TESTIMONY
BEFORE THE SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE
HEARING
ON S. 2225 AND THE READINESS AND RANGE PRESERVATION INITIATIVE
JAMIE
RAPPAPORT CLARK
Senior
Vice President for Conservation Programs
National
Wildlife Federation
July
9, 2002
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.
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:
·
The
Armed Services’ own readiness data does not show that environmental laws have
significantly affected training readiness.
·
DOD
officials themselves admit that population growth around military installations
is responsible for past and present encroachment problems.
·
The
Armed Services have never assessed the overall impacts of encroachment on
training costs.
·
DOD’s
readiness reports show high levels of training readiness for most units. In those few instances of when units
reported lower training readiness, DOD officials rarely cited lack of adequate
training ranges, areas or airspace as the cause.
·
DOD
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.
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.
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:
·
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?
·
What
strategies have been employed by FWS to protect migratory birds from harm
caused by incidental takings? What
improvements are needed? Can we build
upon these strategies, or is an entirely new approach needed?
·
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?
·
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?
·
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?
·
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?
·
What
other policy approaches are available to regulate incidental take aside from a
permitting program? How much funding
would these approaches require?
·
What
has been the role of the states in implementing the MBTA? What role should they play?
·
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?
·
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?
·
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.
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.