programs.
The 1,300 sites on the National Priority List (NPL) represent only a
fraction of the nation's cleanup sites. Changes to CERCLA will impact
both NPL sites and cleanup work moving forward at the State level.
Therefore, the Governors strongly believe that changes to CERCLA must
not jeopardize the continued effectiveness of State programs. The
Governors look forward to participating in this process and to playing
a major role in the implementation of the national hazardous waste site
cleanup effort.
4.2 Streamlining Remedy Selection
The Governors believe that centralized decisionmaking has
unnecessarily slowed the Superfund program and that the protection of
public health and ecosystems demands quicker response actions. The site
assessment and remedial action programs are particularly cumbersome.
They should be streamlined by focusing Superfund regulations and
guidance more on specifying the desired end results of cleanup actions
and less on the process for determining such results. The Governors
believe the following changes would result in more cost-effective
cleanups, a simpler remedy selection process, and a more results-
oriented approach.
<bullet> Cleanup standards should be developed with consideration
of different types of land uses. When appropriate, feasible, and cost-
effective, these standards should allow unrestricted use of the
remediated site.
<bullet> ``Presumptive'' remedies should be available to narrow
analysis of alternative remedies at sites fitting certain land use,
generic contamination, population, and hydrogeologic conditions.
<bullet> States must be able to apply their own standards at sites
within the State to accommodate specific environmental conditions and
public views. A more streamlined process should be devised for
incorporating these standards into the final remedy.
Risk assessment and cost-benefit analysis can be useful tools in
selecting cleanup remedies under certain conditions. First, these tools
should be used only to select among remedies designed to meet a
specified cleanup standard. Second, the use of risk assessment and
cost-benefit analysis should be based on generally accepted and uniform
procedures and should clearly articulate underlying assumptions and the
impact of alternative assumptions, include public participation, and
acknowledge nonquantifiable benefits and costs. Third, these techniques
should not provide opportunities for preenforcement review.
4.3 State-Federal Role
The impacts of hazardous waste sites are felt primarily at the
State and local levels. Therefore, the State role in the program needs
to be strengthened. States should have a stronger voice in Superfund
decisionmaking, and EPA should be required to authorize or delegate
full or partial management of the remedial and emergency removal
programs to all capable States interested in administering cleanups.
This will accelerate cleanup, avoid duplication of effort, increase
efficiency for government and the private sector, reduce transaction
costs, provide greater certainty in the program, and maximize the
effectiveness of limited State and Federal resources.
EPA's role should be to ensure the proper implementation of the
program throughout the Nation by establishing program requirements for
delegation. EPA's role also should be to provide technical assistance,
to manage part or all of the cleanup program at priority sites in
states choosing not to pursue full authorization or delegation, and to
ensure that adequate funding is available to states for program
implementation. Full authorization or delegation should provide the
maximum flexibility necessary to meet State needs and objectives
without undue or unnecessary Federal oversight. The process for
securing delegation should involve as little administrative burden as
possible. In the case of authorization, which would allow states to
operate their programs in lieu of the Federal program, CERCLA should
establish, through statutory provisions, program criteria for a state-
initiated self-certification process to ensure that the program
adequately protects human health and the environment. EPA should
periodically review State performance, instead of involving itself in
site-by-site oversight.
CERCLA should be amended to allow interested states to develop a
statewide response program for all contaminated sites in the state, and
the administrator of EPA should be required to approve such programs
within a reasonable period or show cause as to why he or she has not
done so. EPA approval should be based on reasonable performance
criteria that are developed with State participation and ensure
outcomes substantially consistent with the goals of the Federal
program. Once this program has been approved, the State should be
permitted to assume full and complete responsibility for management of
the cleanup effort at all sites listed by the State as requiring
cleanup. Such responsibility should include establishing priorities,
undertaking remedial investigations/feasibility studies, selecting
remedies, selecting contractors, and conducting remedial cleanups.
Authorized states should nominate sites for Federal cleanup funds, and
EPA should allocate available funds based on competing national and
regional priorities.
4.4 Liability
The liability scheme employed in any hazardous waste cleanup
program is critical to the success of that program. The current CERCLA
liability scheme serves some purposes well. Its effectiveness at
encouraging better waste management is beyond dispute and it has
provided resources for waste site cleanups. On the other hand, the
Governors believe the current system is flawed in several important
respects. Among others, it too often leads to expensive litigation and
transaction costs.
The current liability scheme is under scrutiny in Congress and the
Governors recognize that the outcome of the debate on Federal liability
will have significant, direct effects on State cleanup programs. The
program must be responsive to the needs of all parties, including the
regulated community, taxpayers, and communities threatened by
pollution. The Governors would like to work constructively with
Congress in revising the current scheme.
Any resulting liability scheme must:
<bullet> ensure that adequate funds are available for cleaning up
waste sites and that no unfunded mandates are created for the states;
<bullet> allocate cleanup costs fairly and equitably among those
responsible for pollution. The liability and transaction costs of small
contributors and municipalities must be addressed;
<bullet> minimize transaction costs to the greatest extent
possible. We must ensure that changes to the existing system do not
create new transaction costs or additional opportunities for extensive
litigation of new or previously well-settled issues that will only
further delay cleanups;
<bullet> encourage pollution prevention and improved waste
management;
<bullet> continue to provide substantial incentives for responsible
parties to negotiate cleanup settlements before government enforcement
action is necessary;
<bullet> complement existing State programs;
<bullet> ensure that sites are cleaned up promptly and efficiently;
and
<bullet> ensure that at non NPL sites, a release of liability under
State cleanup laws protective of human health and the environment
constitutes, by operation of law, a release from Federal liability.
4.5 State Program Grants
The Governors believe that Superfund cleanup will be faster and
more effective if states have adequate capacity to plan and implement
the program. To develop such capacity, the fund should be used to
support grants to states for program development, site identification
and assessment, enforcement, site remediation, oversight, and
administrative expenses at all sites.
4.6 State Match
The Governors believe that there is no justification for requiring
a larger State match for Superfund cleanup at sites that are publicly
operated than for private sites. CERCLA should be amended to provide
that the match required for remedial actions is 10 percent at all
sites, whether or not they are operated by the State or a political
subdivision. There should continue to be no cost share required for
removal actions. The 10 percent State share for sites operated by
states or political subdivisions should be considered a final
settlement of all liability under CERCLA for the State or political
subdivision. The Governors support the continued ability of states to
apply in-kind services toward the State match requirement.
4.7 Operation and Maintenance Expenses
CERCLA should be clarified to provide that the response trust fund
can be used to support operation and maintenance activities during the
period in which they are required. It should be clear that these
expenditures are subject to the same State match requirements as
cleanup actions.
4.8 Natural Resource Damage Claims
The natural resource damage provisions of CERCLA allow Federal,
state, and tribal natural resource trustees to require the restoration
of natural resources injured, lost, or destroyed as the result of a
release of hazardous substances into the environment. The Governors
believe this is an important program that must be maintained. The
Governors urge Congress to strengthen the program by amending the
statute of limitations to run 3 years from completion of a damage
assessment; removing the prohibition on funding natural resource damage
assessments from Superfund; and providing for judicial review of
trustee decisions on the administrative record, subject to the
arbitrary and capricious standard. Further, the Governors urge Congress
to resist efforts to weaken the program by capping liability for
natural resource damages at some level per site or eliminating
compensation for non-use values.
4.9 Federal Facilities
The Governors continue to support legislation that ensures a strong
State role in the oversight of Federal facility cleanups. Federal
facilities and former Federal facilities are among the worst
contaminated sites in the Nation. This condition is a legacy of the
lack of regulatory oversight at these sites for most of their history.
The double standard of separate rules applying to private citizens and
the Federal Government continues to have a detrimental effect on public
confidence in government at all levels. Federal facilities should be
held to the same standard of compliance as other parties.
Because EPA cannot effectively enforce CERCLA, or any other
environmental statute against other Federal agencies, it is critical
that states have clear authority to do so. Therefore, the Governors
urge Congress to include in any CERCLA reauthorization bill provisions
authorizing states to require and oversee response activities at
Federal facilities, including former Federal facilities.
In virtually every other environmental statute, Congress has waived
sovereign immunity and allowed qualified states to enforce State
environmental laws at Federal facilities. Such authority has been
provided in the Clean Water Act, the Clean Air Act, and the Resource
Conservation and Recovery Act. As recently as 1992, when the Federal
Facility Compliance Act was enacted, Congress once again confirmed its
commitment to State enforcement of environmental laws at Federal
facilities. We urge this Congress to ensure that CERCLA also follows
this sound policy.
4.10 Voluntary Cleanups
The Governors believe that voluntary cleanup activities can make a
significant contribution toward the nation's hazardous waste cleanup
goals. A number of states have developed highly successful voluntary
cleanup programs that have enabled sites to be remediated more quickly
and with minimal governmental involvement. CERCLA should be amended to
give credit, in the form of a legal release, to volunteers who have
cleaned a site to protection standards in accordance with a State
voluntary cleanup law protective of human health and the environment.
These changes will encourage voluntary cleanup and thus increase the
number of cleanups completed. In addition, CERCLA should encourage and
provide clear incentives, such as tax exemptions and liability
protections for nonculpable parties, for so-called ``brownfields''
programs at the State level to encourage potentially responsible
parties, and for prospective purchasers to reuse and redevelop these
contaminated properties.
4.11 National Priorities List
The NPL should be used to facilitate the cleanup of contaminated
sites and to protect human health and the environment. Governors should
be given the statutory right to concur with the listing of any new NPL
sites in their states. The Governors are concerned about proposals to
legislatively cap or limit the NPL because of differences in capacities
among states, the complexity and cost of some cleanups, the
availability of responsible parties, enforcement considerations, and
other factors. There must be a continuing Federal commitment to clean
up sites under such circumstances. Emphasis should be on prioritizing
cleanup fund expenditures to provide the greatest human health and
environmental benefits. In the event EPA discovers an imminent and
substantial threat to human health and the environment, it may continue
to use its emergency removal authority, but any assignment of liability
must be consistent with liability assigned under State cleanup laws.
4.12 Remediation Waste
The Governors support the ability of the states to manage
remediation waste under State remedial action plans (RAPs) in lieu of
traditional Resource Conservation and Recovery Act permits and land
disposal treatment requirements. State RAPs should be developed and
administered in accordance with State laws pertaining to public
participation, remedy selection, and State oversight. A streamlined
authorization process should be established through statutory
provisions, identifying program criteria for a state-initiated self-
certification process to ensure that the program adequately protects
human health and the environment. EPA should periodically review State
performance, instead of involving itself in RAP-by-RAP oversight.
Time limited (effective Winter Meeting 2001--Winter Meeting 2003).
Adopted Annual Meeting 1993; revised Annual Meeting 1995 and Winter
Meeting 1997; reaffirmed Winter Meeting 1999 and Winter Meeting 2001.
__________
Statement of Bonner Cohen, Ph.D., Senior Fellow, Lexington Institute
Good afternoon. 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, VA. I want to thank
Chairman Jeffords, Ranking Member Smith, and the other members of this
committee for the opportunity to address a subject bearing directly on
our nation's security.
In recent years, well-intended environmental statutes designed to
do such things as protect endangered species and safeguard migratory
birds have 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
Joint Chiefs of Staff have come here today, because they have 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 three
areas where, through the application of common sense, improvements can
be made.
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. Last year, 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 ultra-quite diesel submarines, 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.
Migratory Bird Treaty Act (MBTA): On March 13, 2002, a Federal
judge, acting on a suit brought by the Center for Biological Diversity,
ruled that the incidental takes of migratory birds during the course of
training activates at Farallon de Medinilla (FDM) are unlawful under
the MBTA without a permit. FDM is a tiny (less than 1/3 square mile),
uninhabited island in the West Pacific. It has been used as a firing
range for naval gunfire and air bombardment since 1976. The ruling has
halted all training exercises on FDM pending the judge's final decision
on whether to enjoin the Navy from carrying out bombing exercises at
the site.
In an area designated as a bombing range, some accidental killing
of migratory birds will take place. Common sense tells us this. Common
sense also tells us that shutting down the remote firing range will
weaken Armed Forces' to train and test for future conflicts.
The implications for military readiness go far beyond the FDM
firing range in the West Pacific. Almost all species of birds
everywhere are migratory, and the FDM case was brought in the DC
Circuit, which has jurisdiction over all Department of Defense
activities. As a result, the recent ruling in the FDM case puts at risk
all US military aviation, military telecommunications, and live-fire
training nationwide and abroad. A far better solution would be to
return to the legal and regulatory status quo as it existed for over 80
years, until the FDM ruling in March.
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.
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 in 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 David Henkin, Staff Attorney, Earthjustice, Honolulu, HI
Regional Office
Aloha, Mr. Chairman and members of the committee. My name is David
Henkin, and I have come here today from Hawaii, to testify on behalf of
Earthjustice, the non-profit law firm for the environment-dedicated to
protecting the magnificent places, natural resources, and wildlife of
this earth and to defending the right of all people to a healthy
environment. I thank Chairman Jeffords and the committee for this
opportunity to testify regarding the exemptions proposed in the
Department of Defense's (DOD) Readiness and Range Preservation
Initiative and Senate bill 2225.
I have been a staff attorney for Earthjustice in its mid-Pacific
office in Honolulu, Hawaii for the past 7 years, working on a variety
of issues involving the Endangered Species Act, Migratory Bird Treaty
Act, and other Federal and State environmental laws. Before moving to
Hawaii in 1995, I worked on similar issues in my home State of
California.
On behalf of Earthjustice, I am here today to strongly urge
Senators on the conference committee for the DOD Authorization bill and
this Senate Environment and Public Works Committee to oppose exemptions
for the DOD from our nation's environmental and public health laws. The
Administration's Readiness and Range Preservation Initiative seeks
broad exemptions from the Clean Air Act, the Resource Conservation and
Recovery Act (RCRA), Superfund (CERCLA), the Endangered Species Act
(ESA), the Migratory Bird Treaty Act (MBTA), and the Marine Mammal
Protection Act (MMPA). If adopted, these exemptions would severely
compromise our nation's efforts to protect the air we breathe, the land
on which we live, and the rich diversity of plants and animals with
which we share this planet.
We commend the Senate Armed Services Committee for not including
these exemptions in the Senate DOD Authorization bill, S. 2514, and
thank the entire Senate for keeping these exemptions out of the bill
that subsequently passed on June 28, 2002. Unfortunately, the struggle
against these anti-environmental riders is not over, since the House
version of the DOD Authorization bill (H.R. 4546) includes provisions
that seek to weaken protections for endangered species and migratory
birds.
BAD ESA EXEMPTION RIDER IN FISCAL YEAR 2002 SUPPLEMENTAL APPROPRIATIONS
BILL
The House version of the Fiscal Year 2002 Supplemental
Appropriations bill includes a rider that seeks to exempt the DOD from
complying with important substantive and procedural protections of the
Endangered Species Act when DOD decisions such as hiring and defense
contracting result in increased off-base water consumption that
threatens imperiled species or their habitats. If adopted, this rider
could be used to establish a dangerous new precedent for shielding the
indirect impacts of DOD actions from review and for relieving the DOD
of its duty to mitigate those impacts. There is no valid reason to
apply a standard of analysis for DOD activities that is less protective
than the standard that applies to the activities of every other Federal
agency.
The indirect effects of Federal actions can be far more damaging
than the direct effects. Because of this, the need to consider indirect
effects is a well-established principle in many of our nation's
environmental laws, including the ESA. The exemption rider in the House
version of the Fiscal Year 2002 Supplemental Appropriations bill seeks
to not only do away with the consideration of potentially destructive
indirect impacts, but may also bar analysis of impacts from
interrelated and interdependent actions that would not occur but for an
action taken by the DOD. This would further weaken vital protections
Congress intended the ESA would provide endangered and threatened
species and their habitats.
In addition to listed species and their habitats, private, State
and county water users who share water basins with DOD installations
could suffer from passage of this rider. By shielding the DOD from
responsibility for off-base impacts resulting from DOD decisions, the
rider would shift the burden to other water users either to mitigate
the effects of those impacts or risk losing access to water on which
they have historically relied.
Were this rider to become law, the DOD could attempt to exempt many
potentially destructive actions from the ESA simply by outsourcing its
functions through defense contracts, since the DOD may no longer be
held accountable for water consumption occurring off base that is ``not
under the direct authority and control'' of the Secretary of Defense.
Such decisions greatly threaten national ecological treasures such as
Arizona's San Pedro River, where the Army's Fort Huachuca is located.
The San Pedro River, federally designated as a National Riparian
Conservation Area and recognized by the Nature Conservancy as one of
the world's eight ``Last Great Places,'' supports 82 species of mammals
and 385 species of birds. The House rider seeks to allow the DOD to
carry out actions likely to cause the extinction of listed species
without any consideration, through the ESA section 7 consultation
process, of mitigation measures or reasonable alternatives that might
spare those species.
Earthjustice, along with the overwhelming majority of the American
public and over 20 national environmental groups, believes that the DOD
should follow the law, as do other agencies and the public. A Zogby
International poll conducted on April 19, 2002 found that 85 percent of
registered voters believe government agencies such as the DOD should
not be exempt from complying with America's environmental laws. Rather
than seek to avoid its obligations under Federal environmental laws,
the DOD should set an example in protecting and restoring our nation's
environmental heritage. We urge Senators to oppose any such exemptions
in both the DOD Authorization bill and the fiscal year 2002
Supplemental Appropriations bill.
THE FARALLON DE MEDINILLA CASE AND THE PROPOSED MIGRATORY BIRD TREATY
ACT EXEMPTION
Turning to the anti-environmental provisions of the DOD proposal
and the House DOD Authorization bill, I would like first to discuss
briefly the Migratory Bird Treaty Act litigation involving the Navy's
bombing of the island of Farallon de Medinilla (FDM) in the Northern
Mariana Islands. This is the case the DOD is using to justify its
request for a blanket exemption from the MBTA. In December 2000, the
Center for Biological Diversity, represented by Earthjustice, sued the
Navy for violating the MBTA by bombing nesting seabirds at FDM, despite
the Navy's knowledge that its bombing kills migratory birds and despite
the U.S. Fish and Wildlife Service's (FWS) denial of the Navy's
application for an MBTA permit, due to the Navy's failure to satisfy
the law's basic requirements. FDM, an island of 206 acres, is home to
more than a dozen species of migratory birds protected by the MBTA and
the international treaties it implements, including one of only two
breeding colonies of the great frigatebird in the Mariana island chain
and the largest known nesting site for masked boobies in the Mariana
and Caroline islands.
On March 13, 2002, Judge Emmet G. Sullivan of the District of
Columbia District Court issued an order holding that the Navy's bombing
of FDM without an MBTA permit is illegal and, on May 1, 2002, issued a
preliminary injunction halting for thirty days all military training
exercises at FDM that could harm or kill migratory birds. The D.C.
Circuit Court stayed the preliminary injunction on May 21, 2002.
Following Judge Sullivan's subsequent issuance of a permanent
injunction, the D.C. Circuit granted a stay of that injunction pending
appeal on June 5, 2002.
Even though the Navy is now free to train at FDM as it sees fit,
the DOD is using the isolated example of this still unresolved
litigation to seek an across-the-board exemption from the MBTA for
training activities by all branches of the military everywhere. It is
seeking to leverage an isolated dispute over a 206-acre island in the
middle of the Pacific to exempt 25 million acres of DOD land across the
country. If successful in securing this exemption, the DOD could wipe
out untold numbers of migratory birds and destroy their nesting and
breeding areas without any assessment of biological impacts, any
effective oversight, or any real accountability.
There is simply no reason for this exemption. It has been more than
eighty years since the MBTA was enacted in 1918 to implement the
International Convention for the Protection of Migratory Birds between
the United States and Great Britain. In all that time, the FDM case is
the only example the DOD can point to where it believes the MBTA may
possibly interfere with military training. In the FDM case, the
Department of Justice attorney has represented to the court that both
the DOD and FWS think the Navy can get a permit under existing law by
applying for a different ``special use'' permit.
I say, ``may possibly'' because the FDM case is still working its
way through the judicial system and has yet to produce a final outcome.
In light of the D.C. Circuit's stay of the district court's injunction,
allowing the Navy to train at FDM while the court considers the appeal,
there is neither any urgency nor any need to enact legislation
weakening the MBTA now.
PROPOSED ENDANGERED SPECIES ACT EXEMPTION
Having spent much of my career working to protect essential
recovery habitat for Hawaii's imperiled plants and animals, my primary
expertise is in the application of the Endangered Species Act's
critical habitat provisions. Accordingly, I will focus the remainder of
my testimony discussing why the proposed ESA exemption is unnecessary
to ensure military preparedness and why, if enacted, it would spell
disaster for important efforts to bring endangered species from the
brink of extinction to recovery.
Both S. 2225 and H.R. 4546 (the focus of the upcoming conference
committee) contain similar provisions seeking to exempt lands that the
DOD owns or controls from critical habitat designations whenever there
is an Integrated Natural Resources Management Plan (INRMP) that
addresses special management considerations for the listed species
found there, and their habitats. While we recognize the DOD's need to
train to defend our national interests, such a broad exemption is not
needed to accomplish this goal. We urge Senators to ensure that this
ESA exemption is not included in the DOD authorization bill for several
reasons:
1. The ESA Exemption Seeks to Exclude All DOD Lands from Critical
Habitat
The broad wording of the proposed ESA exemption seeks to
effectively exclude all DOD lands from critical habitat. To be exempt,
the only condition is that the land in question have an INRMP that
``addresses endangered or threatened species and their habitat.'' S.
2225, Sec. 2017 (emphasis added); see also H.R. 4546, Sec. 312 (INRMP
must ``address[] special management considerations or protection'').
There is no requirement that the INRMP's management be adequate to
respond to the species' needs. Rather, as long as the INRMP discusses
listed species and their habitats and proposes some form of management,
it would pass muster, and the land it covers would be automatically
exempt from critical habitat designation.
The Sikes Act mandates that each INRMP provide, to the extent
``[c]onsistent with the use of military installations to ensure the
preparedness of the Armed Forces,'' some management of the species and
habitats found on the installation in question. 16 U.S.C. Sec. 670a(b).
Since all INRMPs must ``address'' listed species and habitats to some
extent, then all DOD lands with a final INRMP would automatically be
excluded from critical habitat designation should the proposed
exemption become law.
2. The ESA Exemption Seeks to Eliminate an Important Tool for Species
Recovery
To appreciate the serious blow that the proposed ESA exemption
would deal to efforts to bring endangered and threatened species back
from the brink of extinction, one must first understand the vital and
unique role critical habitat plays in promoting species recovery.
When it first promulgated the ESA, Congress recognized that habitat
loss is ``the major cause of the extinction of species worldwide.''
H.R. Rep. No. 95-1625 at 5 (1978), reprinted in 1978 U.S.C.C.A.N. 9453,
9455. Accordingly, Congress established as a primary purpose of the ESA
to ``provide a means whereby the ecosystems upon which endangered
species and threatened species depend may be conserved.'' 16 U.S.C.
Sec. 1531(b).
To further this goal, in 1978, Congress amended ESA section 4 to
require that FWS and the National Marine Fisheries Service (NFMS)
generally must designate critical habitat at the same time that they
list any species as endangered or threatened. Congress mandated
critical habitat designation for imperiled species because it confers
important protection beyond that provided by listing alone. Under ESA
section 7(a)(2), Federal agencies must consult FWS or NMFS to ensure
that any action they authorize, fund or carry out will not ``jeopardize
the continued existence of any [listed] species.'' 16 U.S.C.
Sec. 1536(a)(2). For species with designated critical habitat, each
Federal agency must, in addition, guarantee that its actions will not
``result in the destruction or adverse modification'' of that habitat.
16 U.S.C. Sec. 1536(a)(2).
By definition, critical habitat includes areas ``essential to the
conservation of [listed] species.'' 16 U.S.C. Sec. 1532(5)(A).
``Conservation,'' in turn, means recovery of these species ``to the
point at which the measures provided pursuant to this chapter are no
longer necessary.'' 16 U.S.C. Sec. 1532(3). Thus, while the first ESA
section 7(a)(2) duty not to ``jeopardize the continued existence'' of
listed species helps to protect them from extinction, critical habitat
designation allows these species to recover to a non-imperiled status,
the ultimate goal of the ESA.
In lobbying for the ESA exemption, the DOD glosses over the
significant lowering of the bar of endangered species protection that
may result should this provision become law. The DOD emphasizes that it
would still have to consult FWS and NMFS under ESA section 7(a)(2), but
fails to mention that, in cases where essential recovery habitat is
currently unoccupied by listed species, consultation might not be
triggered at all absent a formal designation of the habitat as
``critical habitat.'' Consultation for potential impacts to essential
recovery habitat that is unoccupied is likely not to occur with an
INRMP alone.
For species that are endangered, dispersal into currently
unoccupied territory, is in most cases, key to their recovery. In
Hawaii, where many plant species have been reduced to single
populations, it is vital to protect areas historically occupied--but
currently unoccupied--if we are to have any chance of increasing the
numbers and distribution of these plants to save them from extinction.
Other species, like the Florida panther, may rely on unoccupied habitat
to provide dispersal corridors between currently occupied areas.
Moreover, without critical habitat designated, the standards
against which any consultations that did take place would measure DOD
activities would be much less protective. Rather than ensuring that the
DOD's activities would not destroy habitat that is essential to species
recovery, the DOD is seeking a requirement only to avoid ``jeopardy,''
that is, pushing a species to extinction. The DOD proposal could have
the effect of precluding a species from having any chance at recovery.
When one considers that the DOD controls over 25 million acres of
land, home to over 300 federally listed species, the implications for
species recovery of the DOD's proposed exemption is enormous. For
example, the Army's Makua Military Reservation on O`ahu is home to over
thirty endangered plants, many of which are found only in the Makua
area, and nowhere else.
3. There is No Need to Weaken the ESA to Achieve Military Readiness
Before eliminating essential protection for recovery habitat on DOD
lands, one must take a hard look at whether this drastic measure is
necessary. Review of the ESA shows that the law already contains the
flexibility the DOD needs to ensure that it can prepare to defend our
Nation.
Under ESA section 4(b)(2), before FWS or NMFS can designate
critical habitat, they must ``tak[e] into consideration the economic
impact, and any other relevant impact, of specifying any particular
area as critical habitat.'' 16 U.S.C. Sec. 1533(b)(2) (emphasis added).
Thus, if DOD has a valid concern that designating critical habitat on a
particular facility would interfere with vital training activities, the
ESA already provides a mechanism to express those concerns and to seek
exclusion of specific areas on a case-by-case basis.
The critical habitat designation process for the coastal California
gnatcatcher, a threatened bird, illustrates how the existing section
4(b)(2) process takes into consideration concerns about military
readiness. As originally proposed, the critical habitat designation for
the gnatcatcher would have included about 40 percent of Marine Corps
Base Camp Pendleton. 65 Fed. Reg. 63680, 63690 (Oct. 24, 2000). During
the public comment periods on the proposal, the Marines expressed
concerns that, if finalized, the designation would interfere with vital
training activities. The FWS took due note of the Marines' concerns
and, pursuant to section 4(b)(2), issued a final rule that excluded all
of Camp Pendleton from critical habitat for the California gnatcatcher.
Unlike the careful case-by-case balancing required under section
4(b)(2), the proposed blanket ESA exemption seeks to exclude areas from
critical habitat, even if they manifestly have no connection to
military readiness. The expansive wording of the proposed exemption
extends to all lands ``owned or controlled'' by DOD, including military
exchanges, recreational facilities such as golf courses, commissaries,
water treatment facilities, and so forth. Section 4(b)(2)'s existing
mechanism for evaluating national defense needs is a far superior way
to address the DOD's concerns.
Moreover, the ESA, as currently written, already provides for the
potential situation when military activity that might be curtailed by
critical habitat designation. Section 7(j) gives the DOD an automatic
exemption from any provision of the ESA--including the prohibition on
adversely modifying or destroying critical habitat--whenever ``the
Secretary of Defense finds that such exemption is necessary for reasons
of national security.'' 16 U.S.C. Sec. 1536(j). No other Federal agency
has this power to demand an automatic exemption from the ESA's
requirements.
Thus, if critical habitat designation were to conflict with
military training activities vital for national security, the Secretary
of Defense already has the authority to ensure that training will take
place, untrammeled by restrictions imposed by critical habitat, or, for
that matter, any other ESA provision. The fact that the Secretary of
Defense has never felt the need to invoke the automatic exemption
provisions of section 7(j) belies the DOD's current claim that the
proposed exemption is needed to ensure military readiness.
The ESA, as currently written, already gives the DOD the tools it
needs to ensure, on a case-by-case basis, that critical habitat will
not interfere with vital training. There is no reason to give the DOD a
sweeping exemption from all critical habitat designations, since, in
most cases, no conflict between habitat protection and military
readiness actually exists.
4. INRMPs Are Inadequate Substitutes for Critical Habitat
The DOD's suggestion that INRMPs can substitute for critical
habitat ignores crucial differences between the type of protection that
each provides. First, because the Sikes Act mandates that INRMPs tailor
their management programs to be consistent with the military mission of
the installation in question, the protective measures an INRMP can
require are inherently limited in scope. In contrast, ESA section
7(a)(2)'s prohibition on adverse modification or destruction of
critical habitat establishes uniform standards for all Federal
agencies--including the DOD. Critical habitat provides more protection
than INRMPs ever could.
Second, because it comes into play during section 7 consultation,
which involves a case-by-case analysis of the likely impacts of
proposed military activity, critical habitat ensures that the
evaluation of a species' habitat needs will always be based on ``the
best scientific and commercial data available.'' 16 U.S.C.
Sec. 1536(a)(2). In contrast to this dynamic process, INRMPs are static
documents, generally updated only once every 5 years. 16 U.S.C.
Sec. 670a(b)(2). They do not guarantee that decisions will always be
based on the latest and best science, as critical habitat does.
Third, because INRMPs are on-the-ground management plans, their
effectiveness depends entirely on their funding level. Without funding,
INRMPs provide no benefit to listed species or their habitat.
For example, on the island of O`ahu, FWS recently refused to
exclude six Army installations with INRMPs--Dillingham Military
Reservation, Kawailoa Training Area, Kahuku Training Area, Makua
Military Reservation, Schofield Barracks Military Reservation, and
Schofield Barracks East Range--from proposed critical habitat
designations for endangered and threatened plants on the grounds that
``there is currently no guarantee of long-term funding for management
actions that are ongoing or future management actions.'' 67 Fed. Reg.
37108, 37161.
In contrast to INRMPs, the restrictions on habitat-destroying
Federal projects that critical habitat imposes are always there,
protecting species regardless of funding.
Fourth, because the prohibition on adversely modifying critical
habitat applies to all Federal agencies, critical habitat reaches a
broader set of Federal threats than INRMPs, which regulate activities
only on military installations. Thus, even if an INRMP contained the
most proactive habitat management restrictions imaginable and were
fully funded, an installation commander may have no power to stop
another Federal agency from carrying out activities off-base, even if
the activities were certain to harm habitat resources within
installation boundaries. In contrast, critical habitat reaches all
Federal activities, whether they take place inside or outside
designated habitat.
A recent proposal to expand the runways at Kahului Airport on Maui
to accommodate direct flights from abroad vividly illustrates the vital
role critical habitat can play in protecting essential recovery
habitat--like that found on many military installations--from indirect
Federal threats. The National Park Service strongly opposed the airport
expansion on the ground that it would increase the rate of introduction
of invasive alien species, which eventually would spread to Haleakala
National Park, degrading the native habitat found there. However,
because Kahului Airport is located outside park boundaries, there was
little park managers--whose primary mission is to protect the park's
native species and ecosystems--could have done to prevent the Federal
Aviation Administration (``FAA'') from approving the expansion plans
had the State of Hawaii not withdrawn them because of unfavorable
economic conditions. In contrast, were critical habitat designated
within park boundaries, the FAA would have to ensure that any airport
expansion would not likely result, even indirectly, in adverse
modification of that essential recovery habitat. See 67 Fed. Reg.
15856, 15954 (Apr. 3, 2002) (noting that designation affects
``regulation of airport improvement activities by the FAA'').\1\
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\1\ For that reason, the superintendent of Haleakala National Park
lobbied heavily for the park's inclusion in critical habitat when FWS
proposed critical habitat for endangered and threatened plants on Maui.
---------------------------------------------------------------------------
Similarly, the only way to ensure that Federal activities outside
DOD lands will not adversely modify essential recovery habitat on DOD
lands is through critical habitat designation. INRMPs only apply to
within installation boundaries and, thus, cannot prevent harm from
outside Federal activities.
5. The DOD is Seeking a Less Demanding Standard than Current FWS Policy
To persuade Congress to adopt the proposed ESA exemption, the DOD
has argued that it is nothing more than a codification of the current
FWS policy to exclude from critical habitat those areas that currently
receive adequate special management considerations and protection for
essential recovery habitat. The standard for exemption in the proposed
ESA amendment--that DOD lands have an INRMP that merely ``addresses''
species and habitat management issues--is much less demanding than the
standard FWS currently applies.
Before excluding DOD lands from critical habitat, FWS insists that
they meet the following three criteria:
(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 management
strategies will be effective, by providing for periodic monitoring and
revisions as necessary.
67 Fed. Reg. at 15905.
The DOD's recent experience with critical habitat designations in
Hawaii contradicts its claim that the proposed ESA exemption is nothing
more than a codification of current FWS policy. In case after case, FWS
has found INRMPs to be inadequate substitutes for critical habitat.
On Kaua`i, FWS found that management actions on lands under Navy
control at Barking Sands and Makaha Ridge ``are not sufficient to
address the factors inhibiting the long-term conservation'' of the
endangered plants found there. 67 Fed. Reg. 3940, 3998 (Jan. 28, 2002).
On O`ahu, FWS concluded that existing management actions at six
Army installations (Dillingham Military Reservation, Kawailoa Training
Area, Kahuku Training Area, Makua Military Reservation, Schofield
Barracks Military Reservation, and Schofield Barracks East Range) and
for lands under Navy control at Lualualei are not ``sufficient to
address the primary threats to [listed plant] species'' and that
``appropriate conservation management strategies have [not] been
adequately funded or effectively implemented.'' 67 Fed. Reg. 37108,
37164 (May 28, 2002); see also id. at 37161-63.
In designating critical habitat for the O`ahu `elepaio, a forest
bird, FWS reviewed the INRMPs for three Army installations (Fort
Shafter, Makua Military Reservation, and Schofield Barracks) and for
Pearl Harbor Naval Magazine Lualualei, finding that ``no military
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).
On the Island of Hawaii, FWS found that management at the Army's
Pohakuloa Training Area ``is not sufficient to address many of the
factors inhibiting the long-term conservation of any of [the] 10
[federally listed plant] species'' found there. 67 Fed. Reg. 36968,
37002 (May 28, 2002).
Thus, after reviewing INRMPs across the State, the Service found
that none of them provided adequately for the long-term conservation of
Hawaii's endangered and threatened species and their habitats. By
excluding these same installations from critical habitat, the proposed
ESA exemption would be a major setback in the struggle to save
imperiled species in Hawaii--and throughout the country--from
extinction.
CONCLUSION
In summary, Earthjustice strongly opposes the DOD's proposal to
deprive migratory birds and essential recovery habitat on DOD lands of
vital legal protections. Until the FDM litigation reaches a final
resolution, it is premature for Congress to assess whether any changes
to the MBTA are necessary or appropriate. As for the ESA, the current
law provides assurances that training that is truly essential to
national security will continue. We urge Senators on the conference
committees to reject the exemptions found in the House version of the
DOD Authorization bill and the fiscal year 2002 Supplemental
Appropriations bill, which would weaken our country's most important
environmental and public health laws.
Thank you for the opportunity to testify today.
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Responses of David L. Henkin to Additional Questions from Senator Smith
Question 1. You opened your testimony by promising to explain ``why
the proposed ESA exemption is unnecessary to ensure military
preparedness and why, if enacted, it could spell disaster for important
efforts to bring endangered species from the brink of extinction to
recover''. Yet you never addressed these points, at least not to my
satisfaction. In light of the compelling testimony by the generals and
admiral as to the grave threat caused to military readiness by the
wording of certain existing statutes, and the minor clarifications
being requested, please explain, with as much particularity as you are
able why the proposals of the RRPI are ``unnecessary to ensure military
preparedness''. Please include in your answer a list of your
qualifications as an expert in the area of military preparedness.
Response. When I testified before the Committee, I did not claim to
be an expert in the area of military preparedness, and I make no such
claim now. As stated in my testimony, my primary expertise is in
interpreting and applying the Endangered Species Act's (ESA) critical
habitat provisions. I acquired this expertise during years of
professional experience seeking to protect essential recovery habitat
for Hawaii's imperiled plants and animals. Based on this experience, I
am convinced that the proposed ESA exemption is unnecessary to ensure
military preparedness and, if enacted, would spell disaster for
important efforts to bring endangered species from the brink of
extinction to recovery.
The proposed exemption is unnecessary because the ESA already
contains the flexibility the Department of Defense (DOD) needs to
ensure that it can prepare to defend our nation. Specifically, under
ESA section 4(b)(2), before the U.S. Fish and Wildlife Service (FWS) or
National Marine Fisheries Service finalizes a critical habitat
designation, it must ``tak[e] into consideration the economic impact,
and any other relevant impact, of specifying any particular area as
critical habitat.'' 16 U.S.C. Sec. 1533(b)(2) (emphasis added). Thus,
if the DOD has concerns that designating critical habitat at a
particular facility would interfere with vital training activities, the
ESA already provides a mechanism to express those concerns and to seek
exclusion of specific areas on a case-by-case basis. As explained in my
written testimony, the DOD has already had success using this provision
to convince the FWS to exclude, based on concerns for military
readiness, all of Marine Corps Base Camp Pendleton from the final
critical habitat designation for the coastal California gnatcatcher.
Unlike the careful case-by-case balancing required under section
4(b)(2), the proposed blanket ESA exemption seeks to exclude from
critical habitat areas identified as essential to endangered species'
recovery, even if the areas manifestly have no connection to military
readiness. The expansive wording of the proposed exemption extends to
all lands ``owned or controlled'' by the DOD, including military
exchanges, recreational facilities such as golf courses, commissaries,
water treatment facilities, and so forth. Section 4(b)(2)'s existing
mechanism for evaluating national defense needs is a far superior way
to address the DOD's concerns.
Moreover, the ESA, as currently written, already provides for the
hypothetical situation in which a critical habitat designation might
interfere with military activity deemed vital to national security.
Section 7(j) gives the DOD an automatic exemption from any provision of
the ESA--including the prohibition on adversely modifying or destroying
critical habitat--whenever ``the Secretary of Defense finds that such
exemption is necessary for reasons of national security.'' 16 U.S.C.
Sec. 1536(j). No other Federal agency has this power to secure an
automatic exemption from the ESA's requirements. Moreover, as Marine
Corps General Michael Williams testified, the DOD could secure such an
exemption overnight, if time were of the essence.
Thus, if a critical habitat designation ever were to conflict with
military training activities vital for national security, the Secretary
of Defense already has the authority to ensure that training takes
place, untrammeled by restrictions imposed by critical habitat or, for
that matter, any other ESA provision. The fact that, as the generals'
and admiral's testimonies confirmed, the Secretary of Defense has never
felt the need to invoke an automatic exemption under section 7(j)
belies the DOD's current claim that the proposed exemption is needed to
ensure military readiness.
Finally, while the generals and admiral related anecdotes (nearly
all of which concerned the ESA's prohibitions on unpermitted take of
listed species, not critical habitat), they could not refute the
findings of the General Accounting Office's (GAO) June 2002 study,
which concluded that military reports continue to show high levels of
combat readiness across the armed services. There was nothing in the
GAO study that suggested a need to change our environmental and public
health laws to maintain readiness, much less a need to rush to enact
the type of sweeping changes that the DOD proposes. Rather, the report
indicated that the various branches of the military have failed to look
comprehensively at either opportunities to share training assets
between the services or alternative types of training that could
address perceived encroachment conflicts.
Question 2. In answer to a question I put to you at the hearing,
you testified that ``the Navy . . . in 1996 and 1997 . . . applied for
a permit [a]nd the Fish and Wildlife Service denied its permit because
[the Navy] had not put together a permit application that satisfied the
requirements of the law.'' Isn't that testimony just plain wrong? Isn't
the truth that the Fish and Wildlife Service denied the permit because
the Fish and Wildlife Service found it lacked jurisdiction to grant a
permit for incidental takings?
Response. No, my testimony is correct. The U.S. Fish and Wildlife
Service's stated reasons for denying the Navy's application were: (1)
the Navy was unable to show it could ensure compliance with legal
limits and conditions applicable to all MBTA permits, such as number
and species of birds taken; and (2) even the number of birds the Navy
arbitrarily proposed to take ``could have a significant impact on local
nesting populations.'' 8/5/96 letter from J. Bradley Bortner to Daniel
Moriarty. Also, in the litigation over Navy bombing of Farallon de
Medinilla (FDM), the Department of Justice attorney represented to the
court that both the DOD and the FWS believed the Navy could get a
permit under existing law by applying for a ``special use'' permit,
rather than the ``depredation'' permit it sought in 1996.
Question 3. With respect to the allegations in the FDM case, isn't
it true that there was no unquestioned proof that any birds were in
fact taken, and that the allegation--at least as briefed on appeal--
that some forty (40) birds per year even might be taken if the
injunction did not issue?
Response. No. The Navy acknowledged repeatedly that its activities
at FDM take migratory birds. E.g., Navy's Brief on Appeal at 38 (``It
is uncontested that the Navy's training on FDM kills migratory
birds.'') The Navy also acknowledged that ``it is impossible to predict
with any precision how many birds covered by the MBTA will be harmed by
the Navy's exercises.'' Id. at 37.
Question 4. Isn't it true that the purpose of the 1918 Migratory
Bird Treaty Act was to stop the intentional hunting of migratory birds
for commercial reasons such as feathers for ladies' hats? The recent
D.C. District Court case held that the MBTA as written prohibits both
intentional and unintentional harm to migratory birds. Isn't this a
perversion of Congressional intent? Wouldn't the RRPI merely restore
the original intent of the Act?
Response. No. The purpose of the MBTA was by no means limited to
restricting hunting or intentional conduct. See United States v. Moon
Lake Electric Ass'n, 45 F. Supp. 2d 1070, 1080 (D. Cob. 1999)
(``Congress intended the MBTA to regulate more than just hunting and
poaching'') (quoting statements of many Members of Congress expressing
statute's broader intent). See also Humane Society v. Glickman, No. 98-
1510, 1999 U.S. Dist. LEXIS 19759, at *28 (D.D.C. July 6, 1999)
(``Congress . . . also passed the MBTA to preserve for the Nation the
aesthetic good that migratory birds delivered as they passed overhead
during their annual sojourns. See H.R. Rep. No. 65-243, at 2 (``The
utility of this measure appeals to many others than farmers and
sportsmen, but thousands upon thousands of people--men, women, and
children--who have happy memories of their homes made brighter and more
attractive by the annual visitation of the robin, the catbird and other
insectivorous birds embraced within the treaty')''), aff'd, 217 F.3d
882 (D.C. Cir. 2000). Note also that the MBTA by its terms prohibits
not only ``hunting,'' ``capturing,'' ``shooting,'' and ``trapping,''
but also ``killing,'' ``possessing,'' ``offering for sale,'' ``offering
to barter, ``bartering,'' ``offering to purchase,'' ``purchasing,''
``delivering for shipment,'' ``shipping,'' ``exporting,''
``importing,'' ``delivering for transportation,'' ``transporting,''
``carrying,'' and ``receiving,'' 11 U.S.C. Sec. 703, all of which may
be performed without exhibiting the physical conduct normally
associated with hunting.
__________
Statement of Daniel S. Miller, First Assistant Attorney General,
Colorado Department of Law, on Behalf of the Attorneys General of
Arizona, California, Colorado, Massachusetts, Nevada, New York, Oregon,
and Washington
INTRODUCTION
Mr. Chairman, thank you for the opportunity to present the State
perspective on this issue today. These written remarks are submitted
today on behalf of the Attorneys General of Arizona, California,
Colorado, the Commonwealth of Massachusetts, Nevada, New York, Oregon,
and Washington. Our testimony will address only those parts of the
Department of Defense's (DOD's) legislative proposals that would amend
the Clean Air Act, the Resource Conservation and Recovery Act (or RCRA)
or the Comprehensive Environmental, Response, Compensation and
Liability Act (known as 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. However, military training activities can also
have substantial adverse impacts on human health and the environment.
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 instances 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.
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.
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 or
strengthened not weakened. Certainly, any amendments that would weaken
the protections these laws provide must be justified by important
countervailing considerations that are supported by the facts. While we
certainly agree that maintaining readiness is necessary, the lack of
any demonstrated conflict with RCRA, CERCLA and Clean Air Act
requirements, together with the inherent flexibility of these laws,
causes 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. We disagree with DOD's
statements that these amendments only apply to ``operational'' ranges.
DOD's amendments to RCRA and CERCLA would likely affect cleanups of
unexploded ordnance at thousands of sites nationwide, including many
that are no longer in Federal ownership, and could be read to exempt
all munitions-related and explosives-related wastes from regulation as
hazardous waste. 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.
Finally, we are concerned with the legislative process by which
these proposed amendments have been considered. The proposed amendments
were proposed as amendments to the Defense Authorization Bill in both
Houses of Congress. The legislative language was first made public only
4 days before markup of the Defense Authorization bill in the Readiness
Subcommittee of the House of Representatives. Until this hearing before
your committee, no hearings on this legislative language have been held
before a committee of jurisdiction. 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 continue a trend that has intensified in recent
years where legislation that could alter or impair State authority over
Federal facility environmental compliance is often not subjected to
regular order with hearings before the congressional committees with
jurisdiction over the environmental laws, but instead is proposed as
amendments to authorization or appropriations bills. The National
Association of Attorneys General recently gave preliminary approval to
a resolution opposing this practice, which we have attached to our
testimony.\1\
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\1\ See Exhibit 1. The resolution should become final and effective
on or about July 8, 2002.
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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'' downplay
the need for amending RCRA and CERCLA, characterizing the impact on
readiness as merely ``potentially significant''.\2\ DOD's sole
justification for its proposed amendments to RCRA and CERCLA is that a
citizen suit was recently filed in Alaska alleging that the discharge
of ordnance onto an operational military range constitutes ``disposal''
under RCRA and a ``release'' under CERCLA.\3\ Assuming the plaintiffs
prevail in this suit, the appropriate relief would be to require DOD to
obtain a RCRA permit for the affected range. Such a permit could be
crafted in a manner that would protect the environment while allowing
DOD to continue training.\4\
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\2\ ``Readiness and Range Preservation Initiative Summary,'' dated
April 18, 2002, p. 7 (attached as Exhibit 2).
\3\ Id.
\4\ In the 1992 Federal Facility Compliance Act, Congress directed
EPA to promulgate regulations that defined when military munitions
become solid wastes. However, EPA has only promulgated such regulations
for a small subset of military munitions. Thus, there are currently no
RCRA regulations governing management of used or fired munitions on
active ranges. Nonetheless, EPA would certainly have the discretion to
impose environmentally protective permit conditions that would not
adversely impact readiness.
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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.\5\ 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.
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\5\ Exhibit 2, p. 6.
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The environmental laws provide ample flexibility to accommodate any
conflicts between military readiness and environmental
protection
We think that 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, we believe that 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 requirement. 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. DOD's approach would weaken environmental protections even
in the vast majority of cases where there was 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.\6\ 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.''\7\ The entire finding
consists of three paragraphs. President Clinton made similar findings
annually from 1996 through 2000 regarding this same matter to prevent
the release of classified information. 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.
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\6\ 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.''
\7\ 66 Fed. Reg. 50807 (Oct. 4, 2001), attached as Exhibit 3.
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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.''\8\ 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.
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\8\ 42 U.S.C. Sec. 7418(b).
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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.\9\ 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.''\10\ 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.\11\ If they are unable to reach agreement, the
Secretary of Defense must notify the President, who shall resolve the
matter.\12\
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\9\ 42 U.S.C. Sec. 6961(b)(2).
\10\ 10 U.S.C. Sec. 2014(a) and (d).
\11\ 10 U.S.C. Sec. 2014(c).
\12\ 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\13\
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.\14\
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\13\ 503 U.S. 607 (1992).
\14\ ``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, attached as Exhibit 4.
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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 fallen over time, from a high of 94.2 percent in fiscal year
1993 to a low of 61.5 percent in fiscal year 1998.\15\ 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. DOD's Clean Water Act compliance rates are slightly worse
than the Federal agency totals.\16\
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\15\ Id.
\16\ 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. DOD-specific data for fiscal year 1995 and earlier
were not available in time to be included in this testimony.
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Compliance statistics alone, telling as they are, do not paint the
entire picture of Federal agencies' resistance to compliance 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,\17\
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.\18\
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. That challenge resulted in a
companion decision to Hancock that also sided with the Federal
agencies.\19\ Again, Congress acted swiftly to amend the Clean Water
Act to require Federal agencies to obtain discharge permits.\20\ More
recently, DOD spent years challenging State authority over cleanup of
contamination at Federal facilities, ultimately losing in the Tenth
Circuit.\21\
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\17\ 426 U.S. 167 (1976).
\18\ Pub.L. 95-95, Sec. 116(a).
\19\ Environmental Protection Agency v. California, 426 U.S. 200
(1976).
\20\ Pub.L. 95-217, Sec. 60, 61(a).
\21\ U.S. v. Colorado, 990 F.2d 1565 (10th Cir. 1993).
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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:
<bullet> DOD is refusing to pay penalties for violations of State
requirements related to underground petroleum storage tanks.\22\
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\22\ 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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<bullet> 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.\23\
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\23\ 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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<bullet> DOD is challenging EPA's authority under CERCLA to
oversee cleanups at Federal facilities on the National Priorities
List.\24\ Specifically, the Air Force has disputed EPA's authority to
require enforceable ``institutional controls'' and other enforceable
requirements in CERCLA Records of Decision. ``Institutional controls''
are legal mechanisms to restrict land or water use, and are often
employed to reduce the cost of cleaning up contaminated sites. We
understand that this dispute is holding up cleanups at over 20 DOD
CERCLA sites.
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\24\ See documents posted on EPA's Federal Facilities Restoration
and Reuse Office website at http://epa.gov/swerffrr/whatsnew.htm
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<bullet> DOD is also challenging State authority to require
compliance with State institutional control laws. For example, last
year DOD testified in opposition to institutional control legislation
then pending in Colorado. The pending legislation (which passed without
a single ``nay'' vote and was subsequently enacted into law) created a
statutory ``environmental covenant'' as a mechanism to enforce
institutional controls imposed as part of contaminated site cleanups
under various environmental laws. 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.\25\
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\25\ Personal knowledge of author.
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
The $14 billion figure is only a small portion of the remaining
costs to remediate DOD's environmental contamination. It does not
include the cost to remediate thousands of potentially contaminated
``Formerly Used Defense Sites'' (``FUDS'') in the United States and its
territories and possessions. FUDS are properties that were formerly
owned, leased, possessed, or operated by DOD or its components.\30\
While many FUDS contain ``run of the mill'' environmental contaminants
such as solvents, petroleum storage tanks, etc., unexploded ordnance is
a big problem at many of these sites. The GAO estimated recently that
unexploded ordnance contamination may exist at over 1,600 FUDS.\31\
---------------------------------------------------------------------------
\30\ ``Environmental Contamination: Cleanup Actions at Formerly
Used Defense Sites,'' GAO-01-557 (July 2001), p. 1.
\31\ Id. at 2.
---------------------------------------------------------------------------
DOD recently estimated that it may cost $19 billion to clean up
contaminated FUDS.\32\ However, this figure is likely understated, for
two reasons. First, 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.\33\ 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.\34\ Contamination at the 32 sites included high levels of
PCBs, unexploded ordnance, leaking underground storage tanks, asbestos,
and groundwater contamination.\35\
---------------------------------------------------------------------------
\32\ ``Fiscal Year 2001 Defense Environmental Restoration Program
Annual Report to Congress,'' p. 126.
\33\ ``No Further Action Survey,'' Association of State and
Territorial Solid Waste Management Officials, December 1998, p. 2.
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.''
\34\ Id. at 1.
\35\ Id.
---------------------------------------------------------------------------
The second reason DOD's cost estimate for completing cleanup of
FUDS is likely understated is that DOD has not yet been able to develop
reliable cost estimates for cleaning up unexploded ordnance and related
contamination. DOD's recent estimates for unexploded ordnance cleanup
vary wildly from $14 billion to over $100 billion.\36\ There are two
causes for DOD's failure to develop reliable cost estimates for range
cleanup. First, DOD does not have a consistent cost methodology.\37\
The second, and more fundamental reason, is that DOD has very little
data on the nature and extent of unexploded ordnance contamination at
current and former ranges.\38\
---------------------------------------------------------------------------
\36\ ``DOD Training Range Cleanup Cost Estimates Are Likely
Understated,'' GAO-01-479 (April 2001), pp. 5 and 13.
\37\ Id. at 4.
\38\ See Id. at 5; ``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, attached hereto as
Exhibit 7.
---------------------------------------------------------------------------
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.\39\
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.\40\
---------------------------------------------------------------------------
\39\ Exhibit 7, p. C-1-22.
\40\ Id. at p. C-1-25.
---------------------------------------------------------------------------
The bottom line is that unexploded ordnance contamination, both at
facilities under DOD's jurisdiction and at FUDS represents an
environmental problem of huge dimensions. According to a recent GAO
report, DOD estimates that approximately 16 million acres of land on
transferred ranges are potentially contaminated with unexploded
ordnance.\41\ ``Transferred'' ranges are ranges that have been
transferred to the management of another Federal agency, or have been
transferred out of Federal ownership;\42\ they are a large part of the
FUDS problem. 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.\43\
---------------------------------------------------------------------------
\41\ ``DOD Training Range Cleanup Cost Estimates Are Likely
Understated,'' GAO-01-479 (April 2001), p. 11.
\42\ Id. at 8.
\43\ Exhibit 7, pp. C-1-8 to C-1-21.
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In addition to the obvious explosive hazards, some constituents of
explosives and munitions contamination have toxic or potential
carcinogenic effects,\44\ and can cause groundwater contamination. For
example, 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, an explosives-related
contaminant that migrated from MMR. Subsequently, DOD spent
approximately $2 million to hook the town up to an alternate water
supply.\45\ 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.\46\
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\44\ 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 8. Also included in Exhibit 8 are
two EPA documents regarding perchlorate, another common munitions
constituent.
\45\ ``Military Cash Flows for New Water Supply,'' story by Kevin
Dennehy, Cape Cod Times, April 24, 2002, attached as Exhibit 9.
\46\ ``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.
---------------------------------------------------------------------------
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.\47\ 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.
And the history of Federal agency compliance with environmental
requirements suggests that there is no such thing as a ``narrow''
environmental exemption for Federal facilities. Certainly, when one
considers the magnitude of the munitions contamination problem at FUDS
and other DOD sites, and the groundwater contamination at the
Massachusetts Military Reservation, any change in DOD's obligation to
comply with cleanup requirements has the potential for large impacts.
But the bottom line is that the language of DOD's proposed amendments
would create wide loopholes and jeopardize environmental protection,
without any corresponding benefit to readiness.
---------------------------------------------------------------------------
\47\ See, e.g., Exhibit 2.
---------------------------------------------------------------------------
DOD's amendment to RCRA would likely preempt 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.\48\ By narrowing this definition, DOD intends to 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.''\49\ Thus, the scope of the 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.\50\ By re-defining ``solid waste'' in
a very limited fashion, DOD's proposed amendment will likely preempt
State authority over munitions, explosives and the like not only at
operational ranges, but--contrary to DOD's assertions--also at FUDS, at
DOD sites other than ranges, and even at private defense contractor
sites.
---------------------------------------------------------------------------
\48\ 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.
\49\ 42 U.S.C. Sec. 6961(a).
\50\ Department of Energy v. Ohio, 503 U.S. 607 (1992).
DOD's proposed amendment to the definition of solid waste
provides:
Sec. 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
subsection (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 subsection (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, on an operational range, except as provided in
subsection (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.''
Under section 2019(a)(1), munitions are solid wastes only under the
following circumstances: (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 addressed.
Under this definition, munitions that were deposited on an
operational range and simply remain there after the range closed or was
transferred are not solid wastes, 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 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.
Proposed section 2019(a) also likely overrides 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),\51\ 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 section 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.
---------------------------------------------------------------------------
\51\ See Exhibit 8.
---------------------------------------------------------------------------
Proposed section 2019(a)(2) also 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 applies to any
facility with such wastes, including private contractor sites and
Department of Energy facilities. It arguably even extends to the
chemical munitions scheduled for destruction at various military
installations around the country.
DOD's proposed amendments to CERCLA are also far-reaching, and also go
far beyond DOD's stated concerns with readiness
Proposed section 2019(b) has similarly broad consequences for
CERCLA. This provision states:
(b)(1) 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.
(3)(A) Notwithstanding the provisions of paragraph (2),
nothing in this section affects 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 address an imminent and substantial
endangerment to the public health or welfare or the
environment, including orders to test and monitor.
(B) Nothing in this section affects the ability of a State or
other person to request that the President exercise such
authority under section 106(a) of such Act to address an
imminent and substantial endangerment to the public health or
welfare or the environment.
(4) Nothing in this section affects the authority of the
Department to protect the environment, safety, and health on
operational ranges.
This provision restricts the definition of ``release'' in CERCLA by
excluding ``the deposit or presence on an operational range of any
explosives, unexploded ordnance, munitions, munitions fragments, or
constituents thereof that have been deposited thereon incident to their
normal and expected use.'' This provision may restrict EPA's authority
to use CERCLA section 106 authorities. CERCLA section 106 authorizes
action when the President determines the ``may be an imminent and
substantial endangerment,'' Section 2019(b)(3)(A) appears to preserve
only 106 authorities for situations that pose an actual ``imminent and
substantial endangerment.'' The scope of section 106 authority has been
the subject of much litigation, including the impact of the phrase
``may be'' in section 106.\52\
---------------------------------------------------------------------------
\52\ See, e.g., U.S. v. Conservation Chemical Co., 619 F. Supp.
162, 192 (D.C. Mo. 1985).
---------------------------------------------------------------------------
While section 2019 (b) may preserve a narrowed scope of EPA
authority under section 106, its overall impact on cleanup of
munitions-related contamination on operational ranges is far from
clear. The provision appears to eliminate section 104 removal and
remedial authority for munitions-related and explosives-related
contamination. It also appears to remove cleanup of such contamination
from the scope of CERCLA section 120 interagency agreement 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) would
severely undermine the goal of achieving cleanups that adequately
protect human health and the environment.
The change in the definition of ``release'' also 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.''\53\
CERCLA's definitions of ``removal'' and ``remedial action'' are limited
by the definition of ``release.''\54\ 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,'' this provision
arguably precludes State superfund authority over munitions, etc. on
operational ranges.
---------------------------------------------------------------------------
\53\ 42 U.S.C. Sec. 9620(a)(4).
\54\ 42 U.S.C. Sec. 9601(23) and (24).
---------------------------------------------------------------------------
Read in conjunction with proposed Sec. 2019(b)(1), Sec. 2019(b)(2)
also likely precludes existing CERCLA and State authority over
munitions-related contamination on closed, transferred, and
transferring ranges (i.e., FUDS). This statutory construction follows
from the fact that section 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 Sec. 2019(b)(1) specifically
included the presence of munitions-related contamination on a non-
operational range in its definition of release. However,
Sec. 2019(b)(1) is ambiguous in this regard. Its reference to ``the
presence off an operational range'' could be read to mean the presence
on land adjacent to an operational range, rather than meaning
munitions-related contamination that was originally deposited on an
operational range, and remains on the range after the range is no
longer operational. With respect to State authority, any ambiguities in
a waiver of immunity will be construed in favor of a narrow waiver.
Additionally, there are several States whose superfund-type laws are
tied to definitions in CERCLA. Amending CERCLA's definition of
``release'' will effect corresponding changes in these States'
authorities.
Finally, by re-defining ``solid waste'' to exclude munitions
constituents, 2019(a)(1) may exclude such constituents from being
``hazardous substances.'' This includes many chemicals that may have
carcinogenic or other toxic effects.\55\ Because natural resource
damages are only available for injuries caused by hazardous substances,
this amendment may preclude States from bringing natural resource
damage claims for munitions-related contamination.
---------------------------------------------------------------------------
\55\ See, e.g., Exhibit 8.
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CONCLUSION
In closing, we do not believe that DOD's far-reaching amendments to
RCRA, CERCLA, or the Clean Air Act are 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.
______
Responses of Daniel S. Miller to Additional Questions from Senator
Smith
Question 1. Isn't it true that no State has ever litigated to
verdict any enforcement action against the United States involving
alleged violations at an operational range? If your answer is not an
unqualified admission the statement is true, please provide exact
citation to every such case, including the date on which the verdict
was rendered.
Response. I do not know the answer to this question.
Question 2. Please explain, with as much particularity as you are
able, with citation to all relevant laws, regulations and case
authorities, your opinion that ``proposed section 2019 defines
munitions, explosives, unexploded ordinance and related constituents
[as] solid waste and thus subject to EPA regulation under RCRA as
hazardous waste'', given that proposed section 2019 only refers to such
material that travels OFF range.
Response. This question reflects minor errors in the transcript of
the hearing, and misapprehends my testimony. What I said on July 9 was
``Proposed section 2019 defines when munitions, explosives, unexploded
ordinance and related constituents are solid wastes and thus subject to
EPA regulation under RCRA as hazardous wastes.'' From the wording of
your question and from the wording of proposed section 2019, I infer
that you understood me to say that section 2019 defines any munitions,
explosives, unexploded ordinance and related constituents that are or
have been deposited, incident to their normal and expected use, on an
operational range as solid waste. In fact, as I explained at the
hearing, under section 2019, munitions, explosives and the like can
only be solid wastes in extremely limited circumstances. And that is
precisely the States' concern.
By substantially narrowing the statutory definition of solid waste,
section 2019 may preempt state and EPA authority to regulate the
investigation and cleanup of used or fired munitions and related
constituents. Such munitions and related constituents pose significant
risks to human health and the environment at thousands of former
military ranges across the country. In addition to the obvious
explosive hazard from unexploded ordnance, these wastes may cause
significant soil and groundwater contamination. For example, the Wall
Street Journal recently reported on widespread perchlorate
contamination from various defense and defense contractor
facilities.\1\
---------------------------------------------------------------------------
\1\ A copy of the article, which appeared on December 16, 2002, is
attached.
---------------------------------------------------------------------------
In addition to the sites mentioned in the Journal article, there is
increasing evidence that munitions on active ranges are causing
groundwater contamination. Perchlorate from military training
activities at Aberdeen Proving Grounds and Massachusetts Military
Reservation has contaminated municipal drinking water wells near those
bases, forcing closure of the wells.[add cite to newspaper articles]
Perchlorate contamination associated with military training activities
has been found at other sites as well.\2\ Section 2019 would likely
preempt states' authority to protect their citizens from groundwater
contamination in these cases. The states should not be preempted from
taking measures to protect their citizens and their groundwater
supplies, nor from requiring measures to reduce or eliminate explosive
hazards on lands no longer under military jurisdiction. As discussed in
my written statement, and in the answer to question number 4, below,
the military has simply provided no evidence that such state authority
has or would adversely impact readiness.
---------------------------------------------------------------------------
\2\ See Baltimore Sun article of October 3, 2002, and November 13,
2002 (attached), and Exhibits 9 and 10 of my July written testimony
before your committee.
---------------------------------------------------------------------------
My oral statement briefly explained why section 2019 likely
preempts state and EPA authority over munitions and related
constituents not just at operational ranges, but in nearly all
circumstances. I provided a more detailed analysis of this issue in my
written testimony, reproduced below:
The change in [RCRA's] 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.'' [42 U.S.C.
Sec. 6961] Thus, the scope of the 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. [Department of Energy v. Ohio, 503
U.S. 607 (1992).] By re-defining ``solid waste'' in a very limited
fashion, DOD's proposed amendment will likely preempt state authority
over munitions, explosives and the like not only at operational ranges,
but--contrary to DOD's assertions--also at FUDS [Formerly Used Defense
Sites], at DOD sites other than ranges, and even at private defense
contractor sites.
Under section 2019(a)(1), munitions are solid wastes only under the
following circumstances: (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 addressed.
Under this definition, munitions that were deposited on an
operational range and simply remain there after the range closed or was
transferred are not solid wastes, 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 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.
Proposed section 2019(a) also likely overrides 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), 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 section 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.
(Emphasis in original, footnotes omitted, brackets added.)
Question 3. Isn't the implication of your testimony misleading that
``proposed section 2019 defines munitions, explosives, unexploded
ordinance and related constituents [as] solid waste and thus subject to
EPA regulation under RCRA as hazardous waste'', because proposed
section 2019 only refers to such material that travels OFF range, and
therefore the military would be greatly assisted by this clarification
in terms of such material that stays ON an operational range?
Response. As with the previous question, this question implies that
I testified section 2019 defines any munitions, explosives, unexploded
ordinance and related constituents as solid waste and thus subject to
EPA regulation under RCRA as hazardous waste. And as explained in the
answer to the previous question, my testimony regarding section 2019 is
quite different. Far from defining all, or nearly all, used or fired
munitions to be solid wastes, section 2019(a)(1) excludes nearly all
used or fired munitions, etc., from the statutory definition of solid
waste. This is not a ``clarification,'' but a reversal of existing law.
As noted in my written testimony, section 2019(a)(2) appears to
provide a broad exemption for munitions, etc. wholly unrelated to their
use on ranges. This provision excludes explosives, unexploded ordnance,
munitions, munitions fragments, or constituents thereof that are used
in research, development, testing, and evaluation of military
munitions, weapons, or weapon systems. Section 2019(a)(2) appears to
exempt not only munitions, etc. that are used in the ways just
described, but any munitions of that type. Under section 2019(a)(2),
even wastes from the manufacture of explosives are excluded from the
definition of solid waste.
To summarize, I interpret section 2019 to exclude from RCRA's
statutory definition of solid waste munitions, explosives, unexploded
ordnance and related constituents that:
<bullet> Have been deposited, incident to their normal and
expected use, on an operational range, and remain on an operational
range;
<bullet> Have been deposited, incident to their normal and
expected use, on an operational range, and remain there, even after the
range is no longer operational, and even after the range is no longer
in Federal ownership (DOD estimates that it has transferred
approximately 16 million acres of former ranges contaminated with such
munitions out of Federal ownership or to other Federal agencies);
<bullet> Have been deposited off an operational range, where the
deposit was not incident to their normal and expected use (e.g,
contamination from ammunition washout, as described above);
<bullet> Have been deposited, incident to their normal and
expected use, off an operational range, and are promptly rendered safe
or retrieved;
<bullet> Migrate off an operational range and are ``addressed''
under CERCLA; or
<bullet> Are of a type that is used in training or research,
development, testing and evaluation of military munitions, weapons, or
weapon systems.
Together, paragraphs (1) and (2) of section 2019(a) create a 180
degree change from the current law. Presently, discarded military
munitions are statutory solid wastes under RCRA. To explain why, a
brief explanation of the history of military munitions' status under
RCRA is helpful:
<bullet> RCRA contains a broad statutory definition of solid waste
and hazardous waste. Statutory hazardous wastes area a subset of
statutory solid wastes. Statutory hazardous wastes may be subject to
RCRA's corrective action (cleanup) authorities and to clean up under
RCRA's imminent and substantial endangerment provisions. Statutory
solid wastes may be subject to clean up under RCRA's imminent and
substantial endangerment provisions.
<bullet> RCRA directs the Environmental Protection Agency to
define a subset of statutory solid and hazardous wastes as regulatory
solid and hazardous wastes. Regulatory hazardous wastes are a subset of
regulatory solid wastes, and are subject to the cleanup authorities
described above, and are also subject to RCRA's permitting requirements
and the full panoply of RCRA regulations governing the safe generation,
storage, treatment, transportation and disposal of hazardous waste.
<bullet> In 1979, a Federal district court held that military
munitions were not statutory solid wastes. Romero-Barcelo v. Brown, 478
F. Supp. 646 (D. Puerto Rico 1979).
<bullet> In 1992, Congress overturned the Romero-Barcelo decision
when it passed the Federal Facility Compliance Act, Pub. L. No. 102-
386. In that Act, Congress directed EPA to promulgate regulations
defining when military munitions become regulatory hazardous wastes. 42
U.S.C. Sec. 6924(y) Because regulatory hazardous wastes are a subset of
statutory solid wastes, this means that military munitions are
statutory solid wastes if they meet the statutory definition, i.e., if
they have been ``discarded.'' See 42 U.S.C. Sec. 6903(27). In crafting
this provision, the Conference Committee rejected a Senate proposal
that would have allowed DOD to ``self-regulate'' munitions under RCRA.
H. Conf. Rep. No. 102-886, at 28-29. Thus, in passing the Federal
Facility Compliance Act, Congress intended that states and EPA regulate
the management of waste munitions.
<bullet> In 1995, EPA published its proposed ``munitions rule'' in
the Federal Register. 60 Fed. Reg. 56468. Among other things, EPA
proposed that munitions used for their intended purpose (including
research, development, testing and training) are not regulatory
hazardous wastes. Id. at 56492.
<bullet> In the proposed munitions rule, EPA also proposed to
define when used or fired military munitions would be statutory solid
wastes. Id. EPA proposed that munitions discharged during military
activities at ranges would be statutory solid wastes when the munitions
were left in place at the time the range closed or was transferred out
of DOD control. EPA also proposed that this provision would terminate
upon DOD's promulgation of a rule governing the cleanup of munitions on
closed and transferred ranges, and that DOD's rule would supersede all
RCRA authority over such munitions. Id.
<bullet> Some commenters on the proposed rule noted that the
proposal to ``sunset'' regulation of discharged munitions as statutory
solid wastes upon promulgation of a DOD rule directly conflicted with
the Federal Facility Compliance Act, and that EPA had no authority to
preempt state authority to regulate discharged munitions. Commenters
also argued that DOD had no authority to promulgate such a rule.
<bullet> EPA's final munitions rule contained the proposal that
munitions used for their intended purpose are not regulatory hazardous
wastes. 62 Fed. Reg. 6654 (Feb. 12, 1997), codified at 40 CFR
Sec. 266.202.
<bullet> The final munitions rule postponed action on the proposal
to define when discharged munitions would be statutory solid wastes, as
well as the sunset provision. Id. at 6632. EPA's decision to postpone
action was based partly on the comments objecting it had no authority
to preempt state authority, and partly on the fact that DOD had not
promulgated its ``range rule.'' Id. EPA stated that it would further
evaluate the legal arguments, and would also evaluate DOD's proposed
range rule; if DOD failed to promulgate the rule, or if EPA found the
rule to be insufficiently protective, EPA stated it would be prepared
to address the issue under Federal environmental laws. Id. EPA's
decision to postpone this provision does not mean that discharged
munitions on ranges are not statutory solid wastes; as noted above,
under the Federal Facility Compliance Act, if such munitions are
discarded, they are statutory solid wastes.
<bullet> Later in 1997, DOD published its proposed range rule
addressing cleanup of munitions on closed and transferred ranges in the
Federal Register. 62 Fed. Reg. 50796 (Sept. 27, 1997). Again, states
and others commented that DOD did not have statutory authority to
promulgate such a rule, and that in passing the Federal Facility
Compliance Act, Congress had intended for states and EPA to oversee
cleanup of munitions on closed and transferred ranges.
<bullet> In 2000, 24 Attorneys General sent a letter to the Office
of Management and Budget, requesting that OMB disapprove DOD's proposed
range rule. The Environmental Council of the States also adopted a
resolution opposing the proposed rule.
<bullet> DOD recalled the proposed rule from OMB in November 2000,
and committed to engage the states and EPA to find an acceptable way to
manage munitions response actions.\3\
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\3\ Over the past 18 months, several states (Colorado, Alaska,
California and Illinois) representing State organizations (National
Association of Attorneys General, Environmental Council of the States,
and the Association of State and Territorial Solid Waste Management
Officials), EPA, DOD, and civilian federal agencies have been engaged
in discussions to find mutually acceptable ways to conduct munitions
response actions at sites other than operational ranges. The charter
for this group (the ``Munitions Response Committee'') states that one
of the desired outcomes is development of collaborative decision-making
processes for munitions response actions. The charter also states that
these collaborative processes will (subject to reservation of rights
and dispute resolution provisions) afford the states the opportunity to
review and approve the adequacy of munitions response actions.
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Thus, the current state of the law is that used or fired munitions
and related constituents on ranges are statutory solid wastes if they
are discarded.
As to whether military readiness would be greatly assisted by
enacting section 2019, I do not think that it would. As I stated in my
oral and written statements, I am not aware of any instances in which
the application of RCRA has adversely impacted readiness.
Question 4. In light of the very compelling testimony of the
generals and admiral, which you heard, as to the urgent need for these
minor clarifications in the law, and in light of the absence of
enforcement actions brought by states involving operational ranges, why
do you still oppose the RRPI's RCRA and CERCLA provisions for
operational ranges? Would you even oppose these two proposals if there
were a 3 or 5 year sunset provision attached?
Response. The short answer is that we oppose these amendments
because they likely preempt state and EPA authority to require the
cleanup of military munitions and related constituents in virtually all
circumstances, with no corresponding benefit to military readiness. We
would oppose them even with a sunset provision.
With all due respect to the Generals and the Admiral, nowhere in
their testimony did they cite even one instance in which a state or EPA
has taken action under CERCLA or RCRA that had any impact on military
readiness whatsoever. As far as I am aware, DOD as a whole has failed
to cite any cases in which RCRA or CERCLA have adversely impacted
readiness. And if such a case ever occurred, both RCRA and CERCLA allow
DOD to seek case-by-case exemptions from their requirements.
DOD's entire argument for preempting state and EPA authority under
these laws is premised on the fact that some environmental groups and
Alaskan Native Tribes filed a citizen suit regarding Ft. Richardson.
The State of Alaska is not a party to this suit. According to General
Keane's testimony:
The Army at Fort Richardson, Alaska, is currently facing a lawsuit
alleging violations of the Clean Water Act, RCRA, and CERCLA associated
with firing munitions at Eagle River Flats range. The RCRA allegation
is that munitions fired into or onto Eagle River Flats are RCRA
statutory solid wastes that present an imminent and substantial
endangerment to health or the environment. The CERCLA allegations are
that the act of firing munitions onto an operational range and the
continued presence of those munitions on the range constitute a release
of hazardous substances potentially requiring reporting,
characterization, and remediation.
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. Live-fire training during
the remediation would be impossible, and the only mortar and artillery
impact area at Fort Richardson would be lost to training. The 172d
Infantry Brigade would be unable to conduct a large portion of its
mission essential live-fire training operations.
If courts agree with the plaintiff, then live-fire training and
testing operations at every Army range (more than 400) could be subject
to CERCLA response requirements. Further lawsuits could compel the
Environmental Protection Agency and state regulators in all U.S.
regions to enforce the same standards on other military ranges. These
findings would not only dramatically impact the readiness of the 172d
Infantry Brigade in Alaska, but the entire Department of Defense.
I disagree with General Keane's testimony in several respects.
First, there is no RCRA imminent and substantial endangerment
allegation in the Ft. Richardson citizen suit. Plaintiffs in that suit
did allege violation of an Alaska statutory provision that prohibits
pollution.\4\ 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.\5\ Thus, if this case were
decided adversely to the Army, it would not set any precedent regarding
RCRA.
---------------------------------------------------------------------------
\4\ Plaintiff's Amended Complaint for Declaratory and Injunctive
Relief, para 29, Alaska Community Action on Toxics, v. United States,
A02-0083 CV, filed June 26, 2002. 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. In paragraph 29, plaintiffs allege
that tne Army's violation of Alaska Statutes Sec. 46.03.710 constitutes
a violation fo RCRA's vaiver 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.''
\5\ See Plaintiffs' Amended Complaint, supra note 3.
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Even if General Keane's characterization of the plaintiff's
complaint were correct, the remainder of his testimony on this point is
mere speculation without any basis in fact. I would agree that if the
court in this case held that munitions used for their intended purpose
are statutory solid wastes under RCRA or hazardous substances under
CERCLA, they would potentially be subject to corrective action or
remediation. However, no remediation would be required if the munitions
did not pose a risk to human health or the environment. Alaska
environmental officials who have been involved in oversight of the
CERCLA investigation and cleanup at Ft. Richardson have concluded that,
aside from certain white phosphorous contamination that the Army is
remediating, the remaining fired munitions at the Eagle River Flats
area of Ft. Richardson do not warrant an environmental response at this
time.
Assuming that some remediation were required, there is no evidence
whatsoever that it would make live-fire training in the Eagle River
Flats area impossible. 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.
States have regulated cleanup of contaminated Department of Energy
nuclear weapons facilities and Department of Defense sites for decades.
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.\6\
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\6\ As I noted in my written testimony, 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.'' [66 Fed. Reg. 50807
(Oct. 4, 2001)] The entire finding consists of three paragraphs.
President Clinton made similar findings annually from 1996 through 2000
regarding this same matter to prevent the release of classified
information. 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.''
To the extent the military has found the exemption process
burdensome, it appars from General Williams' testimony that that is the
result of agency practice, not the requirements of the law. See
transcript of July 9, 2002 hearing at 22-24.
Question 5. In your written testimony you stated that the
likelihood of conflict between RCRA and CERCLA and military readiness
``is remote''. Are you unfamiliar with the two cases the military is
currently facing, and the other cases where RCRA and CERCLA were
applied at private skeet ranges? Don't those cases dramatize the
urgency of the problem?
Response. I assume that one of the cases you are referring to is
the citizen suit filed regarding Ft. Richardson discussed in the
previous answer. I don't know what the other case you have in mind is.
I am familiar with one case that held fired lead shot at a gun club
constituted a solid waste under RCRA. Connecticut Coastal Fishermen's
Association v. Remington Arms Co., Inc., 989 F.2d 1305 (2d Cir. 1993).
I disagree that either of these cases demonstrates an urgent need to
preempt state and EPA authority over cleanup of nearly all munitions-
related environmental contamination, regardless of whether such
contamination is at an active range. If anything, the Remington Arms
case suggests precisely the opposite: it was decided nearly 10 years
ago, but the Department of Defense has yet to identify a single
instance in which RCRA has adversely impacted readiness.
The underlying premise of this question 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 or EPA will impose remedial requirements that will
conflict with military readiness. As indicated in the response to the
previous question, there is no evidence to suggest this is the case.
Cleanup of munitions-related contamination at former military ranges
now in private ownership does not impact military readiness in any way.
Cleanup of munitions-related contamination at defense contractor sites
does not impact military readiness in any way. Yet, the proposed
amendments would likely preempt state and/or EPA authority over many of
these situations.
The amendments would also likely preempt state and EPA authority
over cleanup of munitions-related contamination at current military
facilities. For example, as mentioned in my written testimony, it would
likely preempt Colorado and New Mexico from regulating the cleanup of
explosives-related contamination at the Pueblo Chemical Depot and the
Los Alamos National Lab, respectively.\7\ In neither case is the
state's action adversely impacting readiness.
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\7\ To quote from my testimony at page 13: At Pueblo chemical Depot
in Colorado, ammunition washout created a plume of TNT-contaminated
groundwater that has traveled over 2 miles, and has gone off the Depot
to contaminate drinking water wells nearby. Under section
2019(a)(1)(A), this plume of TNT-contaminated groundwater would not be
considered a solid water (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.
---------------------------------------------------------------------------
DOD simply has presented no evidence that application of these laws
has ever actually adversely impacted readiness. Even with respect to
operational ranges, General Keane's testimony, as previously mentioned,
does not describe any instances in which RCRA or CERCLA cleanup
requirements have adversely impacted readiness. Instead, he speculates
that remedial measures will be required in the Eagle River Flats area
of Ft. Richardson, and that those measures would necessarily adversely
impact readiness.
Compare General Keane's testimony with that of General Fogelsong:
UXO and the disposal of residue material (primarily scrap
metal) on air-to-ground ranges is one area where we have
extensively investigated our practices and policies. UXO and
range residue (used targets, inert ordnance, etc.) physically
occupy only a small part of any air-to-ground range, but its
presence is an increasingly expensive problem. The costs
associated with clearing closed ranges have led us to the
conclusion that we need to plan and manage for the entire life-
cycle of a range.
The Air Force first started clearing ordnance from active
ranges in the late 1940's. Active range clearance not only
provides for safe target area operations, but also provides
airfield-recovery training for our Explosive Ordnance Disposal
technicians. Air Force policy requires that active air-to-
ground ranges be cleared on a quarterly, annual, and 5-year
basis at varying distances from each target. Our currently
scheduled UXO and residue removal program, along with
modifications to our range-clearing practices, will ensure
long-term range sustainability and the safety of personnel on
the range. Our ultimate goal is to manage our ranges
effectively and efficiently throughout the life-cycle process
providing for sustainable operations, safe and effective UXO
management and long-term environmental stewardship.
When faced with groundwater contamination problems, environmental
regulators often consider ``source removal'' as part of a comprehensive
cleanup strategy. The Air Force's forward-looking range clearance
policies could constitute source removal at Air Force ranges where
munitions constituents is causing groundwater contamination. Combined
with groundwater treatment systems, the Air Force's own sustainable
range management practices may be sufficient to address such
groundwater contamination. My point here is not to say that the Air
Force has developed a ``one size fits all'' solution to munitions-
related contamination at active ranges, but simply to point out that
there is no inherent conflict between range use and environmental
remediation.
There is, as noted in response to question number 1, increasing
evidence that operational military ranges can cause significant
groundwater contamination. There is no evidence that addressing this
contamination under RCRA or CERCLA will adversely impact readiness. We
recognize the importance of maintaining military readiness. But we
object to these amendments, which would likely preempt our authority,
and that of EPA, in virtually all cases where munitions and related
constituents are threatening human health or the environment, even
though exercising such authority will seldom, if ever, have any impact
on readiness whatsoever. And again, in the event such a conflict does
occur, the Department of Defense may avail itself of the exemption
provisions that currently exist in CERCLA and RCRA.
Question 6. Isn't it true that the purpose of the 1918 Migratory
Bird Treaty Act was to stop the intentional hunting of migratory birds
for commercial reasons such as feathers for ladies' hats? The recent
D.C. District Court case held that the MBTA as written prohibits both
intentional and unintentional harm to migratory birds. Isn't this a
perversion of congressional intent? Wouldn't the RRPI merely restore
the original intent of the Act?
Response. I believe that this question was erroneously directed to
me. I did not testify regarding the Migratory Bird Treaty Act, and do
not know the answer to these questions.
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Statement of Stanley Phillippe on behalf of the Association of State
and Territorial Solid Waste Management Officials (ASTSWMO)
Good afternoon. I am Stanley Phillippe and I am the chair of the
Federal Facilities Research Subcommittee of the Association of State
and Territorial Solid Waste Management Officials (ASTSWMO). Thank you
for inviting ASTSWMO to testify concerning recent Department of Defense
proposed amendments to the Resource Conservation and Recovery Act
(RCRA), and to the Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA), as those relate to military range
activities. ASTSWMO is a non-partisan, non-profit association which
represents the collective interests of waste program directors of the
nation's States and Territories. Our membership is drawn exclusively
from State employees who deal daily with the many management and
resource implications of the State waste management and remediation
programs they direct. ASTSWMO's membership includes the State
regulatory program managers for solid waste, hazardous waste,
underground storage tanks, and waste minimization and recycling
programs as well as State cleanup and remedial program managers. Among
those are State experts specializing in providing regulatory support to
Federal Facilities, primarily in situations of base closure and
remediation of Formerly Used Defense Sites. We deal with active
military facilities as well, particularly with those industrial-like
activities which may require permits under RCRA. As the day-to-day
implementers of the State and Federal cleanup programs, we think we can
offer a unique perspective to this dialog.
I would also like to commend this committee and the Senate Armed
Services Committee for your measured, careful approach to these
suggested amendments. Our Association has strongly recommended that any
action that Congress might consider along the lines suggested by the
Department of Defense first be scrutinized and openly debated in the
committees of primary jurisdiction over the environmental laws. We are
very glad that the bipartisan support for that consideration has
resulted in this Senate hearing and thank you for your careful
attention to this very important matter.
I am here today to tell you of our Association's opposition to the
amending language for RCRA and CERCLA proposed by the Department of
Defense, and to urge that you oppose these changes to these key
environmental statutes. But, I am also here to assure you of our
Association members' strong and continuing support for ensuring the
readiness of our Armed Forces. Despite our criticism of the specific
changes DoD has proposed to RCRA and CERCLA, we believe that State
regulators have consistently worked with DoD and the Military Services
to resolve range-related issues dealing with those statutes, and that
together we have found workable solutions in the case of operating,
active ranges.
That said, our examination of the proposed legislative April 2002
package DoD has titled the ``Readiness and Range Preservation
Initiative'' leads us to question both the need and wisdom for the
proposed changes to RCRA's definition of ``solid waste'' and to
CERCLA's definition of a ``release''.
<bullet> As to the question of the compelling need for such
changes, we are unaware of cases where State regulators have adversely
impacted readiness by seeking compliance with RCRA. Among the
supporting rationale DoD has released with the proposed legislative
package, we only found a single reference to possible problems which
could come from a citizen suit challenging RCRA compliance at Fort
Richardson, Alaska. We have been told there is a similar citizen suit-
generated RCRA situation with range use in Puerto Rico. Frankly, on
their face, these are not real barriers, but only potential problems of
doubtful probability, dependent upon decisions to be made in Federal
courts. The absence of any report of existing situations involving
adverse RCRA impacts on readiness seems to confirm our belief that
normal RCRA regulation has not impeded military training on operational
ranges, and is not likely to do so. A report last month from the
General Accounting Office focused on encroachment issues facing DoD.\1\
This report did not identify RCRA or CERCLA as presenting problems for
DoD's training mission. There will be peripheral issues that may arise
and several States have worked with military installations to address
certain issues that are the result of range use through permits or best
practices. For example, open burning of excess propellents left over
from live fire may be managed under permit in order to ensure that
releases are properly controlled. However, those kinds of activities
have no effect on the conduct of the range firing itself.
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\1\ United States General Accounting Office, ``Military Training:
DOD Lacks a Comprehensive Plan to Manage Encroachment on Training
Ranges'' (GAO-02-614), June 2002.
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<bullet> As a practical matter, the application of State authority
under RCRA to operating ranges would become necessary when a State
believed intervention was necessary to protect the public from
``imminent and substantial endangerment'' as defined in Section 7003 of
the statute. Surely, no responsible DoD official would tolerate such a
situation. Our experience is that DoD and the Military Services give
scrupulous attention to enforcing safety during inherently dangerous
live-fire training.
<bullet> A more common State interest is the application of RCRA
and State hazardous waste statutes to clean up requirements for closed
and closing ranges that have been or will be transferred out of Federal
ownership for civilian use. It is our view that these cleanup
requirements have nothing to do with current training activities and do
not potentially endanger the effectiveness of training. However, the
proposed DoD changes to the statutory definitions of ``solid waste''
and to ``releases'' would arguably not only affect the application of
the statute to operating ranges, but by narrowing the definitions used
throughout the rest of the statutes, confuse the application of the
definitions in other parts of the statutes. These definitions are
critical to issues such as jurisdictional roles and State authority
over such cleanups. Our experience is that RCRA definitional issues are
very complex, and require close examination. We believe our State legal
colleagues, represented here by the National Association of Attorneys
General, are best equipped to deal with those arguments, but as the
State implementers of hazardous waste and cleanup laws, we believe that
this is one of those cases where the first principle is to ``do no
harm''. These suggested changes to RCRA and CERCLA reach beyond DoD's
immediate needs and could affect our later jurisdiction over cleanup of
unexploded ordnance and other environmental hazards that may have been
caused by range use. Instead of seeking exemptions from RCRA and
CERCLA, we think DoD and the Military Services should concentrate their
efforts on prevention of the migration of munitions and explosive
related wastes by pathways that will affect human health and the
environment. In the long run, this approach will do much more to meet
their needs for sustainable ranges.
<bullet> Even if there is a situation where the Department of
Defense should reach an absolute barrier caused by RCRA or CERCLA, we
would note that there is still extraordinary Presidential authority to
suspend application of these statutes for national interests, [i.e.,
RCRA Section 6001 or CERCLA Section 120(j)(1)] so that essential
training activity could be continued. We are not suggesting that use of
these authorities should become routine, nor that they be used lightly.
Like all extraordinary powers, they must be used with respect and
circumspection. But the fact remains that they are available. Congress
has already provided remedies for extraordinary circumstances, and if
they are insufficient, a much stronger justification needs to be put
forth.
Let me close with the thought that the proposed changes to RCRA and
CERCLA are not justified by any demonstration that RCRA or CERCLA have
adversely impacted readiness, are unnecessary, and certainly may have
undesirable consequences for the nation's primary hazardous waste and
remediation statutes. I want to reiterate our desire to assist the
Department of Defense and Military Services in more practical ways. We
will continue to work with them to assist in making effective use of
their active range resources, and to improve the likelihood that those
ranges will continue to be sustainable into the indefinite future. Like
any other citizens, 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 us, and to all citizens, and we will work actively with
their representatives to find ways to make range operations safe and
workable.
Thank you for requesting our testimony regarding this important
legislation. I would be happy to respond to any questions you might
have regarding our views.
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Responses of William H. Hurd to Additional Questions from Senator Smith
Question 1. Are the emergency exemptions provided in some
environmental laws sufficient to address the readiness concerns raised
by DoD?
Response. With respect to RCRA and CERCLA, which were the focus on
my testimony, I am of the opinion that the emergency exemptions are not
sufficient to address the readiness concerns raised by DoD.
Question 2. Please give us your perspective on Mr. Miller's
testimony on the viability of Presidential waivers under RCRA and/or
CERCLA.
Response. Mr. Miller has expressed the view that the procedures for
obtaining Presidential waivers are ``not burdensome.'' I disagree.
To elaborate, Mr. Miller says: ``All that is required is a finding
that doing so [granting a Presidential exemption] is necessary for
national security or is in the paramount interest of the United
States.'' Written Testimony of Daniel S. Miller, p. 4 (emphasis added).
Contrary to his suggestion, that legal standard is not a low threshold,
but a very high one. Moreover, Presidential findings are not lightly
made. A substantial amount of staff work must be performed by the
Department of Defense before approaching the President to request such
a finding. Mr. Miller ignores that burden. He also ignores the fact
that, as Commander-in-Chief, the President must necessarily focus on
issues of strategic and global importance. This is especially so in
time of national crisis. He should not be required to turn his
attention from those weighty concerns in order to give individual base
commanders or training officers permission to do their job in an
effective manner.
Mr. Miller cites the RCRA exemption process, 42 U.S.C.
Sec. 6961(a), as an example of a procedure that he believes supports
his position. Written Testimony of Daniel S. Miller, p. 4 n6. But an
examination of that statute shows additional reasons why the current
process is burdensome and insufficient. First, a Presidential exemption
shall not exceed 1 year. At the end of that period, a new 1-year
exemption can be made, but only if the President makes a new
determination, thereby repeating much of the burden imposed by the
original exemption.
Second, in some cases under RCRA, no Presidential exemption can be
granted at all. Even where the President determines that the exemption
is ``in the paramount interest of the United States,'' the statute says
that ``[n]o such exemption shall be granted due to a lack of
appropriation unless the President shall have specifically requested
such appropriation as part of the budgetary process and the Congress
shall have failed to make available such requested appropriation.''
Sec. 6961(a).
In a world where military needs may change overnight, this
limitation is altogether unreasonable. The effect of the statute is
that training officers and base commanders must predict what their
mission will be long in advance of being assigned that mission or even
knowing the events that led to that assignment. They must also
ascertain how the accomplishment of that mission may be impeded by
RCRA, and make a timely request through their chains-of-command for any
funds they will need to perform that new mission in a manner that is
RCRA-compliant. Similar prescience is also required of all those who
prepare military budget requests for transmittal by the President to
Congress. Requirements such as these are not merely burdensome; they
are impossible.
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