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.

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:

· 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.

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:

· 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.

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.