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86-854 PS 2003

H.R. 1835, ‘‘NATIONAL SECURITY 

READINESS ACT’’

LEGISLATIVE HEARING

BEFORE THE

COMMITTEE ON RESOURCES 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

Tuesday, May 6, 2003

Serial No. 108-18

Printed for the use of the Committee on Resources

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house 

or 

Committee address: http://resourcescommittee.house.gov 

(II)

COMMITTEE ON RESOURCES 

RICHARD W. POMBO, California, Chairman 

NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska 

W.J. ‘‘Billy’’ Tauzin, Louisiana 

Jim Saxton, New Jersey 

Elton Gallegly, California 

John J. Duncan, Jr., Tennessee 

Wayne T. Gilchrest, Maryland 

Ken Calvert, California 

Scott McInnis, Colorado 

Barbara Cubin, Wyoming 

George Radanovich, California 

Walter B. Jones, Jr., North Carolina 

Chris Cannon, Utah 

John E. Peterson, Pennsylvania 

Jim Gibbons, Nevada, 

Vice Chairman 

Mark E. Souder, Indiana 

Greg Walden, Oregon 

Thomas G. Tancredo, Colorado 

J.D. Hayworth, Arizona 

Tom Osborne, Nebraska 

Jeff Flake, Arizona 

Dennis R. Rehberg, Montana 

Rick Renzi, Arizona 

Tom Cole, Oklahoma 

Stevan Pearce, New Mexico 

Rob Bishop, Utah 

Devin Nunes, California 

VACANCY 

Dale E. Kildee, Michigan 

Eni F.H. Faleomavaega, American Samoa 

Neil Abercrombie, Hawaii 

Solomon P. Ortiz, Texas 

Frank Pallone, Jr., New Jersey 

Calvin M. Dooley, California 

Donna M. Christensen, Virgin Islands 

Ron Kind, Wisconsin 

Jay Inslee, Washington 

Grace F. Napolitano, California 

Tom Udall, New Mexico 

Mark Udall, Colorado 

Anı ́bal Acevedo-Vila ́, Puerto Rico 

Brad Carson, Oklahoma 

Rau ́l M. Grijalva, Arizona 

Dennis A. Cardoza, California 

Madeleine Z. Bordallo, Guam 

George Miller, California 

Edward J. Markey, Massachusetts 

Rube ́n Hinojosa, Texas 

Ciro D. Rodriguez, Texas 

Joe Baca, California 

Betty McCollum, Minnesota

Steven J. Ding, Chief of Staff 

Lisa Pittman, Chief Counsel 

James H. Zoia, Democrat Staff Director 

Jeffrey P. Petrich, Democrat Chief Counsel 

(III)

C O N T E N T S 

Page

Hearing held on May 6, 2003 ................................................................................. 1

Statement of Members: 

Calvert, Hon. Ken, a Representative in Congress from the State of 

California, Prepared statement of ............................................................... 3 

Dingell, Hon. John D., a Representative in Congress from the State 

of Michigan, Prepared statement of ............................................................ 6

Gallegly, Hon. Elton, a Representative in Congress from the State of 

California, Prepared statement of ............................................................... 4

Pombo, Hon. Richard W., a Representative in Congress from the State 

of California ................................................................................................... 1 

Rahall, Hon. Nick J. II, a Representative in Congress from the State 

of West Virginia ............................................................................................ 5

Statement of Witnesses: 

Bowdon, Major General William G., III, Commanding General, Marine 

Corps Base Camp Pendleton, California, U.S. Marine Corps ................... 21

Prepared statement of ............................................................................... 22

Response to questions submitted for the record ..................................... 138

DiGiovanni, Colonel Frank C., Chief, Ranges, Airfields and Airspace, 

Operation and Requirements Division, Air Combat Command, U.S. 

Department of the Air Force ........................................................................ 31

Prepared statement of ............................................................................... 32

Response to questions submitted for the record ..................................... 140

Fil, Brigadier General Joseph F., Jr., Commanding General, National 

Training Center and Fort Irwin, California, U.S. Department of the 

Army .............................................................................................................. 8

Prepared statement of ............................................................................... 10

Response to questions submitted for the record ..................................... 142

Hathaway, Rear Admiral Jeffrey J., Department of Homeland Security, 

United States Coast Guard .......................................................................... 34

Prepared statement of ............................................................................... 35

Response to questions submitted for the record ..................................... 147

Hogarth, Dr. William T., Assistant Administrator for Fisheries, National 

Marine Fisheries Service, National Oceanic and Atmospheric 

Administration, U.S. Department of Commerce ........................................ 86

Prepared statement of ............................................................................... 88

Response to questions submitted for the record ..................................... 147

Ketten, Dr. Darlene R., Senior Scientist, Biology Department, Woods 

Hole Oceanographic Institution ................................................................... 111

Prepared statement of ............................................................................... 113

Kunich, John C., Associate Professor of Law, Roger Williams University 

School of Law ................................................................................................ 117

Prepared statement of ............................................................................... 119

Manson, Hon. Craig, Assistant Secretary for Fish and Wildlife and Parks, 

U.S. Department of the Interior .................................................................. 81

Prepared statement of ............................................................................... 82

Response to questions submitted for the record ..................................... 155

Moeller, Rear Admiral Robert T., Deputy Chief of Staff for Operations/

Plans and Policy, U.S. Pacific Fleet, U.S. Navy ......................................... 15

Prepared statement of ............................................................................... 17

Response to questions submitted for the record ..................................... 163

Page

IV

Statement of Witnesses—Continued

Nachtigall, Dr. Paul E., Director, Marine Mammal Research Program, 

Hawaii Institute of Marine Biology, University of Hawaii ....................... 108

Prepared statement of ............................................................................... 109

Steuer, Karen, Senior Policy Advisor, National Environmental Trust ........ 123

Prepared statement of ............................................................................... 125

(1)

LEGISLATIVE HEARING ON H.R. 1835, TO 

AMEND THE ENDANGERED SPECIES ACT OF 

1973 TO LIMIT DESIGNATION AS CRITICAL 

HABITAT OF AREAS OWNED OR CONTROLLED BY THE DEPARTMENT OF 

DEFENSE, AND FOR OTHER PURPOSES. 

(‘‘NATIONAL SECURITY READINESS ACT’’) 

Tuesday, May 6, 2003

U.S. House of Representatives 

Committee on Resources 

Washington, DC 

The Committee met, pursuant to notice, at 2 p.m., in room 1324, 

Longworth House Office Building, Hon. Richard W. Pombo (Chairman of the Committee) presiding. 

Present: Representatives Pombo, Gilchrest, Jones, Gibbons, 

Walden, Osborne, Renzi, Cole, Pearce, Nunes, Rahall, Kildee, 

Faleomavaega, Abercrombie, Pallone, Christensen, Tom Udall, 

Mark Udall, Grijalva, Bordallo, and Rodriguez. 

STATEMENT OF HON. RICHARD POMBO, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF CALIFORNIA 

The CHAIRMAN. The Committee will come to order. 

In accordance with Resources Committee Rule 4(G)(1), only the 

Chairman and Ranking Member may make opening statements. If 

any members want to insert statements in the record, I ask unanimous consent that they be allowed to do so. Without objection, so 

ordered. 

You gentlemen just take a seat for the time being. We’re going 

to have a couple of opening statements and then we’ll go to the 

first panel. 

Today we are holding a hearing on H.R. 1835, the National Security Readiness Act, a bill that amends the Endangered Species 

Act and the Marine Mammal Protection Act. H.R. 1835 is a product of the Department of Defense Authorization Act for the upcoming fiscal year. 

The Department of Defense, in its reauthorization bill, proposed 

changes to laws under the jurisdiction of this Committee. The Administration proposed these same changes last year. However, the 

process was much different last year. The Committee on Resources 

waived its jurisdiction and was not involved in the decisionmaking 

2

process. Rather than do that again this year, I requested that this 

Committee maintain its authority over those provisions within our 

jurisdiction. I was joined in that decision by our Ranking Member, 

Mr. Rahall, and I believe many members applauded that decision. 

However, some members have questioned why we’re holding this 

hearing at the full Committee and not at the Subcommittee level. 

There are a number of reasons. First and foremost is timing. While 

I want our Committee to remain relevant to this process, time is 

not on our side. If we are to remain relevant, we need to move a 

bill by this Wednesday, as our colleagues on the Armed Services 

Committee begin their action on the larger ’04 reauthorization bill 

this Friday. 

For those of you who are not entirely happy with the bill that 

we are considering today, I must reiterate that the only way to 

maintain jurisdiction and relevancy in this process, as the Committee with expertise on these subjects, is for us to take action 

rather than the Armed Services Committee, which does not have 

our level of expertise. 

Secondly, legislation dealing with the Endangered Species Act 

has traditionally been held at full Committee. Since 1995, when 

the Republicans took control of the House and the Resources Committee became the primary Committee of jurisdiction over endangered species, this bill contains ESA amendments and therefore 

was held at the full Committee level. The majority of the ESA 

amendments contained in H.R. 1835 should be nothing new to 

most members on this Committee. This language was approved by 

the House last Congress. 

In brief, H.R. 1835 codifies a policy started in 1997 under the 

Clinton Administration, and brought forward by the current administration. It allows DOD to cooperate with the U.S. Fish and Wildlife Service and State wildlife departments in responsibly managing habitat, all the while providing the Administration the ability to base critical habitat determination on confirmed scientific 

data. 

Furthermore, H.R. 1835 clarifies the original intent of the ESA 

by providing balance to departments when they are confronted 

with having to weigh their primary missions up against mandates 

to protect species under the Act. 

While the bill also contains provisions which amend the Marine 

Mammal Protection Act, these too, for the most part, should not be 

new issues for members. The Subcommittee on Fisheries, Conservation, and Wildlife and Oceans has held a number of hearings 

on these issues. In addition, the proposed change to the definition 

of harassment was first suggested by the National Research Council in 2000, and H.R. 1835 contains the exact language recommended by both the Clinton and Bush administrations. 

Others might argue that we haven’t looked sufficiently at some 

of these changes in the bill. The Subcommittee on Fisheries, Conservation, Wildlife and Oceans has held three hearings on the reauthorization of the Marine Mammal Protection Act and has heard 

from 42 witnesses. Since the harassment definition was first proposed during the Clinton administration, this issue has been adequately aired at these hearings. This is not a new issue. 

3

The changes proposed to the Marine Mammal Protection Act in 

H.R. 1835 are based on scientific recommendations from the National Research Council and the Administration’s managing agencies, the Department of Commerce and Interior. The agencies have 

told us that these amendments will provide them with one standard, which they prefer. 

In addition, it will clarify certain provisions in the Marine Mammal Protection Act to allow them to better enforce and implement 

the law. If the agencies can better enforce the law, marine mammals will be better protected. 

I look forward to hearing from our distinguished witnesses today, 

and I recognize the Ranking Member, Mr. Rahall, for his opening 

statement. 

[The prepared statement of Mr. Calvert follows:]

Statement of The Honorable Ken Calvert, a Representative in Congress 

from the State of California 

Mr. Chairman, Ranking Member Rahall, and distinguished Members of the 

Committee, I am pleased and honored to have Major General William G. Bowdon, 

III, Commanding General of the Marine Corps Base Camp Pendleton testifying on 

behalf of the Marine Corps regarding the effect of encroachment and the impact it 

has on the training and readiness requirements of our Marines. While only a small 

part of Camp Pendleton is in my district, the issue of encroachment and the ability 

of our military as a whole to train in a real-world environment is of great concern 

and a responsibility that I take very seriously. 

The National Security Readiness Act represents a crucial balance between the 

stewardship of our lands and the ability for our military to train for combat missions. The proposal is the result of years of collaboration between the Department 

of Defense, the Fish and Wildlife Service and many other stakeholders and I commend their hard work. 

The ability of our Armed Forces to achieve their mission and survive in combat 

depends directly on the quality of training they receive. We must provide for the 

best possible training environment, and encroachments have in fact degraded and 

continue to degrade our military’s capability to provide for realistic combat training. 

Our military ranges and operation areas are irreplaceable national assets; their primary role is to help train our military forces and test equipment to sustain a strong 

defense. However, encroachment-induced restrictions are limiting realistic preparations for combat. Unrealistic training options or so-called ‘‘workarounds’’ that are 

used to satisfy regulatory rules designed for non-military activities are a ‘‘death-bya-thousand-cuts’’ approach to encroachment and access problems on our ranges. 

From 1992–2002, DoD has invested over $50 billion on environmental programs. 

Ecosystem management initiatives and species counts indicate that DoD is successfully managing and implementing environmental stewardship programs. It is clear 

that DoD is fully committed to effectively managing our natural resources. Additionally, military training has proven compatible with healthy ecoststems, endangered 

species populations and in compliance with applicable law. 

In 2000, U.S. Fish and Wildlife Service (FWS) proposed to designate 57% of Camp 

Pendleton has critical habitat. Fortunately, the Marine Corps worked with Fish and 

Wildlife to develop a scientifically and legally based policy that precluded the need 

to designate vast training ranges as critical habitat that would effectively restrict 

almost two thirds of the base from military training use. Despite their hard work 

the compromise was challenged in court by special interest groups, causing Fish and 

Wildlife to withdraw the habitat designation rules in compliance with court dictates. 

Upon codifying existing FWS policy we can avoid similar attempts from special interests groups and allow DoD to cooperate with FWS to make critical habitat designation obsolete with the implementation of Integrated Natural Resources Management Plans. If this legislation is not passed, environmental litigation may still cause 

57% of Camp Pendleton to be designated at critical habitat. 

I believe that Integrated Natural Resources Management Plans present a viable 

alternative to critical habitat designation on our military training ranges. These 

management plans represent the very best of what can happen when government 

agencies work together. We must not impede on the military’s ability to train effectively and precisely. I urge the Members of this Committee to pass this legislation 

4

so that our nation’s greatest strength can continue to perform at the level that our 

citizens require. 

[The prepared statement of Mr. Gallegly follows:]

Statement of The Honorable Elton Gallegly, a Representative in Congress 

from the State of California 

Thank you Mr. Chairman for holding this hearing today on the National Security 

Readiness Act of 2003. As you know, I introduced this bill to amend the Endangered 

Species Act of 1973 and the Marine Mammal Protection Act of 1972 to allow the 

military to train and test weapons systems while still protecting the environment 

and endangered species. 

Military bases across the United States, including the two in my district, have 

stellar records on protecting the environment and endangered species. Under my 

bill, that will remain part of their mission. 

But the National Security Readiness Act recognizes that the primary mission of 

military bases is to prepare and protect the United States from our enemies now 

and in the future. We endanger the American people if we fail to allow our bases 

to train our military men and women and test new weapons systems. I believe the 

provisions in this bill will provide our bases the freedom they need to keep us secure. 

Section 2 of the National Security Readiness Act amends the Endangered Species 

Act to prohibit further designations of critical habitat for endangered species in military areas ‘‘’’ as long as an Integrated Natural Resources Management Plan has 

been prepared. It also requires regulatory agencies to consider national security concerns in addition to economic impact prior to designating areas of critical habitat. 

Critical habitats are designed to protect one species. Management plans take an 

entire area’s ecology into account to protect multiple species, which, after all, do not 

live in a bubble. It’s holistic medicine for the environment. 

The bill would not annul existing critical habitat designations, but it would permit 

the Secretary of the Interior to revise existing designations on military installations. 

No existing habitat could be revised, however, if it would result in the extinction 

of an endangered or threatened species. The Department of Defense (DOD) must 

still adhere to the Endangered Species Act. 

This language passed the House of Representatives as part of the National Defense Authorization Act last year. 

In addition, section 2 amends the Endangered Species Act to add ‘‘insofar as is 

practicable and consistent with their primary purposes’’ to ensure that the primary 

mission of an agency has been weighed when considering the designation of critical 

habitat. The bill also strikes ‘‘prudent and determinable’’ and inserts ‘‘necessary’’ in 

the ESA section that deals with designating critical habitat. This language change 

is needed to get the most value for species conservation by prioritizing the limited 

Federal resources devoted to the endangered species listing program. 

Section 3 of the National Security Act clarifies the definition of ‘‘harassment’’ of 

marine mammals in the Marine Mammal Protection Act to improve agency enforcement. The Secretaries of Commerce and the Interior have had difficulty prosecuting 

violators due to the requirement that they must first determine if the violator pursued, tormented or annoyed a marine mammal or marine mammal population. If 

the Secretary can make that initial finding, then the Secretary can make the second 

finding of whether the activity constitutes level A or level B harassment. In many 

cases the Secretaries have been unable to make the first finding and therefore have 

been unable to prosecute. 

This change was first proposed under the Clinton Administration and is endorsed 

by the National Research Council, which is within the National Academy of 

Sciences. 

Section 4 of the bill also exempts the DOD from the Marine Mammal Protection 

Act for national defense reasons—after it consults with the Secretary of Commerce 

and Interior. The exemption cannot be effective for more than two years. 

Finally, Section 5 of the National Security Act simplifies the procedure for the 

DOD and other parties to apply for an incidental take permit under the Marine 

Mammal Protection Act. The change would delete the ‘‘specific geographical area’’ 

and ‘‘small numbers’’ requirements and retain only the ‘‘negligible impact’’ finding. 

Again, this removes micromanagement of small areas of the environment and applies a holistic approach to the problem. 

This change was first proposed by the National Research Council as part of its 

2000 report. 

5

It is important to note that for the past 20 years, the Secretary, through the implementing regulations, has determined that if the negligible impact standard has 

been met then the small number standard has also been met. But then the Navy’s 

permit to use its Surveillance Towed Array Sensor System (SURTASS) Low Frequency Active (LFA) came under question in Court. The Court disagreed with the 

Secretary’s implementing regulations and required that the Secretary separately define ‘‘negligible impact’’ and ‘‘small numbers’’ and make separate findings on both 

the negligible impact standard and the small number standard. This ruling drastically limited where the Navy could test the SURTASS LFA system. 

I believe this bill will help alleviate many impediments to our militaries 

readiness. 

But I also believe it’s the beginning of the process. Mr. Chairman, as you know, 

I had introduced the Encroachment on Military Bases Prevention Act earlier this 

year, which included some of the provisions in this current bill. Two provisions from 

that bill were removed from the current bill that address important challenges facing the Point Mugu Naval Air Station and Vandenberg Air Force Base in my district. 

Specifically, my original bill would have amended the National Marine Sanctuary 

Act to prevent the Secretary of Commerce from designating a new national marine 

sanctuary, or expand the boundaries of a national marine sanctuary, into waters 

used for military readiness activities. This language would address NOAA’s proposed quadrupling of the Channel Islands National Marine Sanctuary into both 

Point Mugu’s and Vandenberg’s missile test ranges. 

Secondly, my original bill would have amended the National Park System General 

Authorities Act to allow the Secretary of Defense to object to active military lands 

being studied for suitability and feasibility as a national park unit. Most of 

Vandenberg’s lands were studied as part of the National Park Service’s Gaviota 

Coast Feasability Study. As you can imagine, should Vandenberg have become a national park, this would have a negative impact on the bases’s mission. 

I look forward to working with the Chairman to ensure that the language from 

my original bill is addressed. These problems are not unique to my district. Encroachment is one of the major concerns confronting our military installations across 

the United States. 

Again, I thank the Chairman and yield. 

STATEMENT OF HON. NICK J. RAHALL, II, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF WEST VIRGINIA 

Mr. RAHALL. Thank you, Mr. Chairman. 

First I commend you very highly for protecting the jurisdiction 

of the Resources Committee. That allows today’s hearing to take 

place and a further airing of this important issue. 

I also want to note the absence of the dean of the House, who 

was scheduled to give opening testimony today, Mr. John Dingell. 

He is the ‘‘father’’ of the Endangered Species Act as well as the Marine Mammal Protection Act, and I would ask that the record be 

left open for submission of his testimony as, of course, all members 

would have the right to submit. 

Mr. Chairman, the issue at hand represents a classic example of 

a solution in search of a problem. I say that because the DOD has 

spared no expense in the aftermath of 9/11 to assert that our Nation’s environmental laws are undermining the training and readiness of our fighting forces. Yet, according to reports released by the 

General Accounting Office, the Pentagon has failed miserably to 

provide any compelling examples to verify this allegation. Moreover, the major environmental laws all contain a national security 

exemption which the military has not even bothered to utilize to 

address any real or perceived encroachment concerns. 

These facts, however, have not gotten in the way of the DOD 

from throwing up the ‘‘boogie man’’ of Osama and Saddam to 

legislatively exempt itself from major environmental statutes 

6

aimed at protecting all Americans and the natural resources we 

cherish. 

Today, the Committee is considering H.R. 1835, the National Security Readiness Act of 2003. This bill includes provisions that 

really should be labeled as WME, ‘‘weapons of mass extortion’’. 

Make no mistake, it would gut provisions of the Endangered 

Species Act and the Marine Mammal Protection Act, going far beyond what even the military wants. 

I say this because H.R. 1835 would provide exemptions to the 

ESA for all Federal agencies, not just the Department of Defense. 

It would make private property owners, States and local communities bear the burden for the recovery of threatened or endangered 

species. This is patently unfair. 

In the case of MMPA, the bill would change the definition of harassment for all activities, not just military readiness activities. It 

says, ‘‘rev up the motor boat, buddy, and let’s chase us some dolphins.’’ In this regard, this bill does nothing less than put ‘‘Flipper’’ 

in the cross-hairs. 

The Defense Department does not need H.R. 1835, and it is not 

seeking H.R. 1835. The bill overreaches. It is being used as a vehicle for those who have other agendas that transcend military readiness to gut the ESA and the MMPA through a back door approach. 

If enacted, this bill would go back to the future, turning the clock 

back almost 40 years. 

In 1966, the Secretaries of the Interior, Defense and Agriculture 

only had to preserve endangered species insofar as consistent with 

their mission. Similarly, H.R. 1835 would have Federal agencies 

seek to conserve species ‘‘insofar as is practical and consistent with 

their primary purposes.’’ As such, under the bill the Bonneville 

Power Administration could ignore the effect that operating hydroelectric dams may have on endangered salmon on the grounds that 

the agency’s primary mission is to market hydroelectric power. 

Mr. Chairman, this policy did not work in the Sixties and Seventies, and it will not work today. President Nixon recognized this, 

and for me to be reduced to quoting Richard Nixon, you know 

something is wrong. At the 1973 signing ceremony for the Endangered Species Act, President Nixon said—and I quote—‘‘Nothing is 

more priceless and more worthy of preservation than the rich array 

of animal life with which our country has been blessed. It is a 

many-faceted treasure of value to scholars, scientists and nature 

lovers alike, and it forms a vital part of the heritage we all share 

as Americans.’’ End of quote from President Nixon. 

Mr. Chairman, in my view, this bill comes down to this: without 

it, our military will continue to be prepared, as it was in Iraq—and 

I salute them for that—and as it was in every military exercise 

since the enactment of ESA and MMPA. With it, we lose sight of 

some of what our military is being called to protect right here at 

home. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Dingell follows:]

Statement of The Honorable John D. Dingell, a Representative in Congress 

from the State of Michigan 

Chairman Pombo, Ranking Member Rahall and all the distinguished members of 

the Committee, thank you for the opportunity to come before you today to express 

7

my opposition to this needless proposal. I sincerely appreciate your willingness to 

hear my concerns. 

As you know, there are five environmental laws the Department of Defense would 

like exemptions from. Three of those laws, the Resource Conservation and Recovery 

Act, the Comprehensive Environmental Response, Compensation, and Liability 

Act—or Superfund, and the Clean Air Act fall under the jurisdiction of the Energy 

and Commerce Committee and I fully intend to continue fighting the Defense Department on the exemptions they seek from my perch on that Committee. However, 

as an author of the Endangered Species Act and the Marine Mammal Protection 

Act, I feel that my knowledge of these laws might be helpful to you as this Committee considers these sweeping exemptions that could have a profoundly detrimental effect on our Nation’s conservation and environmental protection efforts. 

While I am well aware that the bill before you today, H.R. 1835, goes beyond the 

issues of the military, I would prefer to address the real issue which is that the Department of Defense wants out from under our most important and effective environmental laws. 

During the 2000 campaign, President Bush himself said that he would ‘‘direct active Federal facilities to comply with all environmental protection laws and hold 

them accountable.’’ More recently, Deputy Secretary of Defense, Paul Wolfowitz 

stated in a March 7, 2003 memorandum that, ‘‘In the vast majority of cases, we 

have demonstrated that we are able to both comply with environment requirements 

and to conduct military training and testing. In those exceptional cases where we 

cannot and the law permits us to do so, we owe it to our young men and women 

to request an appropriate exemption.’’

Given the comments of President Bush and key Administration officials, it begs 

the question, why are these sweeping exemptions necessary? 

Mr. Chairman, even you said in a recent interview, ‘‘I am somewhat hesitant to 

exempt certain parts of the Federal Government from these laws.’’ Moreover, in 

your book, This Land is Our Land, you say, ‘‘If the Federal Government were merely 

wasting our money when managing public lands, that would be bad enough, but the 

evidence indicates that it pollutes its land far worse than private landowners.’’

Mr. Chairman, members of the Committee, we have won the war in Iraq. After 

all the fuss the Department of Defense has made over the years about how our environmental laws are infringing on training activities, our military still managed to 

bring down Saddam Hussein’s regime in less than 2 months. I would have to say 

that this victory is a pretty good indication that our military is being trained rather 

well without these sweeping exemptions...and without endangering the habitat of 

our national symbol, the bald eagle. 

Endangered Species Act 

Ladies and Gentlemen, the Endangered Species Act is near and dear to my heart. 

I have accomplished much during my tenure in Congress, but the Endangered 

Species Act, which I wrote with Senator Pete Williams, is a law of which I am particularly proud. 

In fact, there are a couple of exemption options open to the Department of Defense under this law if they need it. 

Section 7 of the law allows the taking of listed species if the Fish and Wildlife 

Service or National Marine Fisheries Service determines that the action will not 

jeopardize the continued existence of a listed species. In a case like this, the agency 

may be required to adopt reasonable and prudent alternatives to its original proposed action and to comply with other terms and conditions required by the Secretary of the Interior. 

Additionally, and perhaps even more compelling, Section 7 (j) requires that an exemption must be granted for an agency action if the Secretary of Defense finds the 

exemption is necessary for reasons of national security. This decision must go 

through a Committee process. I would note, however, that the Department of Defense has never sought an exemption under Section 7 (j) of the law. 

Instead of seeking out the avenues already available to them, the Defense Department wants broad, sweeping exemptions that would require no work on their part. 

Indeed, they are willing to tell half-truths and use fuzzy numbers to get what they 

want. Whenever one hears the Defense Department talking about the constraints 

of the Endangered Species Act, it inevitably mentions the Marine base, Camp Pendleton, in California. The Defense Department will say that 57 percent of the land 

is off-limits to military operations to preserve habitat: in fact the Congressional Research Service indicates it is more like 3 percent. 

The Defense Department, like all other Federal agencies, needs to be held accountable for what it does, just like any other citizen or any other Federal agency. 

8

Marine Mammal Protection Act 

This law, Ladies and Gentlemen, is about the taking of marine mammals. It requires that we recognize the significance of marine mammals and since its passage 

many marine mammal populations have been stabilized. Some species have recovered to the extent that they are no longer listed as threatened or endangered. This 

is a great accomplishment. 

The legislation before you today would allow the Secretary of Defense to exempt 

any action, or category of actions, undertaken by the Department of Defense or its 

components from compliance with any requirement of the Marine Mammal Protection Act, if he finds it necessary for national defense. Unlike the title of this bill 

implies, this is not limited to just military training and readiness. These exemptions 

would be authorized without any environmental review and would be renewable at 

the Secretary’s discretion. My friends, this is too much. 

Now, the Marine Mammal Protection Act is the only one of the 5 statutes the Defense Department does not want to comply with that lacks a specific national security exemption. What it does have, however, is an ‘‘incidental take permit process.’’ 

The Navy regularly applies for these permits and has never been denied. Distinguished Members of the Committee, if it ain’t broke, don’t fix it. 

Conclusion 

I think most of you here know that I am by no stretch of the imagination an extremist. In fact, there are those in my own party who would argue that I am not 

extreme enough. I also think most of you know that if our national security truly 

was being jeopardized by compliance with our environmental laws and regulations, 

I would look for ways to help. 

That, however, is not the case. 

I have been around here a long time and the Defense Department is constantly 

trying to get out from under the laws that every other citizen and every other 

Federal agency is required to comply with, simply because they do not want to be 

troubled. Well, there are many things I would prefer not to be troubled by, including 

fighting this battle, which is a waste of all our time. We have managed to run an 

extremely successful military thus far without giving the Defense Department an 

open season on our environmental laws. 

Thank you for giving me the opportunity to express to you my opposition to this 

outrageous proposal. 

The CHAIRMAN. Thank you. 

I want to welcome our first panel of witnesses here today. If I 

could have you stand and raise your right hand. As is customary 

on the Committee, we swear in all witnesses. 

[Witnesses sworn.] 

Let the record show they all answered in the affirmative. 

I welcome you here today. Before we start, I am sure that you’re 

all familiar with the lights, the timing system. Your entire written 

testimony will be included in the record. Your oral testimony, we 

request that you keep that to 5 minutes. The lights that are in 

front of you, when the yellow light comes on, you have a minute 

left. At the red light, I would request that you wrap up at that 

time. 

Again, I welcome you all here today. I’m going to start with 

Brigadier General Joseph F. Fil, Jr. We will start with you as our 

first witness. 

STATEMENT OF BRIGADIER GENERAL JOSEPH F. FIL, JR., U.S. 

ARMY, COMMANDING GENERAL, NATIONAL TRAINING 

CENTER AND FORT IRWIN, CALIFORNIA 

General FIL. Well, Mr. Chairman, and members of the Committee, thank you for providing me the opportunity to appear before your Committee today. 

My name is Joseph Fil, and I’m the Commanding General of the 

National Training Center and Fort Irwin, California. My testimony 

9

today describes the mission and training that takes place at the 

NTC, as well as some of the constraints placed on that training by 

requirements to manage threatened and endangered species. 

I will try to impress upon you the impact of those constraints on 

our training, and will explain an alternative approach to managing 

the natural resources at NTC in a manner that balances the protection of the species with the vital training mission we must continue to execute for the good of this Nation. 

The National Training Center has a rich military history, dating 

back to the days of Captain John C. Freemont’s defense of Sante 

Fe, Mormon, Bitter Springs and Twenty Mule Team Trails, to the 

training of today’s modern forces currently deployed in operations 

around the world. 

Although the National Training Center was originally a military 

hub to defend trade routes, it is currently the United States Army’s 

premier maneuver training area. It is tasked with providing an environment in which brigade combat teams employ all of their combat assets in a joint and combined arms environment in force on 

force engagements and live fire conditions for current and future 

maneuver forces. In fact, we just completed our first rotation with 

a Stryker Brigade Combat Team. 

The remote location of the National Training Center provides a 

unique and vital training environment. A primary consideration in 

selecting the location of the NTC was the ability to train with all 

weapons systems in a realistic scenario, consistent with military 

training doctrine, from live ordnance delivered by close air support 

to screening smoke provided to mask combat maneuver from 

enemy fire, without disturbing local populated areas. 

I am no newcomer to Fort Irwin and the NTC. I have served as 

a lieutenant colonel, a colonel, and now as its Commanding General. I have helped train rotational units for combat as a battalion 

senior trainer, brigade senior trainer, deputy commander and chief 

of staff, and now as the NTC’s Commanding General. Additionally, 

as a rotational unit leader serving in staff and command positions 

in the grade of captain through colonel, I have witnessed first hand 

how the hard lessons learned through tough, demanding and realistic training at the NTC results in victory on the world’s modern 

battlefields. 

I have also seen the challenges facing Fort Irwin. If the NTC is 

to remain the crown jewel of Army training, and to provide a realistic and relevant battlefield to train the brigade combat teams of 

the future, we do need additional battle space. The NTC’s quest to 

expand its usable training area began in the mid-1980’s. The 

Army’s leadership realized that the NTC would be challenged in 

providing a realistic training environment to the brigade combat 

teams of the future as technology and tactics increase the amount 

of terrain a brigade is held responsible for in combat. 

Even though we have sought to increase our usable training 

area, it has, in fact, been decreased by 24,000 acres due to the designation as critical habitat for the Desert Tortoise, effectively closing one of our two maneuver corridors. 

In January of 2001, Congress withdrew 110,000 acres to add to 

the National Training Center’s training area, which we are curVerDate 0ct 09 2002 10:39 Nov 04, 2003 Jkt 087420 PO 00000 Frm 00013 Fmt 6633 Sfmt 6602 J:\DOCS\86854.TXT HRESOUR1 PsN: KATHY
10

rently addressing in an environmental impact statement and in 

consultation with the Fish and Wildlife Service. 

I am here today to tell you that not only do we need this training 

land, we need to be able to manage it in a flexible, holistic manner 

that balances the environmental protection and military training. 

We think the best method for managing threatened and endangered species is the Integrated Natural Resource Management 

Plan, or INRMP. We believe INRMPs provide a more holistic approach to species management. 

INRMPs take into account all species present on the installation, 

not just one particular threatened or endangered species, and they 

take into account multiple uses of the land—hunting, residential, 

and military training. INRMPs simply provide an overall, broader, 

and more over-arching review of the total natural resource package 

on a military installation. In this day and age of diminishing resources, when we are constantly challenged to do more with less, 

we believe that INRMPs are our best chance of meeting that challenge when it comes to managing our natural resources. 

What we are trying to do with this RRPI proposal is to preserve 

our ability to strike the proper balance between training and environmental protection with our local fish and wildlife service, and 

with local stakeholders through the INRMP process. We fully recognize and will continue to honor our obligation to preserve the environment and protect threatened and endangered species and to 

follow the Endangered Species Act. 

We are great stewards of the environment at Fort Irwin. We 

have lots of good people working on it, and we devote substantial 

resources to it, and we will continue to do so. Unfortunately, the 

Fish and Wildlife Service’s INRMP policy process is being currently 

challenged in court. What we need is Congress to clarify its intent 

in this regard, rather than leave it up to Federal judges and private lawsuits. 

Mr. Chairman, it is, indeed, a great honor to be here. I look forward to answering any questions that you may have. 

[The prepared statement of General Fil follows:]

Statement of Brigadier General Joseph F. Fil, Jr., Commanding General, 

National Training Center and Fort Irwin, California 

Mr. Chairman and members of the Committee: Thank you for providing me the 

opportunity to appear before your Committee today. My name is Joseph F. Fil, Jr. 

and I am the Commanding General of the National Training Center (NTC) and Fort 

Irwin, California. My testimony describes the mission and training that takes place 

at the NTC as well as some of the constraints placed on that training by requirements to manage threatened and endangered species. I will try to impress upon you 

the impact of those constraints on our training and will explain an alternative approach to managing the natural resources at NTC in a manner that balances the 

protection of species with the vital training mission we must continue to execute for 

the good of this nation. I will also explain the potential benefits to the NTC from 

two of the provisions that are part of the DoD Readiness and Range Preservation 

Initiative. 

Mission and Capabilities of the National Training Center 

Our mission at the NTC is to provide tough, realistic combined arms and joint 

training. The training is focused at the battalion task force and brigade level, to assist commanders in training the soldiers, leaders, and units of America’s Army for 

combat success on the modern battlefield. We are tasked to provide feedback to improve Army doctrine, training methods, and to care for our soldiers, civilians, and 

family members living and working at Fort Irwin. We are also tasked with keeping 

pace with, and often leading, the Army’s transformation training. 

11

Currently, ten brigade-sized units, averaging four to six thousand soldiers each, 

deploy annually to the NTC for intensive combat training against a dedicated opposing force, or OPFOR. Each 28-day brigade training rotation is designed to replicate 

a contingency deployment to an overseas combat area. The NTC trains Army heavy 

and light forces in a joint and combined arms environment at the mid to high intensity level of combat operations. The NTC provides a capstone-training event for U.S. 

Army brigades and battalions that is realistic, rigorous, and demanding. We accomplish this through a combination of force-on-force and live fire training, while providing detailed observations and feedback. The NTC must provide the realistic and 

demanding environment for leaders and soldiers to ensure the hard lessons, historically learned in America’s first battles at the expense of soldiers’ lives, are gained 

in live training instead of in combat. 

At the NTC, we employ four key elements, not available at unit home station 

training facilities, to train brigades. We have a full-time, dedicated Opposing Force 

(OPFOR) Regiment; professional full-time trainers to observe and provide feedback 

to the training units; a sophisticated instrumentation system to track the battles; 

and a realistic battlefield that replicates the stress and conditions of actual combat. 

We are constantly examining our training, equipment, and training area, to ensure 

they support potential future joint and combined combat environments and they 

provide the realistic geographic battlespace to train Brigade Combat Teams. 

Requirements to Accomplish the Mission of NTC 

Fort Irwin encompasses over 642,000 acres. It is the Army’s largest instrumented 

maneuver installation, and is the only one capable of training heavy and light units 

on the ground at distances approximating realistic operating distances. The Army 

and Joint Service participants depend on Fort Irwin and its large expanse of maneuver training area to provide the realistic battlefield conditions our service men and 

women will face in combat. Operating over these distances challenges Brigade Combat Teams not only in force on force maneuver events, but also in Brigade Combat 

Team maneuver live-fires that fully integrate internal, attached, and joint assets. 

The NTC is the only Army Installation in CONUS offering force on force and livefire training opportunities to Brigade Combat Teams and the only center in the 

world that can accomplish this combat essential training in a fully instrumented environment. For many leaders and soldiers, a National Training Center rotation is 

the first time their units are able to train at doctrinal distances. Digital and voice 

communications requirements, lines of communication and support relationships, 

situational awareness, and combat force maneuver prove difficult for forces that 

have never operated over such distances. In this regard, the mere physical size of 

the National Training Center Maneuver Area provides a more realistic battlefield 

that allows the Brigade Combat Team to face these challenges and learn from them 

in a training environment rather than war. 

The National Training Center’s 642,000 acres includes 350,000 acres of maneuver 

area. While this maneuver area met the doctrinal distances for units of the 1980s, 

current future Brigade Combat Teams operate at much more extended distances as 

recently demonstrated by the 3d Infantry Division during operation Iraqi Freedom. 

Expanded maneuver areas need to adequately stress battle field operating systems. 

The Army’s Interim and Objective Forces will need even larger maneuver areas to 

train for combat. Although the NTC was capable of providing adequate training 

area for the Army Brigade Combat Teams that fought Desert Storm in 1991, the 

current NTC training area does not support the land requirements to fully train 

current and future Army Brigade Combat Team configurations. 

As early as 1985, the Army recognized that changing tactics, organizations, and 

more capable equipment have created a demand for a larger training area to realistically conduct force-on-force training for brigade-sized units. Recognizing this requirement, the Army began the process of expanding the NTC. Due in large part 

to the complex requirements to protect the Desert Tortoise (a threatened species) 

and the Lane Mountain Milk Vetch (a recently listed endangered species), the effort 

to acquire additional land and meet this doctrinal training requirement remained 

incomplete for nearly 18 years. Thanks to recent congressional legislation, approximately 110,000 acres of additional training land has been withdrawn from the Bureau of Land Management for the NTC. With these additional 110,000 acres, the 

NTC will actually offer 520,000 acres (opening numerous corridors which are currently closed) of actual maneuver training area, which we believe is essential to our 

ability to provide a realistic training environment for the Interim and Objective 

Forces. We are currently evaluating the expansion under the National Environmental Policy Act and consulting with the U.S. Fish and Wildlife Service under the 

Endangered Species Act, with the objective of commencing training in the expansion 

area by fiscal year 06. 

12

Impact of Endangered Species Act Compliance on the Mission of NTC 

The Army recognizes its obligation to protect threatened and endangered species. 

We have in the past and will continue to be leaders in this respect. Although NTC 

is and will remain committed to environmental stewardship, pressure points exist 

that limit the effectiveness of training. One of the most challenging of these pressure points is the management of threatened and endangered species. 

The threatened Desert Tortoise inhabits Fort Irwin. We take extraordinary measures to ensure we avoid them during our training operations. All soldiers training 

in the maneuver area are briefed on actions to take when a Desert Tortoise is sighted and we never exceeded our estimated limits of takes contained in the Biological 

Opinion per year over the past 10 years. Upon encountering a Desert Tortoise, 

training in the immediate area ceases, and soldiers are instructed to notify a National Training Center Observer Controller who then notifies the National Training 

Center Environmental Team. If a biologist is required to relocate or retrieve a tortoise after normal working hours or on weekends, they are required to drive 36 

miles (from their residence) or further to accomplish this mission, resulting in soldiers remaining to observe the tortoise for hours. 

In most cases, reporting the location and confirming the tortoise is out of immediate and future harms way is the only action taken. Physical handling of a Desert 

Tortoise is only done in cases of imminent danger. One of the Desert Tortoise defense mechanisms is urination, in which it empties it’s bladder to ward off 

attackers. If a Desert Tortoise urinates, soldiers are trained to provide shade and 

contact National Training Center Environmental personnel. This is important as a 

tortoise that voided it’s bladder has much less chance of surviving it’s hibernation 

period. The Fort Irwin newspaper frequently publishes articles on environmental 

awareness, especially on Desert Tortoise and other wildlife, to educate soldiers, family members, and post employees who live in post housing and work in administrative areas. 

In 1993, the National Training Center established a Desert Tortoise reserve in the 

southern portion of the training maneuver area to minimize training impacts on the 

species. This reserve was seen by the National Training Center Leadership as a environmentally responsible measure until mitigation requirements were identified 

and implemented. The reserve area was fenced using National Training Center 

funds to prevent vehicular traffic from entering the area in 1994. It was never the 

National Training Center’s intent to permanently restrict this area from use for Brigade Combat Training Team maneuver, rather it was intended to provide U.S. Fish 

and Wildlife Service an area to determine possible future mitigation. As a result, 

U.S. Fish and Wildlife (USFWS) designated the reserve as Desert Tortoise critical 

habitat. 

This loss of approximately 22,000 acres effectively moved our southern boundary 

north by three kilometers, effectively closing the southern brigade maneuver corridor; one of only two at the NTC. Because the southern brigade maneuver corridor 

is unavailable, our training is restricted to the central brigade maneuver corridor. 

The repeated use of this corridor concentrates and intensifies maneuver impact 

damage and repeatedly exposes rotational units to the same terrain during training. 

This is not conducive to sustainable land use and land management practices or to 

training realism. Repeated use of the same training area reduces the realistic evaluation and use of terrain by units and encourages habitual use of the same maneuver courses and fighting positions during training. It causes unrealistic familiarity 

with likely courses of action, enemy positions, and ambush points. It concentrates 

training impacts, driving up maintenance costs and creating additional environmental issues such as erosion. In general, it reduces total maneuver land available, 

which causes a reduction in the capability of the installation to support doctrinal 

training requirements. 

The Lane Mountain Milk–Vetch is an endangered plant species present in the 

southwest corner of Fort Irwin and within lands withdrawn as part of the Fort 

Irwin Expansion legislation. The Milk–Vetch is a small perennial herb with a very 

short growing season of approximately 2 to 4 months. It generally grows within 

other plants that it appears to use as a support structure. The original listing by 

U.S. Fish and Wildlife Service indicated an estimated population of 1,200 plants, in 

three habitat areas of which two were on the NTC reservation and the third on land 

managed by BLM. The U.S. Fish and Wildlife Service indicated that the plant was 

justified for listing indicating that military training activity due to the Fort Irwin 

Expansion was a primary threat to the continued existence of the species. Recent 

surveys and research funded by the National Training Center, at a cost of over 

$1,300,000 in the past three years, indicate a far different picture than was presented in the listing package for the plant. Due to the Army survey, the known 

habitat was expanded from 13 square miles to over 32 square miles, a new 

13

population was discovered, and an area thought previously to contain only a few 

hundred plants in a few acres was discovered to be the largest population with the 

largest habitat area of nearly 10,000 acres. This area is totally outside military 

boundaries located primarily on lands administered by the Bureau of Land Management. Due to the Army survey, the U.S. Fish and Wildlife Service population estimate of 1,200 plants has been increased to an estimate of 30,000—70,000 plants and 

we are discovering additional habitat and plants as we speak. 

U.S. Fish and Wildlife Service, based on a court order, is required to designate 

critical habitat for the Lane Mountain Milk–Vetch by September 2004. Based on a 

population of the Lane Mountain Milk–Vetch on Fort Irwin (about 25% of the 

known habitat is on the Fort) the potential designation of critical habitat may remove from training enough land in the western expansion area to make this area 

totally unusable for Brigade Combat Team training by the NTC. 

NTC Commitment to Environmental Stewardship 

As I have articulated, the protection of threatened and endangered species is not 

without cost, both monetary and to our military capabilities. We perform a constant 

balancing act to satisfy all of the competing demands placed on the natural resources that comprise Fort Irwin. We do not shrink from this challenge; rather, we 

have and will continue to engage it head-on. 

The NTC has a solid record in the area of environmental protection. The Army 

awarded its Pollution Prevention Installation Award for Fiscal Year 2002, Environmental Quality Award for Fiscal Year 2001, and Cultural Resources Team Award 

for Fiscal Year 1999 to the NTC. In 1996, Vice President Al Gore awarded the Vice 

President ‘‘s ‘‘Hammer Award’’ to the NTC for initiating Mojave Desert Ecosystem 

Program. In 2003, the EPA Region ‘‘IX recognized NTC as the Champion of Green 

Government for our Pollution Prevention efforts. In addition, we have a strong 

record in air quality management as evidenced by award of the Mojave Desert Air 

Quality Management District Award for 1999, 2000, 2001 and 2002. Annually, the 

NTC spends $1.2M for Installation Training Area Management and over $13M in 

environmental programs. The NTC employs a 34 person Environmental Staff (Civil 

Servants and Contractors) of which five are full time wildlife biologists, six archeologists, and a botanist who work as a team to conserve natural and cultural resources 

and to advance the training center’s environmental stewardship program. All of Fort 

Irwin’s programs to manage and conserve natural resources are integrated into the 

installation’s Integrated Natural Resource Management Plan (INRMP). The INRMP 

will serve as the primary tool to coordinate all of the competing conservation requirements and ensure they are met in a manner that supports species protection 

and the sustainable use of Fort Irwin’s training lands to support our mission. 

Benefits of the Readiness and Range Preservation Initiative 

With this background on the NTC’s military mission and the environmental requirements that adversely impact our capability at the NTC, I want to address two 

RRPI provisions that would greatly assist us in balancing these competing requirements in the future: the provisions addressing Endangered Species Act critical 

habitat and Clean Air Act conformity requirements. While the RRPI will certainly 

not eliminate all of the problems that are impacting our ability to conduct the realistic training that is vital to combat effectiveness, it is an important step towards 

achieving a more effective balance between our mission and conservation objectives. 

Endangered Species Act Critical Habitat 

As you know, the Endangered Species Act provides for the designation of critical 

habitat that is essential to the conservation of a threatened or endangered species. 

Critical habitat designated based on the limited scientific information available to 

the Fish and Wildlife Service, is subject to special protections that primarily affect 

and limit Federal activities, as opposed to the activities of state and local governments and private citizens. As I will discuss, the NTC has first hand experience as 

to the adverse consequences of designating critical habitat on a military installation. 

We believe that the RRPI provision affords a much more effective means of achieving the conservation objectives of the Endangered Species Act, while at the same 

time affording us the flexibility to perform our military mission. As I explained earlier, 24,000 acres of NTC was later designated as Critical Habitat for the Desert 

Tortoise and, as a result, we lost the ability to use any portion of this land for our 

training. 

Compounding our problems, we now must implement conservation measures for 

the Lane Mountain Milk Vetch. This plant was recently discovered on approximately 11,500 acres on Fort Irwin in the Southwest Expansion Area, which is vital 

to meeting our training requirements in the 21st Century. While we support efforts 

to ensure the survival of this species, we are greatly concerned over further 

14

degradation of our ability to effectively train soldiers at the NTC. Designation of 

Critical Habitat for the Milk Vetch is required but the exact area is unknown. The 

potential designation of large areas of the NTC as Critical Habitat for the Milk 

Vetch poses a major future threat to our mission and makes the passage of the 

RRPI Endangered Species Act provision of vital importance to us. 

The RRPI Endangered Species Act provision will ensure the availability of what 

we believe to be a valuable and necessary tool in achieving an effective balance between conservation and military mission. The RRPI provision codifies the highly 

beneficial U.S. Fish and Wildlife Service administrative practice of allowing an approved INRMP to substitute for designating Critical Habitat on a military installation. This important tool is now in jeopardy as a result of a recent Federal court 

decision. 

RRPI would ensure that the NTC could use its INRMP to provide focused, carefully crafted management protections for the Milk Vetch, while at the same time 

avoiding unnecessary impacts on military mission. From a conservation perspective, 

critical habitat offers nothing that an approved INRMP cannot provide. We believe 

this approach positively contrasts to the inflexible approach, normally associated 

with the designation of critical habitat, that can impede realistic training. 

Additionally, having an INRMP in lieu of designated critical habitat will have a 

major benefit in reducing the number of consultations we will have to initiate with 

the U.S. Fish and Wildlife Service under Section 7 of the Endangered Species Act. 

Considering the limited resources and personnel available at the NTC and the U.S. 

Fish and Wildlife Service for consultation and conservation activities, this savings, 

in terms of time, cost, and administrative burden, will be significant. The less time 

the NTC’s Natural Resource Professionals are required to spend on administrative 

consultations, the more time they can devote to conservation activities that directly 

benefit the species. 

While impediments to realistic training will remain, allowing us the flexibility to 

use our INRMP in lieu of critical habitat will greatly assist us in balancing our competing requirements. Moreover, we are optimistic that working closely with the U.S. 

Fish and Wildlife Service, our INRMP can and will afford the effective management 

that is needed to ensure the survival of the Milk Vetch. Of the $125 million in funding currently projected for our land expansion effort, up to $75 million has been 

authorized and is awaiting approval for the mitigation of endangered and threatened species. We currently expend approximately $3 million annually for the conservation of these species. 

I think our success with the Desert Tortoise clearly demonstrates the effectiveness 

of the conservation measures that we undertake and will continue under our 

INRMP. We have a comprehensive program to educate soldiers and others on the 

installation on endangered species and the protections they must be afforded. We 

have pioneered the operation of the nation’s only Desert Tortoise Headstart Program, which has released over 200 hatchling tortoises to the wild. Moreover, with 

all of the training activities at the NTC, we have never been cited for exceeding the 

estimates of take limits contained in the Biological Opinion in the past ten years—

clear evidence of the effectiveness of the comprehensive measures we have implemented under our INRMP. 

Clean Air Act Conformity 

While we take all reasonable and practical mitigation measures, training in the 

desert inherently generates dust. As the Army transforms, the number of vehicles 

training at the NTC will increase, as will the resulting dust. For years, we have 

strived to meet the compliance requirements associated with the PM 10 National 

Ambient Air Quality Standard (NAAQS). This has been particularly difficult considering the background concentration of particulate matter in the air, emanating from 

the Los Angeles basin. While this has been a major challenge, we have successfully 

coped. The NTC spends about $400,000 annually as part of a cooperative effort with 

the Mojave Desert Air Quality Management District to monitor for particulate matter. Additionally, we spend about $1 million each year through our Installation 

Training Area Management program in efforts to mitigate dust and erosion. 

With the emerging requirements associated with the new PM 2.5 NAAQS, we are 

greatly concerned over the future impact on our training operations. As a result of 

background levels from pollution from the Los Angeles basin, without any training 

activities at the NTC, the ambient air quality at the NTC exceeds this new standard. Consequently, the RRPI Clean Air Conformity provision, which would give the 

Army up to three years to demonstrate compliance with a state’s implementation 

plan for air quality, is important to the NTC’s future. 

15

Conclusion 

I am extremely proud of the great American soldiers and leaders who train so 

hard in the tough training environment we have established in the desert of NTC. 

Our Army recognizes that the National Training Center is a critical and irreplaceable component of the readiness of our Army. We train and coach units to the 

Army’s doctrinal standards, and we adjust training conditions based on unit skills, 

knowledge and abilities. All the units that train at NTC depart immeasurably better 

for their hard work, and that of the soldiers and civilians who support their training. I am very proud of everyone at our training center, as we train soldiers and 

develop leaders in order to ensure no soldier goes into harm’s way untrained. 

I appreciate the strong support from Congress and particularly from this Committee. Mr. Chairman, thank you for the opportunity to speak today and I stand 

ready to answer the Committee’s questions. 

The CHAIRMAN. Thank you. 

Our next witness is Rear Admiral Robert T. Moeller. 

STATEMENT OF REAR ADMIRAL ROBERT T. MOELLER, U.S. 

NAVY, DEPUTY CHIEF OF STAFF FOR OPERATIONS/PLANS 

AND POLICY, U.S. PACIFIC FLEET 

Admiral MOELLER. Mr. Chairman, distinguished members of the 

Committee, it is truly an honor to be here today. I am Rear Admiral Bob Moeller. I am the Deputy Chief of Staff for Operations/

Plans and Policy for the Commander, U.S. Pacific Fleet. 

I am a surface warfare officer and have actual forward deployed 

experience in the Atlantic, Mediterranean, Western Pacific and 

Persian Gulf, including command of an Aegis-class Tomahawk 

equipped cruiser. I know the importance realistic training plays in 

preparing to execute our assigned mission. 

The primary mission of Commander, U.S. Pacific Fleet, is to provide combat-ready naval forces. The Pacific Fleet is comprised of 

approximately 200 ships, 1,500 aircraft, and 250,000 sailors, Marines and civilians. 

Our ability to provide the training they need to be the best is the 

matter we’re addressing today. How do we ensure their readiness? 

The reality is that we are facing an increasingly difficult task to 

provide this training because of the constant pressure associated 

with what we characterize as encroachment. Under the Marine 

Mammal Protection Act, the current definition of harassment of 

marine mammals can be interpreted as mere annoyance or potential to disturb, without biologically significant effects. As a result, 

any Navy test or training activity that results in such harassment 

must be permitted to do so. Such broad language in definitions, if 

taken to the extreme, could be interpreted to prevent any maritime 

activity in the vicinity of marine mammals. 

Two examples illustrate the specific encroachment challenge we 

face in the area of anti-submarine warfare, a mission unique to the 

Navy and the No. 1 warfare priority for PacFleet. 

For years, the Navy has been concerned about the MMPA. In November, 2002, a Federal District judge issued a court order that 

strictly limits employment of SURTASS LFA. This advanced system is designed to detect and track the growing number of stateof-the-art, quiet diesel submarines possessed by nations that could 

threaten our national security. The Navy now finds the deployment 

and operation of one of our most important national security assets 

16

constrained by a Federal court, notwithstanding a 6-year effort on 

our behalf to comply fully with the MMPA. 

The current reality is that we cannot test and train with 

SURTASS LFA in those areas of the Pacific where we would most 

likely need to use the system during hostilities and future testing 

and employment of SURTASS LFAs in jeopardy. Simply keeping 

the system on the shelf until we may actually need to use it is not 

a realistic option. 

The Navy is also developing, as part of its littoral warfare advanced development, or LWAD program, other new sensors and 

tactics to track these quiet diesel submarines as they operate in littoral waters, like the Persian Gulf and Taiwan Strait. These submarines are proliferating worldwide, including Iran, China and 

North Korea. They are significantly harder to detect than the submarines that challenged the U.S. Navy during the cold war. Without these new, vital sensors, we would be unable to secure sea lines 

of communication and trade. 

In the past 6 years, this program to develop and test systems 

and tactics has encountered challenges by environmental groups 78 

percent of the time. In the last 3 years, nine of ten operational 

tests have been affected. One test was canceled and 17 related 

projects have been scaled back. 

The Readiness and Range Preservation Initiative follows the National Research Council’s recommendation that the current ambiguous definition of harassment of marine mammals under the 

MMPA be reworded to define more biologically significant effects. 

I ask that you keep in mind that this proposal does not create a 

blanket exemption for the Navy. We will still seek permits in those 

instances where our actions will have biologically significant impacts. 

This language is the result of the interagency process. Therefore, 

Commerce and Interior support this proposal. Furthermore, this 

language is similar, I am told, to language proposed by the previous administration. 

The U.S. Navy is very proud of its ability to respond to the President’s call to be ready in the current global war on terror. As the 

President remarked just the other evening from the deck of the 

U.S.S. ABRAHAM LINCOLN, the war is not over. Indeed, law and 

the expectation of the American people require that their military 

services are ready. 

A fundamental tenet of fleet readiness is to train as we fight. 

However, experience paid in lives has demonstrated that we fight 

as we train. There is a real need to better clarify and eliminate ambiguity in environmental laws without exempting the Department 

of Defense from compliance. As such, there remains an ongoing 

need for the Department of Defense to continue its dialog in partnership with regulatory agencies, in order to properly balance national defense requirements with conservation initiatives. 

Finally, we appreciate the continued effort by the Congress to 

recognize our responsibility to realistically train America’s sons and 

daughters for combat and to support the requirement for viable, 

unfettered range facilities to accomplish that mandate. 

I welcome your questions. Thank you very much. 

[The prepared statement of Admiral Moeller follows:]

17

Statement of Rear Admiral Robert T. Moeller, Deputy Chief of Staff for 

Operations/Plans and Policy, U.S.. Pacific Fleet, U.S. Navy 

INTRODUCTION 

Chairman Pombo, Representative Rahall, and Members of the Committee, thank 

you for this opportunity to share my views regarding the growing negative effects 

of encroachment on military readiness and training of our American Sailors as they 

prepare for combat. I appreciate your attention to this vital and timely topic, which 

is of great importance to national security and the environment. 

THE U.S. PACIFIC FLEET 

The mission of Commander, U.S. Pacific Fleet, is to support the U.S. Pacific Command’s (PACOM) theater strategy, and to provide interoperable, trained and combat-ready naval forces to PACOM and other U.S. unified commanders. The U.S. Pacific Fleet area of responsibility (AOR) covers more than 50% of the earth’s surface, 

encompassing just over 100 million square miles. Each day, Pacific Fleet ships are 

at sea in the Arabian Gulf, and the Pacific, Indian, and Arctic Oceans. Our AOR 

extends from the west coast of the U.S. to India. The Pacific Fleet is made up of 

approximately 200 ships, 1,500 aircraft and 250,000 Sailors, Marines and Civilians. 

Together they keep the sea-lanes open, deter aggression, provide regional stability, 

and support humanitarian relief activities. As the Deputy Chief of Staff for Operations/Plans and Policy, I develop initial naval combat plans and follow through 

until specific operations are completed. 

The high quality of training we provide to these Sailors is perhaps unseen, yet 

it is an essential element of their impressive level of combat readiness. Clearly, before this nation sends its most precious asset—its young men and women—into 

harms way, we must be uncompromising in our obligation to prepare them to fight, 

survive, and win. This demands the most realistic and comprehensive training we 

can provide. 

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 our combat effectiveness. The ratio of enemy aircraft shot down by U.S. aircraft in Vietnam improved to 13-to–1 from less than 1-

to–1 after the Navy established its Fighter Weapons School, popularly known as 

TOPGUN. More recent data shows aircrews that 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. 

As combat operations for Operation Iraqi Freedom concludes, we must prepare for 

other possible conflict in the future. We should be concerned about the growing challenges in our ability to ensure our forces receive the necessary training with the 

weapon and sensor systems they will employ in combat. 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, 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 facilities and urban sprawl. They are constrained by state and 

Federal environmental laws and regulations and cumbersome permitting processes 

which negatively impact our ability to train. 

NAVY’S ENVIRONMENTAL STEWARDSHIP 

The Navy continues its commitment to good stewardship of the environment. Indeed, our culture reflects this, as the men and women manning our fleet were raised 

in a generation with a keen awareness of environmental issues. The Navy environmental budget request for FY–2004 totals $1.0 billion. This funding supports environmental compliance and conservation, pollution prevention, environmental research, the development of new technologies, and environmental cleanup at Active 

and Reserve bases. It is precisely as a result of this stewardship that military lands 

present favorable habitats for plants and wildlife, including many protected species. 

Ironically, our successful stewardship programs have helped increase the number of 

18

protected species on our ranges, which has resulted in less training capacity in some 

instances. 

BALANCING MILITARY READINESS AND THE ENVIRONMENT 

Sustaining military readiness today has become increasingly difficult because, 

over time, a number of factors, including urban sprawl, regulations, litigation, and 

our own accommodations to demands from courts, regulatory agencies and special 

interest groups have cumulatively diminished the Navy’s ability to effectively train 

and test systems. Among the greatest threats to proper military training are some 

laws that include ambiguous provisions and cumbersome process requirements that 

result in unintended negative consequences, which inhibit realistic, timely and comprehensive training. These laws, and the court decisions which have interpreted and 

expanded them, have resulted in Federal courts and regulatory agencies curtailing 

essential training despite the ‘‘best available science’’ supportive of the Navy’s ability to train without harm to the environment. As a result, military readiness requirements and environmental protection are out of balance. 

The Administration’s Readiness and Range Preservation Initiative (RRPI) proposes modest amendments to several environmental laws which will help restore the 

balance, meeting our national security needs and maintaining good stewardship of 

the environment. I ask for your help to address the challenges of most concern to 

the Navy under the Marine Mammal Protection Act (MMPA) and the Endangered 

Species Act (ESA). 

MARINE MAMMAL PROTECTION ACT 

Last year before the Senate Environment and Public Works Committee, the Vice 

Chief of Naval Operations testified that the definition of the term ‘‘harassment’’ of 

marine mammals in the MMPA was a source of confusion because the definition is 

tied to vague and ambiguous terms such as ‘‘annoyance’’ and ‘‘potential to disturb.’’ 

These terms arguably apply to even the slightest changes in marine mammal behavior and subject Navy training and testing at sea to the scrutiny and control of 

courts, regulatory agencies and special interests groups, even in the absence of evidence of adverse impacts on the marine mammals. The severity of the impact on 

Navy training and testing is strikingly more apparent now. 

In November 2002, a Federal district judge in San Francisco presiding over a case 

brought by environmental groups alleging violation of the MMPA, National Environmental Policy Act (NEPA), and the Endangered Species Act issued a preliminary injunction that limits employment of the Surveillance Towed Array Sensor System 

Low Frequency Active (SURTASS LFA) sonar system. This advanced system is designed to detect and track the growing number of quiet diesel submarines possessed 

by nations, which could threaten our vital national security. After highlighting flaws 

in regulatory agency implementation of the MMPA and ESA, the court issued a preliminary injunction restricting Navy’s deployment of SURTASS LFA to a limited 

area in the western Pacific. Navy now finds the deployment and operation of one 

of our most important national security assets constrained by a Federal court as a 

result of litigation brought by environmental groups specifically designed to deny 

Navy use of the system. Future testing and employment of SURTASS LFA could 

be adversely affected. The MMPA was originally enacted to protect whales from 

commercial exploitation and to prevent dolphins and other marine mammals from 

accidental death or injury during commercial fishing operations. Military readiness 

concerns were not raised at the time of its enactment. 

As a result of the preliminary injunction issued by the Federal district court, we 

are not allowed to test and train with LFA in the waters in which it will need to 

be employed. SURTASS LFA is a critical part of anti-submarine warfare (ASW). The 

Chief of Naval Operations has stated that ASW is an essential and core capability 

of the Navy. Testing and training with LFA is essential to our future success. By 

way of comparison, during the Cold War we made every effort to search, detect, and 

track Soviet nuclear submarines. In so doing, we learned their habits, went to school 

on their operational procedures, and worked hard to stay ahead of them. Today the 

nature of the submarine threat has changed. The challenge is different. Nevertheless, the preliminary injunction on testing and training with LFA issued by the 

Federal district court has severely limited our ability to do prepare for this 

challenge. 

The Current Quiet Diesel Submarine Threat 

As we enter the 21st century, the global submarine threat is becoming increasingly more diverse, regional, and challenging. The Russian Federation and the People’s Republic of China have demonstrated that the submarine is a centerpiece of 

their respective navies. Published naval strategies and current operations of potential adversaries, including Iran and North Korea, have demonstrated the same 

19

strategic doctrine. Diesel submarines are deemed a cost-effective platform for the delivery of several types of weapons, including torpedoes, anti-ship cruise missiles, 

anti-ship mines and nuclear weapons. In addition to the United States, Australia, 

Canada, and the United Kingdom, 41 other countries, including potential adversary 

nations such as China, North Korea, and Iran, have modern quiet submarines and 

many are investing heavily in submarine technology. Of the 380 submarines owned 

by these 41 countries, more than 300 are quiet diesel submarines. 

Submarine quieting technology continues to proliferate, making submarines, operating in their quietest mode, difficult to detect even with the most capable passive 

sonar. The inability to detect a hostile submarine at long-range—in other words, at 

a sufficient ‘‘stand-off’’ distance before it can launch a missile or a torpedo—is a critical vulnerability that puts ships and our Sailors at risk. The threat of a quiet diesel 

submarine, in certain circumstances, could deny access to vital operational areas to 

U.S. or coalition naval forces. These threats to our Navy are a reality that the U.S. 

Pacific Fleet must consider as it carries out its responsibility to be able to conduct 

theater warfare in the Pacific Region. 

Because of these threats, Navy identified the requirement to detect hostile submarines before they are close enough to use weapons. This capability is particularly 

critical where there exists a concentration of forces at sea, as recently occurred in 

the Sea of Japan for exercise Foal Eagle, or as is planned in support of Operational 

and Contingency Plans in the vicinity of Northeast Asia. When it becomes necessary 

to place carrier battle groups or amphibious task forces in harms way, these valuable national assets, their supporting ships and their crews have to transit constricted bodies of water or straits. These limited areas provide the perfect opportunity for quiet diesel submarines to stalk our ships. A pre-positioned diesel submarine, conducting a quiet patrol on battery power, is extremely difficult to detect 

with passive sonar. The most promising system to counter this threat to our Navy 

and national security is SURTASS LFA. To be effective, SURTASS LFA must be 

tested and evaluated for integration into the Fleet. It is not effective to be kept ‘‘on 

the shelf’’ in the event our forces need to use it in a real contingency. 

Comprehensive Environmental Analysis 

In meeting its obligations under current environmental laws for deploying 

SURTASS LFA, the Navy undertook a comprehensive and exhaustive environmental planning and associated scientific research effort. Working cooperatively 

with the National Marine Fisheries Service (NMFS)—the Federal regulatory agency 

tasked with protection and preservation of marine mammals—the Navy completed 

an Environmental Impact Statement (EIS), developed mitigation measures for protecting the environment, and obtained all required authorizations or permits pursuant to the MMPA and ESA. The scientific research and EIS involved extensive participation by independent scientists from a large number of laboratories and academic organizations. The Navy also undertook a wide-ranging effort to involve the 

public in the EIS process through public meetings and extensive outreach. Based 

on this effort, NMFS concluded that the planned SURTASS LFA operations would 

have negligible impacts on marine mammals. 

Despite plaintiffs’ failure to produce scientific evidence contradicting the independent scientific research that the LFA system could be operated with negligible 

harm to marine mammals, the court opined that Navy testing and training must 

be restricted. In reaching this conclusion, the court noted that under the definition 

of harassment, the phrase ‘‘potential to disturb’’ hinged on the word ‘‘potential’’ and 

extended to individual animals. Quoting from judge’s opinion, ‘‘In fact, by focusing 

on potential harassment, the statute appears to consider all the animals in a population to be harassed if there is the potential for the act to disturb the behavior patterns of the most sensitive individual in the group.’’ (Emphasis added.) Interpreting 

the law this broadly could require authorization (permits) for harassment of potentially hundreds, if not thousands, of marine mammals based on the benign behavioral responses of one or two of the most sensitive animals. 

Highlighting how difficult it would be to apply the MMPA to world-wide military 

readiness activities under such a broad interpretation of harassment, the court 

pointed out that a separate structural flaw in the MMPA limits permits for harassment to no more than a ‘‘small number’’ of marine mammals. Overturning the regulatory agency’s decades-old interpretation of the MMPA, the court also said that the 

‘‘small number’’ of animals affected cannot be defined in terms of whether there 

would be negligible impact on the species, but rather is an absolute number that 

must be determined to be ‘‘small.’’ The court’s far-reaching opinion underscores 

shortcomings in the MMPA that apply to any world-wide military readiness activity, 

or any grouping of military training activities that might be submitted for an overall 

review of impact on the environment. 

20

In addition to the decision to restrict deployment of the SURTASS LFA system, 

two other recent decisions by different Federal district courts have stopped scientific 

research due to concerns about acoustic impacts to marine mammals. In one case, 

a court enjoined a seismic air gun research on geological fault lines conducted by 

the National Science Foundation off the coast of Mexico based on the court’s concern 

that the research may be harming marine mammals in violation of the MMPA and 

NEPA. In another case, a court enjoined a Navy funded research project proposed 

by the Woods Hole Oceanographic Institute designed to study the effectiveness of 

a high frequency detection sonar (similar to a commercial fish finder) in detecting 

migrating Grey Whales off the coast of California. 

The legislation proposed by the Administration provides solutions to marine mammal issues on three levels. It defines harassment in terms of significant changes in 

natural behavior patterns, thereby providing a higher threshold when determining 

which military readiness activities require National Marine Fisheries Service 

authorization. The proposed legislation resolves the issues identified by the court in 

the LFA litigation by recognizing the unique nature of military systems and operations, allowing the Navy to address military readiness activities and the areas in 

which they are conducted in a manner that makes sense from an operational and 

training perspective. Finally, it creates a national defense exemption that can be exercised when conditions warrant by the Secretary of Defense after consulting with 

the Department of Commerce and/or the Department of Interior. 

ENDANGERED SPECIES ACT 

Negative impacts on military readiness activities have also resulted from the 

ESA. For example, the designation of land used for military training as critical 

habitat under the ESA can undermine the primary purpose for which these lands 

were set aside. Federal courts have held that critical habitat is intended not only 

as a safe haven for species survival, but also as a cradle for species recovery—even 

if the species is not currently present on the land. Under the ESA, Federal agencies 

are required to ensure that their activities do not adversely modify designated 

habitats. Hence designation as critical habitat can drastically limit land uses by 

placing inflexible restrictions on land that has been dedicated by our nation to 

maintain military readiness. 

Guam 

In some cases, the challenge of critical habitat designation has become an issue 

even when the relevant endangered species are not currently present. Under litigation pressure brought by environmental groups in Federal court, the U.S. Fish and 

Wildlife Service (USFWS) has proposed part of Guam as critical habitat for the Mariana Crow, Mariana Kingfisher, and Mariana Fruit Bat. Guam is the headquarters 

of Commander, Naval Forces Marianas (COMNAVMAR). Guam is a critical, forward 

deployed facility providing essential logistical and training support to our Fleet. 

This critical habitat designation proposal covers roughly 7,500 of the 8,840 acres 

that comprise the Naval Ordnance Annex. This Navy land is currently used as magazines for forward deployed ordnance storage, jungle training areas (special operations forces), and low-level aviation training areas by all military services. None 

of the species for which the habitat would be designated currently live on the land. 

Navy has formally objected to the proposed designation, noting in part that in 1994 

the Navy and USFWS entered into a Cooperative Agreement to establish the Guam 

National Wildlife Refuge. This 22,426-acre Refuge was created in lieu of a previously proposed critical habitat designation involving the same three species and 

covers 12,237 acres of Navy lands. 

The proposal under consideration calls into question what is meant by ‘‘special 

management consideration’’ under the ESA. We believe that under the Act’s present 

wording, if no special management considerations are needed because of other conservation plans or measures then the designation of critical habitat should be unnecessary. Both the Guam National Wildlife Refuge and the U.S. Fish and Wildlife 

Service approved COMNAVMAR Installation and Natural Resource Management 

Plan for the Ordnance Annex provides such special management considerations for 

the species’ habitats. Accordingly, designation of critical habitat should not be necessary. 

Pacific Missile Range Facility (PMRF) 

In February 2003, USFWS designated 177 acres of PMRF, Hawaii as critical 

habitat for a species of grass. PMRF is a long, relatively narrow strip of land on 

Kauai, critical to the testing and evaluation of weapons, and capable of supporting 

a broad range of training and testing, including amphibious landings and Missile 

Defense Agency efforts to rapidly achieve an operational ballistic missile defense capability. This designation, like those proposed on Guam, establishes critical habitat 

21

for a species that does not exist there. While the Guam and Hawaii critical habitat 

designations are current examples, a concern is that special interest groups may use 

litigation to compel designation of more and more military land as critical habitat. 

We are further concerned that these particular critical habitat designations are intended to provide precedence for future efforts to persuade Navy to agree to introduce species onto Navy lands—that is, to use a military training facility as a laboratory that could carry with it a readiness and training loss associated with unnecessary critical habitat designation. 

The Administration has proposed a legislative solution to this challenge that 

would rely on Integrated Natural Resource Management Plans (INRMPs) in lieu of 

designating critical habitat. DoD is already obligated to develop INRMPs 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 USFWS and state agencies, 

and these agencies recommend ways for DoD installations to better provide for 

species conservation and recovery. 

There are examples that indicate that INRMPs are an effective tool for protecting 

the environment. For example, at Naval Amphibious Base Coronado, the primacy 

of the military mission has been balanced against the conservation of endangered 

species with very positive outcome. We have been able to ensure continued effective 

training while greatly increasing the number of endangered sea bird nests. Through 

the Navy’s conservation and management programs, funded at $720,000 annually, 

Least Tern nests have increased from 187 to 825 (more than a four fold increase) 

and Western Snowy Plover nests have increased from 7 to 99 (nearly a 14 fold increase) in nine years. Similar good environmental stewardship by the Navy has 

been demonstrated in a Navy-wide sea-turtle conservation effort in which we invest 

about $1 million a year. 

Adopting this recommended change to the ESA would better balance training 

needs with the protection of threatened or endangered species. Changing the law 

to establish clearly that an approved INRMP provides sufficient species protection—

rather than designating more and more military land as critical habitats—would 

help retain an appropriate balance between the military Services’ training needs 

and endangered species protection. 

SUMMARY 

We face numerous challenges and adversaries that threaten our way of life. The 

President has directed us to ‘‘be ready’’ to face this challenge. To fulfill this directive, we must conduct comprehensive and realistic combat training—providing our 

Sailors with the experience and proficiency to carry out their missions. This requires 

appropriate use of our training ranges and operating areas and testing weapon systems. The Navy has demonstrated stewardship of our natural resources. We will 

continue to promote the health of lands entrusted to our care. We recognize our responsibility to the nation in both of these areas and seek your assistance in balancing these two requirements. 

I thank the Committee for your continued strong support of our Navy and on behalf of Commander, U.S. Pacific Fleet I ask for your consideration of the RRPI legislation. Passage of RRPI will help the Services sustain military readiness today in 

this time of war and in the future. 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 these 

goals. 

The CHAIRMAN. Thank you. 

Our next witness is Major General William G. Bowdon, III. 

STATEMENT OF MAJOR GENERAL WILLIAM G. BOWDON, III, 

U.S. MARINE CORPS, COMMANDING GENERAL, MARINE 

CORPS BASE, CAMP PENDLETON, CALIFORNIA 

General BOWDON. Chairman Pombo, Congressman Rahall, distinguished members of this Committee, thank you for the opportunity 

to come here today and express concerns about the problems of encroachment. 

My responsibilities as base commander at Marine Corps Base, 

Camp Pendleton, are to provide the best training opportunities 

22

possible for Marines and Marine units. We cannot be too well 

trained. We strive for training that emulates the way we think that 

we will fight. We schedule over 45,000 training activities a year at 

Camp Pendleton’s 125,000 acres, which is home to the 1st Marine 

Expeditionary Force and 18 endangered species. 

Encroachment is degrading our ability to provide realistic training. Training is burdened with regulatory restrictions. Artificialities in our training result from avoidance measures and workarounds being forced upon the operators by various environmental 

regulations. Our anecdotal experiences have been quantified. 

We have completed an 18-month quantification study. Over 700 

required military occupational specialty and unit tasks were assessed. Realistic tactical training can only be completed to 68 percent of standard. Training most inhibited includes off-road vehicular activity, digging, and earth moving. The primary encroachment factors inhibiting training and restrictions are from the Endangered Species Act. 

Yes, we are training, but the current work-arounds are problematic and the situation is only getting worse. Depletion of regional 

habitat continues. The regulators exclusions for critical habitat listings are being challenged in court. There is a clear trend toward 

regulation by litigation by special interest groups. 

We have a good stewardship record at Camp Pendleton. Our 

training footprint over the last 60 years of operations is light and 

complementary to good land stewardship. That record will continue 

to be maintained. If no action is taken, more training will be 

crowded off the base. 

We need your help. Your support is requested for DOD’s readiness and range preservation initiative, specifically, the critical 

habitat preclusion based on our Integrated Natural Resource Management Plan. 

In conclusion, we realize that urbanization will continue. We also 

realize that military training must not continue to be the bill payer 

for that. What do I need for your to do? First, we do not seek 

sweeping exemptions from the Endangered Species Act. We firmly 

believe that we can conduct realistic training and maintain our 

stewardship success through implementation of our Integrated 

Natural Resource Management Plan. These two missions are not 

exclusive of each other, but a balance is currently lacking. We need 

your legislative clarification, we need your legislative recognition 

and protection for our mission requirements at Camp Pendleton, 

such as are provided by the RRPI. 

This is a national issue, with shared responsibilities to find solutions. Given those solutions, I can return to my base and effectively 

balance my responsibilities. 

Again, the Marine Corps thanks you for your recognition of this 

important issue. I look forward to your questions. 

[The prepared statement of General Bowdon follows:]

Statement of Major General William G. Bowdon III, Commanding General, 

Marine Corps Base Camp Pendleton, United States Marine Corps 

Chairman Pombo, Congressman Rahall, and distinguished members of the Committee, thank you for the invitation to report on the effect encroachment is having 

on Camp Pendleton’s ability to support the training and readiness requirements of 

Marines and units operating on and deploying from this vital Marine Corps training 

23

installation. On behalf of the Marine Corps, I want to thank the Committee for its 

interest and support. Your attention reveals both a commitment to ensuring the 

common defense and a genuine concern for the welfare of our Marines and their 

families. 

BACKGROUND 

By way of background, Marine Corps Base, Camp Pendleton is the Marine Corps’ 

only training installation on the West Coast for amphibious operations—operations 

that involve the projection of U.S. force from the sea, which is a principle mission 

of the Corps. Camp Pendleton is the home of the 1st Marine Expeditionary Force 

(MEF), which as you know is heavily engaged in Operation Iraqi Freedom. Major 

subordinate commands of the MEF, the 1st Marine Division, the 1st Force Service 

Support Group, and elements of the 3rd Marine Aircraft Wing are also based at and 

train on Camp Pendleton. Elements of the MEF, Marine Expeditionary Units (MEU) 

are continuously deployed year-round, in support of operations and contingencies in 

the western Pacific and southwest Asia. 

Camp Pendleton’s mission is to provide ranges, training lands, and facilities on 

which Marines can train to achieve the highest possible state of combat readiness. 

Mr. Chairman, I cannot state strongly enough that the ability of our Marines to 

achieve their mission and survive in combat depends directly and completely upon 

the quality of leadership and training they receive. If we cannot provide our Marines, who train on and deploy from Camp Pendleton, with the ability to train as 

they will be expected to fight in combat, then we (the Marine Corps) will not have 

met our obligation, either to the Nation or to the Marines that put their lives on 

the line when called to do so. 

Within the past decade, the ability of Camp Pendleton to provide the realistic 

training environment necessary to prepare Marines for combat has eroded significantly. The factors that cause this degradation of mission capability are termed encroachment by the Department of Defense (DoD). Encroachments present an immediate, serious challenge to the capability of the Base to perform its military mission. 

Today, the encroachment factors with the potential to impede military training include urban growth, competing land uses, endangered species, cultural resources, 

and wetlands regulation, airspace restrictions, airborne noise, and air quality. 

While we face all of these encroachment factors at Camp Pendleton, endangered 

species issues are among our most pressing concerns. Camp Pendleton is rich in 

natural resources and biodiversity, including 18 species listed as threatened or endangered, which have coexisted with our military training and operations for some 

60 years now. Still, as the biodiversity of the region surrounding the Base has been 

steadily depleted by development, the value and regulation of Camp Pendleton’s resources have increased. Predictably, restrictions on the military training and operations that occur and need to occur on the Base have increased correspondingly. 

As you are aware, just over two years ago on March 20, 2001, congressional dialogue on encroachment impacts was opened by the Senate Armed Services Committee’s Subcommittee on Military Readiness and Management Support. Well before 9/

11, the Senate, and other congressional committees (such as the House Government 

Reform Committee and House Armed Services Committee) invited the Marine Corps 

to provide testimony on the subject of encroachment and its effect on our Title 10-

mandated national security missions. 

In past hearings, the Marine Corps reported on the impacts of encroachment by 

providing examples, primarily anecdotal, based on the experience of our trainers. 

We raised concerns with regard to an erosion of Camp Pendleton’s capability to provide realistic combat training for Marines and other services that train on our installation and ranges. Simply stated, the Marines who train at Camp Pendleton and 

the leadership of the Base, we who are responsible for providing the best possible 

training environment, have observed that encroachments in fact have degraded and 

continue to degrade the Base’s capability to provide for realistic combat training. 

Our commanders have reported that their tactical decisions increasingly are being 

driven more by restrictions and prescriptions to avoid impacts to protected resources 

than by the application of sound military doctrine. On a broader scale, the primary 

determinant for Camp Pendleton’s land use has been undergoing a fundamental and 

disturbing transition—from a Title 10-based, military driver with a responsibility 

for conservation, to a conservation-based driver within a military context. Marine 

commanders and small unit leaders should be taught to develop sound tactical 

schemes of maneuver based upon the mission, the enemy situation and disposition, 

the terrain, and sound tactics. Yet in the context of training at Camp Pendleton, 

they are required to plan their training scenarios to avoid protected species and resources and seek permissions and clearances to execute very rigid and tightly orVerDate 0ct 09 2002 10:39 Nov 04, 2003 Jkt 087420 PO 00000 Frm 00027 Fmt 6633 Sfmt 6621 J:\DOCS\86854.TXT HRESOUR1 PsN: KATHY
24

chestrated events. This situation not only significantly diminishes the training value 

of the exercise but also can instill undesirable habits in our Marines. 

QUANTIFYING ENCROACHMENT IMPACTS 

To verify the operator’s anecdotal experience, Marine Corp Base, Camp Pendleton 

has been engaged in an effort to develop a methodology and a mechanism that 

would help us to identify and quantify the encroachment factors that impact the 

Base’s ability to train Marines. 

A contracted study, just completed, conducted an assessment of 739 training 

tasks, as established by Marine Corps Orders, and concluded that encroachment has 

a measurable negative impact on field training at Camp Pendleton. The data indicated that all field training assessed at Camp Pendleton is affected to some degree 

by encroachment with ground training tasks being impacted the most. Realistic 

training is significantly degraded within prime maneuver corridors, training areas, 

and on the training beaches at Camp Pendleton due to encroachments. For 75 percent of the entities assessed within the context of a notional tactical scenario, the 

Base could support completion of required tasks to less than 85 percent of the established standard. For 37 percent of the entities assessed within the same scenario, 

the subject matter experts reported that Camp Pendleton could support the completion of required tasks to less than 70 percent of the established standard. The study 

determined that a Battalion Landing Team, which is the combat power of a MEU, 

could complete its required non-firing tasks to less than 68 percent of the Marine 

Corps standard in a notional tactical scenario. It is precisely the type of training 

that is required to prepare Marine Corps MAGTFs for deployment and combat that 

also is most affected by encroachments at Camp Pendleton. 

As Figure 1 (A–1) reflects, the effects of encroachment on training increase according to the relative complexity and size of the training event. In general, when tactics 

are factored into the assessment, the larger the unit involved and the more advanced the task the more significant and adverse the impacts of encroachment on 

the task completion percentage. In the same vein, the study concluded that the more 

complex and integrated combat training, involving multiple combat elements, maneuver, and tactical operations, generally is more restricted by encroachment than 

intermediate unit level training. Intermediate unit training, in turn, generally is 

more restricted than individual training. 

The quantification study confirms that the types of training most inhibited by encroachment include digging, earth-moving activities, and off-road vehicular movement. Limitations on digging have implications far beyond the simple foxhole or 

fighting position, as important as that is. If individual digging is highly restricted, 

or regulated, then imagine the difficulty of preparing company or battalion defensive 

positions. Earthmoving activities to construct emplacements for vehicle or weapons 

systems, such as artillery pieces, and vehicle recovery operations cannot be accomplished on any significant operational scale. In this case we find the data being reinforced by anecdote, by our operators’ real world experiences. 

In testimony in May of last year before the House Government Reform Committee, the Commanding Officer of the 15th MEU, who had just returned from Operation Enduring Freedom, Afghanistan, stated that ‘‘...The establishment of the security and defensive posture at this position was, in reality, the first time the Marines were able to actually dig and construct appropriate fighting positions required 

for protection.’’ He added that ‘‘...This technique, which should be second nature to 

Marines in a combat theater, is rarely used in training due to environmental restrictions.’’

Our quantification effort also has revealed that regulatory restrictions to limit impacts or potential impacts to protected natural and cultural resources constitute 

over 70% of the primary encroachment factors affecting Camp Pendleton’s capability 

to accommodate essential military training. Compliance with the Endangered 

Species Act is the leading encroachment factor impacting military training and operations at Camp Pendleton. Despite declarations to the contrary by some groups, our 

quantification analysis indicates that physical obstacles, such as Interstate 5 and 

the nuclear power generation plant, both of which have been in place for decades, 

are not the leading encroachment factors confronted by our forces as they train 

aboard Camp Pendleton. Our operators insist that the most significant degradation 

of their training has occurred over the last 10 to 15 years, coincidental with unfettered urbanization and the associated depletion of biodiversity and habitat fragmentation, and the resultant increase in numbers and regulation of endangered 

species and resources. Unlike infrastructure, which is fixed in time and space, most 

endangered species move, they often multiply when effectively managed, and additional species become listed as a result of factors over which the Marine Corps has 

little or no control. 

25

Allow me to provide another real world experience that reinforces this finding. Recently, Marines of the 1st Marine Division approached my staff with a real-world 

operational requirement to conduct vehicle recovery operations in our Base’s lake 

and ponds and in one of our most highly protected areas, the Santa Margarita River 

(SMR) estuary. The estuary training was most important to our Marines because 

it is the largest and only estuary with significant tidal action. There the crews 

would be subject to changing conditions associated with tidal flows, they could be 

trained to recognize the optimal crossing points that would support tracked vehicle 

operations with reduced risk of becoming mired, and to conduct recovery operations 

while maintaining the momentum of the advance. The estuary also is a prime nesting and management area for endangered California least terns and western snowy 

plovers; it also is considered essential fish habitat and is designated as critical 

habitat for the tidewater goby. The unit’s request was initiated during the non-nesting period for the least terns and snowy plovers. From the time the request was 

received, it took two months, and a commitment to implement required avoidance 

measures, to process the request and receive regulatory clearances for our Marines 

to conduct their training in the lake and ponds. The process required four months, 

however, to accomplish the required surveys, prepare necessary documentation, conduct the consultation, and receive regulatory clearances for training in the SMR estuary. Thus, even with all parties providing expedited, priority handling of this 

operational requirement, the ultimate result was that recovery operations were limited to the lake, as the unit was mobilized and deployed to combat prior to being 

able to train in the estuary. This is not acceptable. 

For years these units have been required to train for vehicle recovery operations 

by use of a single ditch, specifically established for such operations. One vehicle, one 

at a time, could pull into the ditch, get stuck and be pulled from the mire. In no 

conceivable way can this ‘‘canned’’ process be construed to prepare a Marine in vehicle recovery operations for a real-world theater situation. This limited level of training does not begin to replicate the dynamics of vehicle recovery operations while 

under fire or pressure to maintain the advance, the integrity of an assault and, ultimately, the capture of an objective. 

The tragedy of this situation is that for many years Camp Pendleton Marines 

have accepted that they could not conduct these required operations on the Base—

either individually or as a unit—within a tactical scenario. Hence, a critical skill set 

was allowed to atrophy. A related aspect of great concern, highlighted both by these 

incidents and by the quantification study, is not to be missed. That lesson is that 

these deficiencies are then carried over to and absorbed by the major commands to 

which the Marines are joined and with which they deploy for combat. 

This is not to suggest that we can anticipate or should expect the opportunity to 

rehearse every potential complex, combat evolution. However, what we have learned 

over the past decade, now reinforced by our recent quantification study, is that we 

require key areas of Camp Pendleton to be capable of providing an optimal combat 

training environment. Unit commanders and small unit leaders must be able and, 

indeed, required to exercise and hone their tactical decision-making skills within the 

context of scenarios that allow for free play and require instantaneous and correct 

decision-making. 

Restrictions on Camp Pendleton’s amphibious landing beaches are well documented in the congressional records, so I will not restate them here except to note 

that amphibious assaults, raids, and withdrawals are core missions of our Marine 

Expeditionary Units, Special Operations Capable (MEUSOC’s). In addition, the 

Navy and Marine Corps strategy of From-the–Sea and Over-the–Shore Projection of 

Force and Sustainment operations requires that we have beaches where realistic 

amphibious operations can be conducted. Our Marines must have some beach areas 

available where they can recreate conditions that they expect to encounter in the 

execution of their global contingencies. In that regard we continue to work closely 

with our regulatory agencies to reduce those restrictions related to protected resources on our primary training beaches and other areas of the Base to provide 

more open and realistic use of these crucial training areas. 

We are concerned, however, that, in today’s climate of regulation-by-litigation, certain laws may not support efforts to accommodate military training and mission requirements in regulatory determinations and opinions. Thus, we view the Department of Defense’s Readiness and Range Preservation Initiative as pivotal in the effort to halt the steady erosion of the capability of our installations and ranges to 

provide realistic training experiences for present and future Marines, units and 

weapons systems. 

26

READINESS AND RANGE PRESERVATION INITIATIVE 

Migratory Bird Treaty Act 

The provision enacted by Congress last year, as a result of DoD’s Initiative, allows 

some take of migratory birds, incidental to military training, while requiring that 

such take be minimized. To operators in the field this provision provides significant 

benefit as our training activities were previously subject to potential litigation and 

injunction. Be assured that Camp Pendleton will, through its Integrated Natural 

Resource Management Plan process, continue to identify measures to monitor, minimize and mitigate—to the extent practicable—adverse impacts to migratory birds 

that may be attributable to our military readiness activities. 

Buffer Acquisition 

Through last year’s Defense Authorization Bill, Congress granted the authority to 

military departments to partner with non-governmental organizations, and State 

and local governments to acquire land adjacent or proximate to military installations to prevent incompatible development, and to preserve habitat that may eliminate or relieve current or anticipated environmental restrictions that could interfere 

with military training, testing or operations. Already, Camp Pendleton has initiated 

a partnership effort, the South Coast Conservation Forum (SCCF), to investigate opportunities to acquire interest in lands that could assist in the conservation of many 

of the Federally protected species in the region. Participating in the SCCF are representatives of Orange, Riverside and San Diego Counties, and non-governmental 

conservation organizations such as The Nature Conservancy, Trust for Public Land, 

Sierra Club and Endangered Habitats League. Though driven by differing concerns 

and motivations, this group is quickly finding common purpose for acquiring lands 

available from willing sellers to support compatible land use and help achieve both 

encroachment relief and resource conservation objectives. 

Critical habitat 

Marine Corps concerns about the potential impacts of critical habitat on training 

at Camp Pendleton often have been described to the Congress, the U.S. Fish and 

Wildlife Service (Service) and the public. In February 2000, the Service proposed to 

designate nearly one-half of Camp Pendleton, including all or part of 26 training 

areas, as critical habitat for the coastal California gnatcatcher. Subsequent, geographically overlapping proposals for several additional species expanded the potential designation of critical habitat to include 57 percent of Camp Pendleton’s 125,000 

acres, Figure 2 (A–2). In response, the Marine Corps provided detailed comments 

voicing serious concerns about the impacts of these proposals on training at Camp 

Pendleton. In his letter forwarding these comments to the Director of the Service, 

the Commandant of the Marine Corps stated: ‘‘Increasingly, limitations on our land 

use flexibility present a major readiness issue. At stake is the success and survival 

of our Nation’s Marines and Sailors in combat. The proposed critical habitat squarely implicates these urgent military readiness concerns.’’ (Commandant of the Marine 

Corps, Letter to Director, U.S. Fish and Wildlife, April 6, 2000.) 

In October 2000, after extensive inter-agency dialogue, both Camp Pendleton and 

MCAS Miramar were excluded from the final gnatcatcher critical habitat rule, on 

the basis of Integrated Natural Resources Management Plans (INRMPs) and the 

finding that for Camp Pendleton the benefits of exclusion outweighed the benefits 

of designation under ESA Section 4(b)(2). Subsequently, the Service applied these 

approaches to exclude military lands in critical habitat proposals for additional 

species on Camp Pendleton and MCAS Miramar, and to other military lands, including Vandenburg Air Force Base, Camp Parks and Camp San Luis Obispo, California. 

The Natural Resources Defense Council (NRDC) immediately sued the Service alleging that the exclusion of Marine Corps lands from critical habitat violated the 

ESA. These contentions have not been resolved, but have been preserved after the 

Service petitioned to withdraw and re-examine the gnatcatcher critical habitat rule. 

As directed by the court, the Service has re-proposed critical habitat for the 

gnatcatcher and the San Diego fairy shrimp within this past week. The Service has 

broadly excluded Camp Pendleton from both proposals; approximately 7700 acres 

are currently proposed as critical habitat for the gnatcatcher and 850 acres of Base 

lands are proposed for the San Diego fairy shrimp. Similar to such exclusions previously applied to Camp Pendleton, the Service has indicated its understanding of 

the potential adverse impacts to military training and that those impacts outweigh 

the potential benefit to the species provided by designation of critical habitat for 

these species. While we recognize and appreciate the Service’s efforts to consider the 

relevant impacts to our military mission, we have every expectation that, should the 

final rules for these species also exclude significant portions of Camp Pendleton, 

27

there will be a renewal of litigation challenging those exclusions. Thus, the potential 

remains that 57% of Camp Pendleton lands could be designated as critical habitat, 

pending court determinations or a legislative remedy. In the meantime, developing 

case law has had much to say about critical habitat, with a Federal district court 

opinion holding that the Service’s policy on critical habitat designation is unlawful. 

Designation of military lands as critical habitat presents a complex public policy 

problem in sharp focus. The Service has thoughtfully attempted to address this 

problem through regulatory critical habitat exclusions. These efforts, however, repeatedly have been challenged, and undoubtedly will continue to be challenged, in 

litigation that disregards military readiness concerns. Having exhausted efforts at 

administrative and negotiated approaches to solutions, the Marine Corps looks to 

Congress for guidance. We believe that legislative exclusion of military lands from 

critical habitat rules is both appropriate and necessary, and is the only solution that 

will provide the certainty and flexibility we need to train effectively. The critical 

habitat provision of DoD’s Readiness and Range Preservation Initiative proposal, 

which would exclude military installations and ranges with approved INRMP’s in 

place from designation of such lands as critical habitat, would provide measured and 

much needed relief from related encumbrances on our military mission activities. 

Findings 

Among the most important aspects of DoD’s RRPI for Camp Pendleton, and as 

Chairman of the West Coast Regional Review Board I speak for all Marine Corps 

installation commanders in the Southwest, are the findings that provide congressional recognition of the fundamental purpose for the existence of our installations 

and ranges. We consider codification of these findings to be absolutely essential to 

address core encroachment issues by affirming the principle that our military installations, ranges, and airspace exist to ensure military preparedness. Such language 

is necessary to establish the basis, the balance point, for inclusion of national security requirements in regulatory determinations. Although the basic principle that 

military lands exist for military purposes, as articulated by the RRPI’s findings, 

would seem self-evident, we find that is generally not the case. 

That said, we do not understand the RRPI to be seeking sweeping exemptions 

from our Nation’s environmental laws. We see this initiative to be narrowly focused 

on a few important resource-related laws and only as they may relate to or unacceptably inhibit our military readiness capabilities that are required by Title 10, 

U.S.C. The RRPI does not lessen to any degree my responsibility to fully comply 

with laws that protect both the health and safety of the citizens of our neighboring 

communities and our natural resources. Camp Pendleton’s record clearly reflects our 

commitment to compliance and responsible stewardship of this national treasure entrusted to our care. I can assure you that Camp Pendleton is committed to continue 

to advance both compliance and responsible management of our resources to support 

the sustainable use of our ranges. 

STEWARDSHIP 

In that regard, Camp Pendleton has a proven record of diligent and responsible 

stewardship of the environment, including the natural resources entrusted to our 

care. We remain committed to managing all of our resources, including listed 

species, in compliance with applicable law. Over the years, our military training has 

proven to be compatible with healthy ecosystems, and our stewardship both enhances that compatibility and provides assurance of sustainable use. A fundamental 

principal of our land use and management has been, and will remain, retention of 

the large, contiguous open spaces necessary for realistic training. 

At Camp Pendleton, previous Base commanders and I have restricted infrastructure development to less than 15% of the Base. When additional facilities have been 

required, our preferred approach has been to refurbish or replace outdated facilities, 

or to build within existing developed areas. This disciplined land management, coupled with the fact that military training is a relatively low-impact land use (David 

S. Wilcove, et.al., Quantifying Threats to Imperiled Species in the United States, 48 

Bioscience 607, (August 1998)), has resulted in the continuing presence of large 

tracts of natural habitat beneficial to the wildlife that occupies our lands. In marked 

contrast to the typical development practices found in other parts of the region, 

Camp Pendleton’s experience is that species, both Federally listed and not listed, 

coexist with our operations and flourish under our management. 

In October of 2001, Camp Pendleton published and began implementation of our 

Integrated Natural Resources Management Plan (INRMP). The import of the 

INRMP is that it addresses ecosystem requirements holistically, considering the 

human element (military mission) as an integral part of the ecosystem, and integrates our resource management with our mission essential training and operations. 

28

Indeed, the Sikes Act Improvement Amendment (SAIA) requires that INRMP implementation support mission and not constitute a ‘‘net loss’’ in the capability of the 

installation to support mission requirements. So as land is managed to provide long 

term, renewal of resources, both the mission and species (listed and unlisted) benefit. It is important to note that implementation of INRMP’s is complementary to 

the Endangered Species Act (ESA) and does nothing to diminish the requirement 

to comply with the ESA. In fact, Camp Pendleton’s INRMP is structured to include 

all regulatory agreements and requirements established through consultation under 

the ESA, thereby providing heightened visibility for those commitments. 

Over the past five years the Marine Corps has invested, on average, approxi- mately $32 million per year in Camp Pendleton’s environmental program. Generally, over $4 million per year has been applied to support our natural and cultural 

resources programs, with an average of $1.7 million applied directly to threatened 

and endangered species related requirements. The species depicted in Figure 3 (A–

3) represent indicator species for the primary ecosystems that comprise Camp 

Pendleton—riparian, beaches, and uplands. The least Bell’s vireo (riparian species), 

least tern (beach species) and coastal California gnatcatcher (uplands species) have 

enjoyed significant success under Base management. The Fish and Wildlife Service 

has established conservation goals, for some of the listed species we manage, in recovery plans and in the course of consultations under ESA. For the least Bell’s vireo, 

the Base’s goal of 300 breeding pairs was established in 1995. Today, we have exceeded that goal by 150%, with over 750 pairs of this species, even considering the 

significant drought conditions of the past three years. Similarly, for the least tern, 

the Service’s 1980 recovery plan established the recovery objective for the entire 

species at 1200 pairs distributed in 20 areas over its entire range. Today, Camp 

Pendleton alone supports 1000 pairs of least terns. 

As the populations of listed species increase on Base and as more species that use 

our habitats become listed, associated restrictions have and will continue to blanket 

our training lands with increasing limitations on our ability to support mission-essential training requirements. The presence of multiple listed species on Camp Pendleton and required avoidance and minimization measures impose significant constraints on where we train, when we train, and how we train. Hence our dilemma 

and the reason for my testimony before you today—the costs of endangered species 

compliance and our resource management programs transcend mere dollars. As our 

quantification assessment concludes, the true bill-payer is realistic combat 

training—and for Camp Pendleton, that has become a source of grave concern. 

CONCLUSION 

Camp Pendleton is the Marine Corps’ only amphibious training base for the west 

coast, and the only west coast installation capable of supporting combined and comprehensive air, sea and ground combat training. Moreover, its proximity to the 

Navy’s homeport at San Diego is strategically significant in supporting mobilizations and deployments to and contingencies for the western Pacific and Southwest 

Asia. The Base is a cornerstone of the Marine Corps’ training range complex in the 

southwestern United States, which includes the Marine Corps Air Ground Combat 

Center in 29 Palms, the Barry M. Goldwater range near MCAS Yuma, Arizona, and 

the Chocolate Mountains range in the southeastern corner of California. Each installation plays an integral role in the training of Marines and MAGTFs for combat 

operations. Many of these ranges also are utilized by Marine units from Camp Pendleton to accomplish specific training requirements and as ‘‘workarounds’’ necessary 

to obtain required training that cannot be satisfactorily completed at Camp Pendleton. Workarounds are not a satisfactory solution. Since these events then must 

be accomplished in a segmented fashion that is isolated in time, space, and context, 

much of the tactical decision-making, timing, and training value is lost. 

Workarounds are insidious in nature, in that they provide the illusion that the 

training has been accomplished. 

While encroachment concerns presently are acute at Camp Pendleton, the Marine 

Corps also is concerned about encroachments at all installations and ranges in the 

region. As training opportunities become more encumbered with restrictions or are 

lost altogether and as encroachment pressures continue to mount—locally, regionally, nationally, and overseas—threats to readiness from the loss of range capabilities are an immediate and serious concern. 

Solutions are necessary. A 1992 study of military training in the context of environmental regulation concluded that potential conflicts present ‘‘an unusually profound public policy problem.’’ (‘‘Two Shades of Green: Environmental Protection and 

Combat Training’’ (Rand 1992).) At Camp Pendleton, we face this profound problem 

every day. Conflicts or potential conflicts between realistic training and environmental rules, the challenges presented by urban growth, and other competition for 

29

scarce land, sea and airspace training resources must be resolved in a way that does 

not further degrade training. 

Again, I thank you for the opportunity to present the Marine Corps’ concerns 

though the eyes of one of its installation commanders. I trust that this testimony 

will be helpful to your distinguished Committee. Let me assure you that we at 

Camp Pendleton will continue to be a responsible, effective steward of our environment and our natural resources. We also will continue our efforts to identify and 

quantify the effects of encroachments on our Federally mandated missions. With 

your assistance and support of DoD’s Readiness and Range Preservation Initiative, 

I am confident that we can achieve and maintain the appropriate balance between 

military readiness and competing demands for scarce resources. This we must do 

to ensure that your Marines and their units will be trained and ready to deploy at 

the highest possible readiness when called by our Nation to do so. 


86854.001
30

The CHAIRMAN. Thank you. 

Our next witness is Colonel Frank C. DiGiovanni. 


86854.002 86854.003
31

STATEMENT OF COLONEL FRANK C. DiGIOVANNI, U.S. AIR 

FORCE, CHIEF, RANGES, AIRFIELDS AND AIRSPACE, 

OPERATION AND REQUIREMENTS DIVISION, AIR COMBAT 

COMMAND 

Colonel DIGIOVANNI. Mr. Chairman, distinguished members of 

this Committee, thank you for the opportunity to speak to you on 

this very important issue. 

I would like to start off by giving you a bit of my background. 

I have 2,000 hours in the B-52H, the F-15A, and the A-37, a close 

air support aircraft. I have 11 years of experience in the combat 

training range community. I commanded the 99th Range Support 

Squadron at Nellis Air Force Base, responsible for the management 

of 3.1 million acres of the Nevada Test and Training Range. I 

worked combat training range equipment requirements at the 

major command level, and also range policy at the Air Force level. 

I currently serve as the Chief of Ranges, Airfields and Airspace Operations and Requirements at Headquarters, Air Combat Command, Langley Air Force Base, where we are responsible for the 

management of nine combat training ranges on 4.5 million acres of 

land. 

How will the Integrated Natural Resource Management Plan 

Provision of the Readiness Range Preservation Initiative help the 

Air Force conduct its readiness training? First let me say that 

we’re constantly upgrading and reconfiguring our ranges. Let me 

give you a few examples. 

Prior to Operation Enduring Freedom, we built new target sets 

on the Nevada Test and Training Range, and also on the Utah Test 

and Training Range, that resembled Taliban caves and their encampments. These unique target sets were used to prepare our aircrew members for combat operations just prior to their deployment 

to Afghanistan. 

Another example, prior to Operation Enduring Freedom—I’m 

sorry, Iraqi Freedom—bomber and fighter aircrew members worked 

extensively to develop new ground-directed attack tactics against 

urban target sets and highly mobile Scud missile systems on the 

Nevada Test and Training Range. 

The effectiveness of these tactics was graphically demonstrated 

when an Air Force B-1 dropped four joint directed attack munitions 

on a Baghdad restaurant suspected to be a Saddam Hussein hideout. From notification to bombs on target, a mere 15 minutes. 

In these two examples, U.S. Fish and Wildlife Service approved 

INRMPs provided us the flexibility to rapidly respond to worldwide 

contingencies while protecting threatened and endangered species, 

through a carefully thought out planning process. 

Continued access to these tremendous national training resources is essential to our airmen going into combat, with the 

unique confidence that they are the finest trained Air Force in the 

world. Our measure of success is simple: we want a lethal, combat 

survivable warfighter that will come home when the hostilities are 

over. 

Thank you for the opportunity to speak to you today, sir. 

[The prepared statement of Colonel DiGiovanni follows:]

32

Statement of Colonel Frank C. DiGiovanni, Chief, Ranges, Airfields and 

Airspace, Operations and Requirements Division, Air Combat Command 

Introduction 

Mr. Chairman, members of the Committee, I greatly appreciate the opportunity 

to address you today on the Readiness and Range Preservation Initiative (RRPI) 

and the potential benefits it offers to our ability to train if it were enacted into law. 

I’d like to start off by giving you a bit of my background. I have over 2000 hours 

in the B–52H, the F–15A and A–37B (close air support) aircraft and have almost 

11 years of experience in the range community. I commanded the 99th Range Support Squadron at Nellis Air Force Base which is responsible for the management 

of the 3.1 million acre Nevada Test and Training Range. I also worked combat training range equipment requirements at the major command level and range policy at 

the HQ Air Force level. I currently serve as the Chief of Ranges, Airfields and Airspace Operations and Requirements Division at Headquarters Air Combat Command (ACC). 

Our ranges and training airspace are critical national assets that allow the Air 

Combat Command to develop new tactics and train our air forces to be lethal and 

survivable. At a time when increased OPSTEMPO, aging equipment, and personnel 

challenges are threatening our readiness, it is critical we have to the maximum extent possible, unencumbered use of these valuable resources to prepare our 

warfighters for combat operations. 

The loss or restricted use of ranges and operating areas forces us to find 

workarounds or to delay and reschedule needed training. These constraints inhibit 

our ability to test and train realistically and degrade our combat readiness. As pressures due to encroachment continue to grow, managing the operational and financial 

risks without compromising our mission will become increasingly difficult. 

The Air Combat Command, in partnership with our counterparts in the other 

Services and the community, is committed to addressing these challenges. We are 

confident in our ability to provide the necessary balance between operational needs, 

environmental protection and the needs of the community and RRPI will help us 

do that. 

The Readiness and Range Preservation Initiative will provide changes to specific 

environmental statutes needed by the military services and protect access to our 

training resources while continuing to protect the environmental resources of the 

lands entrusted to us by the public. 

Species and Habitat Protection 

The critical habitat clarification of RRPI is a very important component of this 

initiative. We have over 25 Federal listed threatened and endangered species and 

64 species of concern on approximately 4.5 million acres of ACC rangeland. My Division is composed of an interdisciplinary team of aviators, PhD biologists, civil engineers, a public affairs officer, airspace managers and an environmental attorney all 

charged with the objective of maximizing the use of the ranges we manage while 

protecting the priceless natural and cultural resources that we have on our ranges.. 

Additionally, ACC ranges employ nearly 50 full-time natural and cultural resource 

management personnel throughout the command who assist the headquarters with 

this charter. We also consult extensively with U.S. Fish and Wildlife Service (FWS) 

and the state game and fish agencies on the development and implementation of 

our Integrated Natural Resource Management Plans. We ensure that these plans 

incorporate the best available science and credentialed expertise to minimize the impacts of our training operations. 

Through the use of Integrated Natural Resource Management Plans, in partnership with the Department of Interior, we have had great success in managing the 

lands entrusted to us by the public. For example, the Nevada Test and Training 

Range supports the Bureau of Land Management’s wild horse program on 390,000 

acres of the NTTR. In the southern portion of the range we have fenced target areas 

to ensure the endangered desert tortoise is not adversely affected by our operations. 

On the Barry M. Goldwater Range (BMGR) in Arizona, which is used extensively 

by ACC A–10 aircraft, Luke Air Force Base personnel assigned to the Air Education 

and Training Command track the movement of Sonoran pronghorn on the range. 

The DoD flies about 70,000 sorties yearly on the BMGR, and our biologists monitor 

the target areas for pronghorn movements. If any are spotted within a two-hour period prior to bombing, the live 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 Pronghorn. 

33

We are constantly upgrading and reconfiguring our ranges. For example, just 

prior to OPERATION ENDURING FREEDOM, both the NTTR and the Utah Test 

and Training Range (UTTR) constructed simulated cave targets similar to those in 

use by the Taliban and Al Queda. These realistic target simulations were used to 

provide our warfighters with critical, mission rehearsal training, thereby improving 

their lethality in combat. These skills proved very valuable during our attacks on 

Taliban and Al Queda strongholds. 

We would not have had the required flexibility to conduct this essential training 

on NTTR and UTTR if we had designated critical habitat for the desert tortoise or 

other species in and around the simulated cave targets. This is because the time 

required to prepare biological assessments and complete consultations with FWS 

would not have been sufficient given the quickness in which wartime operations 

were commenced after 9/11. 

Given these examples, superimposing critical habitat designation on top of our integrated management plans does not appear to provide added benefit to T&E 

species. However, a critical habitat designation, would have an adverse impact on 

our ability to quickly adapt and reconfigure the training environment to respond to 

evolving real world combat situations. 

Range Residue Removal 

As a range manager, the clarifications proposed in the RRPI regarding military 

munitions are also critically important to me. Most of the weapons we drop on our 

ranges are training munitions, either wholly inert or with a spotting charge. We 

maintain our ranges by periodically clearing off all these items, demilitarizing them, 

then sending the metals off to steel mills for recycling or to permitted landfills. 

The RRPI will mirror the existing Military Munitions Rule by clarifying that munitions used for their intended purpose—dropped on an operational range—will not 

be considered a hazardous waste under the Resource Conservation and Recovery Act 

(RCRA) nor a release under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). This would allow us to manage our ranges 

safely, responsibly and cost effectively while protecting the environment and the 

public. 

ACC has instituted a command-wide, range residue removal regime in which we 

invest approximately $4 M annually. This regime consists of a four-step process. 

First our explosive ordnance disposal experts and range operations and maintenance 

contractors clear the munitions and residue from the range target areas. 

Unexploded items are rendered safe and inert items are consolidated at a holding 

area on the range. Second, the munitions and residue are demilitarized by shearing 

or crushing with specialized equipment and then are certified free of energetic material. Next a ‘‘third party’’ explosive ordnance disposal expert validates the first certification. Fourth and finally, a government quality assurance inspector oversees the 

entire operation. In the five and half years since ACC instituted this program, we 

have had zero mishaps or environmental violations and have successfully removed 

an estimated 79 million pounds of residue from our ranges. 

If these materials were considered hazardous waste then we would not be able 

to conduct these operations without cost-prohibitive permits and infrastructure. Securing these permits and building the infrastructure would not add any additional 

environmental protection. 

RRPI does confirm that, in the rare instance, that any munitions or munitions 

constituents land or travel off-range, that they would be regulated under the Comprehensive Environmental Restoration, Compensation and Liability Act (CERCLA). 

If munitions-related-material moves off the range, it still must be addressed promptly under existing environmental laws. Moreover, if munitions cause an imminent 

and substantial endangerment on-range, EPA would retain authority to address it 

on range under CERCLA. 

These clarifications would allow us to conduct realistic, cost effective training on 

our operational ranges yet continue to be good stewards of the lands entrusted to 

us. 

Summary 

Military training ranges are protected lands and vital national resources. Each 

range typically has small impact areas where munitions are employed, surrounded 

by large safety buffers where wildlife thrives in relatively undisturbed natural 

habitat. In fact, our ranges have been frequently described as ‘‘islands of biodiversity’’. By closely managing these areas, in cooperation with the FWS and the state 

game and fish agencies, we are ensuring that our training activities are compatible 

with the continued existence of these species. 

34

Conclusion 

The Readiness and Range Preservation Initiative will provide needed clarification 

to specific environmental statutes and protect access to our training resources while 

continuing to protect the environmental resources of the lands entrusted to us by 

the public. 

As we speak, the men and women of Air Combat Command are risking their lives 

over southwest Asia as part of our nation’s global war on terrorism. Coalition air 

forces successes are due in large measure to the high fidelity training enabled by 

access to these tremendous national resources. These assets ensure our national defense by allowing these brave airmen go into combat with the unique confidence 

that they are the finest trained Air Force in the world. This essential confidence 

exists because of a continuing commitment by the U.S. government and the people 

of this country to provide the very best training resources to our warfighters. We 

believe that the provisions of the Readiness and Range Preservation Initiative will 

help us to continue to provide our airmen the training environment needed to ensure their lethality and survivability when prosecuting our national military objectives in the future. 

The CHAIRMAN. Thank you. 

Our next witness is Rear Admiral Jeff Hathaway. 

STATEMENT OF REAR ADMIRAL JEFFREY J. HATHAWAY, U.S. 

COAST GUARD, U.S. DEPARTMENT OF HOMELAND SECURITY 

Admiral HATHAWAY. Thank you, Mr. Chairman. On behalf of the 

Coast Guard Commandant, Admiral Tom Collins, I thank you for 

this opportunity to appear before the Committee today. 

Before I begin my brief statement, I will point out that, although 

I sit here today alongside my DOD uniform brethren, the Coast 

Guard is part of the new Department of Homeland Security. 

The Endangered Species Act and the Marine Mammal Protection 

Act helped form the foundation for the Coast Guard activities supporting our strategic goal, protecting America’s natural resources. 

The Coast Guard is a primary maritime enforcement agency for 

regulations related to both Acts. The applicable regulations require 

a delicate balance between day to day operations and full compliance with the Act. 

Ironically, enforcement actions, which are of great benefit to marine mammals and other protected species, oftentimes place the 

Coast Guard units at greatest risk of violating the Acts. For example, Coast Guard units in New England enforce dynamic area management zones designed to protect northern right whales. To accomplish this, units must enter areas where right whales are certain to be found to ensure fishermen comply with regulations designed to reduce the probability of entanglements. Another example 

is when Coast Guard units in Florida enforce manatee speed zones 

and marine sanctuaries. 

The Coast Guard has established specific guidelines and procedures to ensure our operations are currently conducted at minimal 

risk to protected species and their habitats. These include relocating training areas away from protected species habitats, training shipboard lookouts in marine mammal identification, and requiring Coast Guard vessels to reduce speed when marine mammals are present. 

The proposed amendments impact another Coast Guard strategic 

goal, however, and that is national defense. As you are well aware, 

the Coast Guard defends the Nation as one of our five armed 

services, taking full advantage of its unique and relevant maritime 

35

capabilities to support the national security strategy. Coast Guard 

units and personnel use Department of Defense facilities and 

ranges to maintain military readiness, and our concerns regarding 

the ability to maintain military readiness levels parallel those of 

the Department of Defense and some of the oral statements that 

you just heard from my DOD cohorts. 

We in the Coast Guard have carefully reviewed the proposed 

amendments, specifically focusing on our strategic goals of protection of the natural resources and national defense. These amendments promote a balance, in our opinion, that ensures the Nation’s 

military readiness is not compromised, while still providing adequate protection for marine mammals and endangered species. The 

Coast Guard requests that you support the proposed amendments. 

Thank you. 

[The prepared statement of Admiral Hathaway follows:]

Statement of Rear Admiral Jeffrey J. Hathaway, Director of Operations 

Policy, Department of Homeland Security, U.S. Coast Guard 

Good afternoon, Mr. Chairman and distinguished members of the Committee. It 

is a pleasure to appear before you today to discuss H.R. 1835, which is still under 

review by the Administration. As you know the Administration has recently introduced its own Readiness and Range Preservation Initiative, which includes some 

similar provisions to H.R.1835. 

Since one of the Coast Guard’s five strategic goals is Protection of Natural Resources, we take very seriously the provisions of the Endangered Species Act and 

the Marine Mammal Protection Act. Not only does the Coast Guard develop operational guidance and procedures to ensure our compliance with the acts, we also enforce the regulations associated with these Acts in conjunction with National Oceanic and Atmospheric Administration (NOAA) Fisheries and the U.S. Fish and 

Wildlife Service. 

Many of the Coast Guard’s responsibilities require our units to conduct operations 

which have the potential to disrupt marine mammal and endangered species behavior patterns. The Coast Guard frequently operates in areas where marine mammals 

or endangered species are present. When so doing, the Endangered Species Act and 

the Marine Mammal Protection Act can come into play because the mere presence 

of our ships and aircraft have the potential to disrupt protected species behavior. 

Ironically, this includes Coast Guard activities undertaken to protect marine mammals, protected species and other living marine resources. Our efforts to enforce 

fisheries regulations, right whale approach regulations, Steller sea lion and sea turtle critical habitat areas, whale watching regulations, harbor porpoise pinger regulations, and manatee speed zones ensure a rich, diverse sustainable ocean environment that promotes survivability of protected species. 

Beyond law enforcement duties, Coast Guard buoy tenders occasionally find seals 

and sea lions hauled out on navigational aids (buoys) that must be serviced or replaced. By servicing navigational aids, we protect marine mammal and endangered 

species habitats from the impact of potential ship groundings and collisions. However, we also thereby raise the specter of operating in violation of the Acts. In addition, responding to non-emergent Search and Rescue and oils spills place our assets 

in potential conflict with both Acts. 

To ensure that we comply with both the Marine Mammal Protection Act and the 

Endangered Species Act while engaged in our day-to-day operations, we have established specific guidelines and procedures to ensure our operations mitigate risks to 

protected species and their habitats. Examples include relocating training operations away from protected species habitats, conducting operations such as engine 

trials during non-intrusive times of the year, training shipboard lookouts in marine 

mammal identification, and operating ships at reduced speeds when marine mammals are present. Nonetheless, except for emergency search and rescue operations, 

none of our operations, including those that ensure military readiness and those 

that benefit marine mammal and endangered species populations are exempt from 

the Endangered Species Act and some may not be covered by the provisions under 

which taking may be authorized under the Marine Mammal Protection Act. 

Our day-to-day operations in the marine environment place us in situations where 

we are often the first or best responders to deal with efforts to assist protected 

36

species that may be in distress. In the specific instances when the Coast Guard is 

responding to a protected animal in distress, we either have received permits or 

have been added to NOAA Fisheries permits to ensure our compliance with the 

Acts. 

However, the Coast Guard’s pursuit of an incidental take authorization, at least 

with respect to its operations that could result in the lethal taking of northern right 

whales in the North Atlantic, has been unsuccessful. This is because the National 

Marine Fisheries Service has determined that any incidental mortality of this 

species cannot be considered to be negligible for purposes of the Marine Mammal 

Protection Act and likely would jeopardize the survival and recovery of the species 

in violation of section 7 of the Endangered Species Act. In addition, the permit process is geared for approval of specific activities that can be identified and assessed 

well in advance. Often Coast Guard operations require on the spot decisions—requesting individual incidental take permits is simply not feasible. 

Since the Coast Guard is a multi-mission service, most Coast Guard activities 

would not fall under the military readiness exemption of the amendment. However, 

there are activities where the Coast Guard shares similar interests and military 

readiness concerns with the Department of Defense. National Defense and Homeland Security are two of our service’s statutorily tasked missions. Coast Guard assets use Coast Guard and Department of Defense facilities and weapons ranges vital 

to our ability to maintain our readiness. 

The Coast Guard understands the need for all Federal agencies to minimize their 

impact on marine mammals and protected species and notes that this proposed 

amendment does not exempt our military partners or us from this responsibility. 

Therefore, the Coast Guard supports the proposed amendments goals of maintaining 

military readiness while carefully balancing environmental needs. This critical balance will ensure that neither our environment nor the nation’s military readiness 

will be compromised. 

Thank you for the opportunity to testify before you today. I will be happy to answer any questions you may have. 

The CHAIRMAN. Thank you. I thank all of the panel for their testimony. 

I would like to start, if I may, with Major General Bowdon. We 

have had an opportunity over the past several years to look at 

some of the things that are going on right now at Camp Pendleton. 

Your testimony details how the proposed critical habitat designation for the 18 endangered species will affect training. 

How much of the land area of Camp Pendleton was proposed as 

critical habitat? I understand you do have a visual presentation on 

that, is that correct? 

General BOWDON. That is correct, Mr. Chairman. 

The CHAIRMAN. If you could share that with the Committee. The 

question has arisen that there is no evidence that currently ESA 

or the Marine Mammal Protection Act has any impact in the failure of DOD to show that it has any impact. If you would share that 

with us. 

General BOWDON. I would be happy to, Mr. Chairman. 

[Slide presentation.] 

The first slide that you see in front of you is Camp Pendleton’s 

125,000 acres, 200 square miles. We are bordered by San 

Clemente, Fallbrook and Oceanside. The red hatched area there is 

the impact area that we use for training. The black hatched area 

is a dud area behind some rifle ranges. It is wide open space. We 

occupy about 12,000 of the 125,000 acres in cantonment and family 

housing areas. 

Next slide, please. 

This is the way that we would like to use the base to train and 

to maneuver, to train our Marines, sons and daughters of America, 

37

so that they are well-trained as they go forward into what is known 

as forward presence and combat operations. 

Next slide, please. 

The nonmilitary land use at Camp Pendleton is really not an 

issue. We have some areas that are a State park, which is depicted 

there by the yellow, the San Onofre State Park. There is also the 

San Onofre nuclear generating station there. We have I-5, we have 

gas lines, rail lines, power lines, and then the green areas are also 

some areas where there is some agricultural activity that goes on 

there. 

All of those areas are, of course, man made and we can control 

those to some degree, in terms of diminishing them or letting them 

expand. We have control over those. 

Next slide, please. 

This depicts 28,000 acres that is basically the base-line that we 

have today of endangered species. We are the only activity in 

Southern California that knows where all of our endangered 

species are, and we are counting them and watching to make sure 

that they prosper on our reservation. They have been quantified 

and that is essentially what it looks like. What you start to see 

there, of course, is encroachment upon the areas that we would like 

to be maneuvering and training in. 

Next slide. 

This slide depicts what could happen if we do not clarify the law 

and if we do not give some primacy to the military mission on DOD 

lands. This would, of course, be worst case, worst case being that 

we lose 57 percent of the base, some 70,000 acres, to critical 

habitat, which is exactly what some special interest groups would 

like to see happen. If that happens, my training mission would be 

severely inhibited. 

Thank you for that question, sir. 

[End of slide presentation.] 

The CHAIRMAN. What you have shared with the Committee are 

proposed critical habitat designations, in your term, a worst case 

scenario, for the base. 

Are there recent court cases that make the worst case scenario 

more likely? 

General BOWDON. Yes, sir. There is—The Mexican Spotted Owl 

case is one of those cases. There are cases in Federal court where 

we have lost the judgment to a special interest group. 

The CHAIRMAN. Where you lost the case? 

General BOWDON. Not the Marine Corps. The Forest Service. 

The CHAIRMAN. Thank you. 

Unfortunately, my time has expired. Mr. Rahall. 

Mr. RAHALL. Thank you, Mr. Chairman. 

I’m just wondering if anybody on the panel can respond as far 

as the Administration’s position goes on H.R. 1835, the bill introduced by Representative Gallegly. 

Mr. COHEN. Sir, my name is Ben Cohen. I’m the Deputy General 

Counsel at DOD for Environment and Installations. 

With respect to those elements of H.R. 1835 which deal with 

military readiness activities, we believe that the bill, with two relatively minor exceptions with respect to MMPA, provides the same 

38

level of benefit to the Department of Defense as the Administration 

proposal. 

With respect to those elements that don’t deal with military 

readiness activities, we would defer to the Department of Interior. 

Mr. RAHALL. So, if I heard that response correctly, in regard to 

those elements that go beyond and apply to all agencies, you are 

not necessarily endorsing it? 

Mr. COHEN. Sir, as the Defense Department, we would need to 

defer to the Department of Interior on that issue, as it’s within 

their jurisdiction. 

Mr. RAHALL. The Administration had a draft of this bill before 

it was introduced. Did the members of this panel have a draft of 

it as well? 

Mr. COHEN. Sir, yes, we did. 

Mr. RAHALL. And you know it’s scheduled for markup tomorrow? 

Mr. COHEN. Yes, sir. 

Mr. RAHALL. You know, it seems to me that what this panel—

and I would appreciate any members comment on it—what this 

panel is requesting does not go as far as what the pending legislation would do, H.R. 1835. And while I am not endorsing what this 

panel is recommending, it would appear that it is more reasonable 

in comparison with—I stress in comparison with—H.R. 1835. 

Would anybody wish to comment on that statement? 

Mr. COHEN. Sir, it’s correct that the Department of Defense did 

not propose some of the changes which are included in H.R. 1835, 

in that changes which we were proposing dealt only with military 

readiness activities, and the Committee has chosen to address 

other issues that are within the jurisdiction of this Committee and 

the Department of Interior. 

Mr. RAHALL. Is it your understanding that, if H.R. 1835 were to 

pass, would it be effective retroactively or proactively? 

Mr. COHEN. Sir, I think with respect to the military readiness 

provisions of the MMPA and ESA, it would be effective, principally, 

prospectively, on a going-forward basis. 

Mr. RAHALL. From date of enactment? 

Mr. COHEN. Yes, sir. 

Mr. RAHALL. Mr. Chairman, I yield back the balance of my time. 

The CHAIRMAN. I don’t believe that our mikes are working right 

now. 

[Proceedings suspended.] 

The CHAIRMAN. It’s working now. 

I will recognize Mr. Gilchrest, the Chairman of the Subcommittee, for his questions. 

Mr. GILCHREST. I thank the Chairman. 

Gentlemen, I think there’s no question that military facilities 

must train those soldiers and airmen and seamen to the best level 

absolutely possible. When I was in the Marine Corps almost 40 

years ago, in the 1960’s, we trained aggressively at LeJeune, at the 

infamous Vieques, Camp Pendleton, any one of a number of other 

places. 

In those days, there was no ESA. In those days, there were no 

‘‘smart bombs’’. When we got to Viet Nam, we knew what we were 

doing because of the training, and we were able to react under a 

39

myriad of difficult circumstances. So, essentially, that needs to be 

done today. 

Today we have ‘‘smart bombs’’, and we have ESA, and we’ve become a lot more sophisticated. I think what we must do is learn 

how to understand the relationship between living things and their 

environment and how we train young people to engage in combat 

and come home. I think we can do that. 

I think the INRMP concept is one of those concepts that is essential, that can actually work, that you can set aside areas on these 

facilities where there will be habitat for the living resources, and 

you can set aside areas where there is going to be training, in the 

same way that we homes for humans, farms for humans, shopping 

plazas for humans, and we have areas around the country that 

we’re losing that we need to expand that we have habitat for wildlife. So I think we’re moving in a direction that we need to move 

in. 

Mr. Chairman, I’m going to offer some amendments tomorrow 

that I think will refine some of the language in H.R. 1835 so that 

we can accommodate, in a much better fashion, all those things. 

General Fil, you said we needed to balance ESA and military 

training. On page 2, lines 6 and 7 of 1835, it says by inserting after 

‘‘threatened species’’ the following: ‘‘insofar as is practicable and 

consistent with their primary purposes’’. This deals with do we 

comply with ESA, or is it only complying with ESA when it’s ‘‘practicable and consistent with their primary purpose.’’ 

Do you think that gives the right level of balance between military training and the Endangered Species Act, adding to the policies regarding the Federal departments and agencies section and so 

on of the Endangered Species Act by inserting, after ‘‘threatened 

species’’, the following, will preserve threatened and endangered 

species ‘‘insofar as is practicable and consistent with their primary 

purposes’’, which is training? 

Is that a balance, in your judgment, to training and ESA? 

General FIL. Sir, I must admit that I’m an Army officer and not 

an attorney, so I couldn’t speak to whether that language is appropriate or not. 

May I defer to Mr. Cohen, please. 

Mr. GILCHREST. Yes. 

Mr. COHEN. Thanks, General. 

Sir, that was language that again was not actually requested by 

the Department of Defense. It goes to matters that are broader 

than national security issues and military readiness, so we defer on 

that to the Department of Interior. 

Mr. GILCHREST. OK. 

Admiral Moeller, a similar question—and maybe we’re going to 

refer to DOD legal counsel here as well. In the bill, on page 4, lines 

7 and 8, this generally is dealing with harassment of marine mammals. It is basically with level two harassment. It deals with ‘‘any 

act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild...’’ 

It goes on to say, ‘‘...surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or 

significantly altered.’’ That’s the language in the bill. 

40

The language from the Natural Research Council is ‘‘...to a point 

where such behavioral patterns are abandoned or a meaningful disruption of biological activities are significantly altered.’’ Instead of 

just saying ‘‘significantly altered’’, the Natural Research Council 

has ‘‘a meaningful disruption of biological activities are significantly altered.’’ 

I know we’re getting into some arcane language at this point, but 

I think those are two examples of what I would like to amend tomorrow, Mr. Chairman, which I think goes to the heart of what 

DOD needs to do and what we saw over here at Camp Pendleton. 

We can refine an understanding of the relationship between living 

things and their environment and how to protect that, with the 

concept of INRMP in mind, not that you’re going to protect every 

square inch of this ocean or every square inch of this military base, 

but you set aside certain areas that you know you’re going to preserve for critical habitat, but in those areas there’s a more refined 

understanding of how to do that. 

I realize my time is up. Thank you. 

The CHAIRMAN. I thank the gentleman. He is a valued member 

of the Committee and I will work with him in terms of what his 

concerns are. As you are well aware, we have worked for several 

weeks struggling with these issues, so I will continue to work with 

him. 

Mr. GILCHREST. Thank you. 

The CHAIRMAN. Mr. Kildee. 

Mr. KILDEE. Thank you, Mr. Chairman. 

To the Deputy General Counsel, why is the national security exemption to environmental laws not sufficient to enable the military 

to carry out its mission? Has the Secretary of Defense ever sought 

an exemption under section 7(j) of the Endangered Species Act, or 

ever invoked his authority under Public Law 105-85, to suspend 

any administrative rule or regulation that would ‘‘have a significant adverse effect upon the military readiness of any of the armed 

forces?’’ 

I know Donald Rumsfeld very well. He is not very bashful in 

using his authority. Has he ever used that authority to exempt the 

military from even ESA sections or the Marine Mammal Protection 

Act? 

Mr. COHEN. Sir, the Defense Department has never invoked section 7(j) of the Endangered Species Act, and it has never used section 2014, the provision that you were referring to in title X, allowing for suspension for up to 5 days of administrative action. 

To your broader question, why those exemptions or others in our 

environmental laws aren’t sufficient to protect the national security, several of the relevant statutes, including the Migratory Bird 

Treaty Act, which Congress visited last year, and the Marine Mammal Protection Act, do not have any national security exemption, 

even for wartime. 

The provision in section 2014, which is often cited as something 

that’s cross-cutting and would enable us to effect the application of 

those statutes, would permit the Department of Defense to suspend 

for, at most, 5 days the action of another administrative agency. 

So, sir, a 5-day suspension of another agency’s action would provide 

us with very little relief. 

41

This is particularly the case since environmental regulators, Federal and State, have not been a principal source of problems for us. 

To take the SURTASS LFA case, for example, we received the 

administrative action that we requested from the Department of 

Commerce. They granted us a letter of authorization to take this 

critical system to sea. But we were then sued on that and enjoined. 

That section, 2014, doesn’t apply to court action. 

Finally, to answer your question about section 7(j) of the Endangered Species Act, and then, more broadly, the environmental laws 

more generally and our means of proceeding by exemption, section 

7(j) comes as part of the process of the Endangered Species Committee. It is clearly designed to be site-specific and to deal with a 

particular set of activities. 

The Department of Defense and successive administrations, historically have been extremely reluctant to invoke the Endangered 

Species Committee, for obvious reasons, and always sought to try 

to find ways to address these problems through regulation or by 

adjusting the statute, which is what we’re doing now, rather than 

actually invoking the exemption. 

This is a point that goes more broadly to the whole Defense Department package, sir. We don’t want to be exempt from environmental laws. What we would like to do is adjust the environmental 

laws, the underlying statutory authorities themselves, in such a 

way that we can, at one and the same time, fulfill our national security mission and protect the environment, rather than invoking 

the hammer of section 7(j), which would sweep away all the protections of the Act. 

Mr. KILDEE. Well, the hammer, you know, need not be brought 

down with full force with the exemption. The Secretary of Defense 

is given discretion within that exemption. We don’t say you must 

use a sledge hammer. You’re a lawyer and you know that, within 

an exemption, you can use it to a degree or use it fully. Mr. Rumsfeld is fully capable, intellectually, of seeing how much of that exemption might be required. 

Mr. COHEN. Yes, sir. But in this instance, because we have an 

existing policy adopted during the last administration which enables us to actually protect the environment and manage our installations for national security, it hasn’t been necessary for us to 

go that route, and we’re hoping to shore up that policy. 

Mr. KILDEE. I would hope, generally, we would try to use existing 

law rather than change the law. These laws have come up, hopefully, through the combined wisdom of many, many Congresses, 

and some of these laws were enacted before I came here 27 years 

ago. But I do think you should explore what authority and how 

much discretion the Secretary can use within that authority to 

achieve what is needed. 

You know, we’re not just ‘‘tree-huggers’’ up here. I have two sons 

who are captains in the Army. We’re all very much concerned 

about the training of our military. But I do think that further exploration of what power already exists might be helpful. 

Mr. ABERCROMBIE. Will the gentleman yield? 

Mr. KILDEE. I would be happy to yield to the gentleman from Hawaii. 

42

Mr. ABERCROMBIE. Mr. Cohen, are you familiar with the memorandum for Secretaries of the military departments from the Chairman of the Joint Chiefs of Staff, Under Secretaries of Defense and 

Service Chiefs, on the subject of ‘‘senior readiness oversight counsel 

approval of the 2003 sustainable ranges action agenda’’? 

Mr. COHEN. Yes, sir, I believe so. 

Mr. ABERCROMBIE. OK. Under the exemptions in ESA compliance, are you familiar with page 9, which discusses the failure of 

the Department of Defense to ever utilize the exemption capacity 

that it has, as Mr. Kildee discussed? 

Mr. COHEN. Sir, I can’t recall the specific passage you’re referring 

to. 

Mr. ABERCROMBIE. I’m not trying to trap you, believe me. The 

gist of it I can summarize from the passage itself. 

What the previous paragraph simply says, Mr. Chairman, is, to 

date, the DOD has not used such exemptions to any extent to address encroachment concerns. Congress and many environmental 

organizations criticized the Department for not pursuing these avenues of relief already available to them, instead of pursuing new 

legislation. It goes on to say—and I’m quoting—‘‘A draft memorandum has been developed and coordinated within the IPT that 

would provide guidance to the services on how to assess and process exemption requests in appropriate situations. This memo is attached, along with a briefing package, for review.’’ 

Wouldn’t it make sense for the services to try to use existing law, 

and if it runs into difficulties in specific situations, then seek relief 

on that basis, rather than, before you even try what is readily 

available to you now, come in and ask for a complete change in the 

basis of the existing legislation? 

Mr. COHEN. Sir, we actually believe that the proposals that we’re 

bringing forward are consistent with the correct interpretation of 

the laws we’re seeking to clarify. For example, most of the reforms 

that we’re suggesting, many of the reforms we’re suggesting to 

MMPA, simply would codify interpretations that the regulatory 

agency has already brought forward. 

Mr. ABERCROMBIE. Excuse me— 

The CHAIRMAN. The gentleman’s time has expired. 

Mr. ABERCROMBIE. OK. Thank you, Mr. Chairman. I’m going to 

pursue that later, then. Thank you. 

The CHAIRMAN. Mr. Gibbons. 

Mr. GIBBONS. Thank you very much, Mr. Chairman. 

Gentlemen, to each of you, I want to thank you for your effort 

to work and defend our Nation. From a very proud constituent of 

all of yours, I want to thank you for your effort. 

This is an issue which, of course, affects many of us on this Committee because many of us have districts which have large military 

installations. I, for one, have several which are affected by the Endangered Species Act, whether it’s Nellis Air Force Base, Fallon 

Naval Air Station, or any of the others that have provided a great 

deal of training for our young men and women around this country. 

I do know that during Operation Enduring Freedom there were 

opportunities to test, on a rather short notice basis, some of the 

new technologies and weapons systems that were used to successfully conclude those conflicts. 

43

My question would be—and I guess I would go to Colonel 

DiGiovanni in asking this question—whether or not the 

designation of critical habitat versus an Integrated Natural Resource Management Plan area would have an impact, a serious impact, a negative impact, on training for any ongoing operation, if 

you could compare and contrast the designation of a critical habitat 

for an endangered species versus the Integrated Natural Resource 

Management Plan. 

Colonel DIGIOVANNI. OK, sir. I’ll briefly address some of the 

issues to the best of my knowledge. 

When something is designated as critical habitat, the primacy for 

the use of that land becomes the survival of the species, we think, 

under an Integrated Natural Resource Management Plan, you can 

better balance military needs with the needs of the community and 

the environment. 

We also think that when you designate critical habitat, you’re focusing on a specific species, whereas if you use an Integrated Natural Resource Management Plan, then you can approach it in a 

more holistic manner and look at the entire ecosystem in which 

you’re trying to balance the two competing needs. 

Any other issues I would like to defer to Mr. Cohen for further 

clarification. 

Mr. GIBBONS. If we’re going to turn to Mr. Cohen, let me add to 

this question because, Mr. Cohen, you’re the legal expert here. 

When you talk about flexibility and the difference between critical 

habitat versus an Integrated Natural Resource Management Plan, 

it seems to be one of process over restriction and inflexibility. 

My concern here is there are going to be critics out there, wellmeant, well-meaning critics, who are going to say that, unless 

there’s some designation, clearly, of some abuse of discretion, 

whether it’s an arbitrary or capricious decision, that no one is going 

to want to intercede in any of these current existing laws that establish critical habitat and designated Endangered Species Act, but 

that gives the military no flexibility when it comes to challenging 

these issues. 

I would like to ask you if you think there is greater capability 

of both preserving the species as well as allowing for training of 

our men and women in the military when you have an Integrated 

Natural Resource Management Plan—I just throw that out there—

versus something designated as a critical habitat. Could you address that issue? 

Mr. COHEN. Yes, sir. Thanks very much. 

In the first instance, we do believe that the INRMP is a superior 

tool because it does enable us to manage the entire ecosystem on 

a holistic basis. We think it’s a more modern and more sciencebased tool than the critical habitat device that was developed decades ago. We think that this ecosystem management is what gives 

us the flexibility to, at one and the same time, promote our military mission and also protect species. 

We don’t think this is an instance of some sort of tragic tradeoff 

between national security and environment. We can do both those 

jobs, sir, if we’re given the appropriate flexibility in the statute. We 

feel that critical habitat is not the appropriate regulatory framework because it doesn’t enable us to do both jobs. 

44

Mr. GIBBONS. So it would be true that it would require, if you 

were to take it to a judicial decision, it would require you, if it’s 

critical habitat, to have an arbitrary, capricious decision, or an 

abuse of discretion would be the only way to unwind or to lessen 

the impact of critical habitat on the military operation? 

Mr. COHEN. Well, actually, sir, because we’re another Federal 

agency, we don’t have the ability to challenge actions of the Interior Department in court, nor have we ever had the need to, in 

terms of working through critical habitat issues, because the Interior Department has tried to accommodate national security, wherever possible. In fact, their policy of using INRMPs in lieu of critical habitat designation is the policy that was developed in the last 

administration to accommodate these two interests. 

The problem comes, sir, with outside litigants, private parties 

and nongovernmental organizations, who are trying to strike down 

the action taken by the Interior Department to accommodate national security. 

The CHAIRMAN. Mr. Pallone. If you want me to skip you, I’ll go 

to Mrs. Christensen. 

Mrs. CHRISTENSEN. Thank you very much, Mr. Chairman. 

Has the Navy ever been denied a request for incidental harassment authorization under the MMPA? 

Admiral MOELLER. The issue for us has been one of, as we go forward for the kinds of things that we need to address in the future 

from a test and training standpoint, the detailed, very elaborate 

and complex process to be able to conduct training activities in a 

manner consistent when they are appropriate for us from a scheduling standpoint to do so. So as has been discussed here today, 

what we’re trying to accomplish here is to put in place mechanisms 

that will allow us enhanced flexibility to be able to kind of do the 

things that are very, very important from a national security 

standpoint. 

Mrs. CHRISTENSEN. This question I guess I would refer to anyone 

on the panel. I’m having difficulty reconciling this request with recent statements that I really support. I’m really proud of the performance of our troops in Iraq and Afghanistan, wherever they 

have been sent. 

The General Accounting Office, for example, found that training 

readiness remains high at our military institutions, and even the 

Secretary was quoted as saying our troops were, as I agree they 

are, the best trained, best equipped and finest troops on the face 

of the Earth. So I’m trying to reconcile these kind of statements 

with the support of the military for this piece of legislation. 

Can someone help me out with that? Haven’t, in fact, the remedies and the flexibilities that are already in place been enough to 

allow our military to be properly trained and to receive the kind 

of accolades that I quoted? 

General FIL. Yes, ma’am. Thank you, if I might attempt an answer to that. 

Well, I think there is no doubt that our troops are, indeed, the 

best in the world. It’s a tribute to hard work, dedication, and leadership from four stars all the way down to seamen and airmen and 

privates, in all the services, and also a tribute to Congress for funding us to make us the greatest armed force in the world. 

45

But our recent fight against the Iraqis is not necessarily the 

same kind of fight that we’re likely to have in the future. We need 

to prepare to defend the Nation against any possible potential 

threat, existing or emerging. That causes us to want to make sure 

that our training facilities are, indeed, the best as we can possibly 

make them. 

I can speak for the National Training Center in regards to the 

second half of your question, ma’am. That is, because of critical 

habitat designation, we have lost a very large portion of our training area, cutting off one entire maneuver area. We have a portion 

of the facility that congressionally has been given to us, set aside, 

if you will, of 110,000 acres. Much of that is designated critical 

habitat. In fact, there are no tortoises living there and never will 

be. It ’s not suitable for habitation for this particular species of 

Desert Tortoise. 

So what we seek is the ability to continue to work very closely 

with our colleagues and the Fish and Wildlife Service to do both 

things—protect the species and yet make the best use of this land 

for training for the forces of today and the future. 

Mrs. CHRISTENSEN. I guess, with somewhere in the vicinity of 25 

million acres of land that the military has, it still becomes a concern? 

General FIL. I can only speak to the 740-750,000 acres that we’re 

training on at the National Training Center. But yes, ma’am, it is 

indeed a concern. 

Mrs. CHRISTENSEN. I’m not on any of armed forces Committees, 

but it’s my understanding that the type of training and the type 

of combat that might occur in the future will be different from 

what we’re experiencing now. 

Has that been taken into account, the type of training that will 

be needed for future conflicts? Has that been taken into account in 

your support of this legislation? Is this legislation still needed in 

light of the different kinds of combat that our troops will be facing? 

General FIL. Yes, ma’am. If I could just answer that and then I’ll 

pass it to my colleagues. 

Ma’am, indeed, we look to the future. We are presently looking 

25 to 30 years out and developing the requirements that we believe 

for the National Training Center, and the collaborative effort that 

we have with our other facilities from the other services in Southern California and Nevada, we believe that, in fact, these two initiatives are very much in parallel. 

The CHAIRMAN. The gentlelady’s time has expired. 

Mr. Jones. 

Mr. JONES. Mr. Chairman, thank you. 

I want to first say that I appreciate you and this Committee, 

whether we agree on all the issues or not, for holding this hearing. 

I think last year we had a similar bill and also a hearing that was 

very important. 

I have three bases in my district: Camp LeJeune, Cherry Point 

Marine Air Station, and Seymour Johnson Air Force Base. A multitude of the issues that have been discussed today by you gentlemen, as well as the Committee, we’ve been discussing for 9 years 

down in the 3rd District of North Carolina. 

46

My question is really probably for Mr. Cohen. I want to go back 

to what the gentleman from Hawaii was asking you earlier, when 

he was saying that you had certain authority. I believe your response was that ‘‘we need clarification’’. My reason for bringing his 

question back up is this: you talk about how you and Fish and 

Wildlife are working together to see if you’re following the law, the 

Endangered Species Act, and if you can train in this area, train in 

that area. 

What has been the cost to the Department of Defense over the 

last few years as it relates to litigation, as to the area of training? 

Mr. COHEN. Sir, I think I had better take that for the record, if 

I could. I don’t know whether we have that number aggregated. It 

would clearly involve costs imposed on our regulators as well, because it is their decisions that are frequently challenged in court, 

and on the Department of Justice, which represents us in court. So 

it would be across a number of agencies. Certainly, a lot of the litigation has been very extensive and expensive. 

Mr. JONES. Mr. Chairman, with your permission, I would like to 

have that information for the record, the best that could be provided, so that the Committee would have that. 

The CHAIRMAN. Yes, if the gentleman will provide that for the 

record. I realize you probably have to work with DOJ to come up 

with an answer, but if you could provide that for the record. 

[the information submitted for the record by Mr. Cohen follows:]

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Mr. COHEN. Yes, sir. 

Mr. JONES. Mr. Chairman, just a couple of other statements. I’m 

not going to ask any other questions. 

I appreciate General Bowdon sharing with the Committee what 

you did. I wish Mr. Pallone and all of us who were not here could 

see that again. 

Would you mind going through that screen one more time so that 

the members on that side, that just came in, could see them. The 

reason I do that is because there is going to be a major debate tomorrow or the next day, and I think the better informed we are, 

whether we agree or disagree, is extremely helpful. Would you 

please point that out again, because some members have just come 

in, your problems at Camp Pendleton? 

[Slide Presentation.] 

General BOWDON. Thank you, sir. I would be happy to. 

This is Camp Pendleton, 125,000 acres, contains an impact area 

there in red. Of course, we are bordered by several different communities there in Southern California. 

Next slide, please. 

This is how we would like to train. Those big red arrows are essentially maneuver areas, places where we would like to maneuver 

our troops in order to train them to be the best they can be. 

Next slide. 

Those areas that just popped up, the yellow, the green, are, of 

course, areas that are man-made areas. It’s Interstate 5, the San 

Onofre State Park. It’s the San Onofre nuclear generating plant, 

and also some agricultural areas that predate the base’s 60-year 

history. They are areas that we can control the future of, to make 

them larger or to diminish in some degree, if we had to, or to keep 

them as is. 

Next slide. 

This is the baseline. We are currently constrained and degraded 

to some small degree, 30 percent—that’s really not a small 

degree—but to a 30 percent degree with our training. We know 


86854.016
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where all of our endangered species are. We have a program that 

tracks them. They use about 28,000 acres on our base. 

You can see how now those red arrows that we use to train in 

are starting to become incumbered. That is status quo. That is 

where we are today. We have quantified the degradation to our 

training through a quantification study, recently completed, that 

indicates that we are able to meet our training standard at the 68 

percentile degree. 

Next slide. 

This is what could happen to us if we do not get clarification in 

the law and primacy of our mission. This would indicate 70,000 

acres, 57 percent of the base, would come under critical habitat. 

You can see that we would be so constrained that we would be able 

to only do a very small part of our training activity. 

We need to be able to train our Marines and sailors as they go 

off to do the bidding for our country. They are our sons and daughters of America and we owe them the best training that we can 

give them. So we need to be very careful that the training that we 

have today is preserved. 

Thank you. 

Mr. JONES. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. 

Mr. Pallone. 

Mr. PALLONE. Because you had Pendleton up there—and I’m glad 

that Mr. Jones showed me that—I just wanted to use as an example one of the concerns I have, General. 

Rather than showing the systematic conflict between military 

readiness and the implementation ESA, evidence of problems presented thus far appears to be to be mostly a few anecdotes—in 

other words, some specific anecdotes. But when the full situation 

is examined at the specific bases, like Pendleton, it appears the 

DOD is telling only part of the story and the supposed conflict either does not exist or is not as bad as it would appear based on 

the DOD assertions. 

Just as an example, the DOD stated that proposed critical 

habitat designations threaten to encumber—I guess it’s 37 or 57 

percent of Camp Pendleton. However, after the military consulted 

with the Fish and Wildlife Service, the total acres of designated 

critical habitat on Camp Pendleton is 3.7 percent of the base’s total 

land area, of which only 1.5 percent is on the base and actively 

used by the military, and about 2.2 percent is on the lands leased 

to California State Parks. There are other examples. 

But since we just had the map there about Camp Pendleton, in 

the interest of time, I just wanted to ask how can you explain those 

discrepancies in these numbers at Camp Pendleton, because that’s 

the type of thing I’m concerned about. 

General BOWDON. Yes, sir. Thank you for that question. 

The statement you have made is, in fact, true. We do not have 

a large critical habitat designation on Camp Pendleton as it exists 

today. However, there are those who are—We are being sued in 

Southern California every time we turn around. There are those 

special interest groups, and there are many, who would like to sue 

us to ensure that that critical habitat designation is, in fact, enforced on Camp Pendleton. 

60

What I need is for you, Congress, to clarify the law and to quantify the law and give us primacy of our mission, so that they can’t 

come to the courts and say it is not clear what priority the Marine 

Corps or any other service has in their mission, as opposed to the 

Endangered Species Act. 

So that’s what I want to go home with, that clarity of the law, 

so that I am not regulated by litigation in the courts by special interest groups, who would try to force that 57 percent of the base 

to become a critical habitat designation. 

Mr. PALLONE. Well, when we had a hearing the other day in our 

Fisheries Subcommittee on INRMPs, in the context of other legislation, we talked about INRMPs instead of the designation of critical 

habitat. From what I understand, there is nothing to prevent the 

Secretary from basically designating an INRMP instead of designating critical habitat. 

So why is that a problem? The court cases don’t preclude you 

from doing that in any way, do they? 

General BOWDON. I would like to refer to Mr. Cohen. 

Mr. COHEN. Sir, the question is whether those decisions by the 

Secretary will be struck down. The Secretary has already made 

that decision at Camp Pendleton and at Miramar, and is preparing 

to make it again. But that decision will be challenged. There is ongoing litigation, as General Bowdon said. 

We are not asking for this decision to be placed beyond the reach 

of any sort of judicial review. What we are trying to say is let’s vindicate the policy of the last administration that allows the Department of Interior, on a case-by-case basis, to decide whether our 

INRMP is good enough to serve in lieu of critical habitat. If we propose an INRMP that’s insufficient, the Secretary has the authority 

to refuse and to go ahead and designate critical habitat. If the Secretary makes a mistaken decision and accepts an INRMP that’s inadequate, that decision can be challenged on a case-by-case basis. 

What the litigants in California are saying today, sir, is that no 

INRMP, no matter how good it is, can ever substitute for critical 

habitat. That would overturn the decision of the last administration and their policy and the policy of this administration as well. 

We would simply like to give the Department of Interior that degree of flexibility. 

Mr. PALLONE. It is not my understanding—and I don’t want to 

continue this forever, Mr. Chairman—but it’s not my understanding that there’s any challenge to the INRMPs as an option. 

You seem to feel that that could be challenged as well, but no one 

has so far challenged the INRMPs option. 

Mr. COHEN. Sir, if I could, actually it’s been—I believe one of the 

litigants, the Natural Resources Defense Council, has already argued in briefs in California, that the policy is illegal. 

Mr. PALLONE. OK. Again, it doesn’t apply—they haven’t challenged section 4(b)(2) of the Endangered Species Act, though. They 

haven’t challenged that aspect. 

Mr. COHEN. Actually, sir, I believe they are challenging the decision made under 4(b)(2) as well, sir. 

Mr. PALLONE. Could you provide me with that information, because I would like to know if, in fact, that is the case. 

Mr. COHEN. Yes, sir. I would be happy to. 

61

Mr. PALLONE. Thank you, Mr. Chairman. 

The CHAIRMAN. Mr. Osborne. 

Mr. OSBORNE. Thank you, Mr. Chairman. Thank you, gentlemen, 

for being here today. I thank you for what you do. 

I would like to address my comment to General Fil. It’s my understanding that at Fort Irwin the Desert Tortoise has been an 

issue, and the Desert Tortoise is listed as threatened, not endangered. But as I understand it, when a soldier or a training exercise 

encounters a Desert Tortoise, you’ve had training cease in that 

area; is that correct, according to your testimony? 

General FIL. Sir, thank you for the question. 

Yes, indeed. When we encounter a Desert Tortoise anywhere in 

the maneuver area, or in the cantonment area, we stop, we guard 

it, and we call in one of our environmental experts, a biologist, and 

if it can be removed, to be removed to a safe place. Although that 

only happens occasionally, because we’re avoiding the areas where 

the Desert Tortoise is normally found, when it does happen, it does 

stop training in that area. 

Mr. OSBORNE. Also, your testimony indicates that whenever a 

Desert Tortoise urinates, that you have to provide shade and then 

call in some specialist; is that correct? 

General FIL. Sir, yes. When frightened, they will void their bladder. That makes them vulnerable during their hibernation period 

because they’re insufficiently hydrated. So we do bring in a biologist and they’ll normally give them whatever is required to rehydrate them and then set them free. 

Mr. OSBORNE. I also see that apparently at one time you created 

a tortoise reserve, is that right, where you restricted certain activities where the tortoise was to be found? 

General FIL. Sir, yes that’s true. We took a line that goes along 

the nine zero east-west grid line, if you will, and all that is south 

of that we made off limits to any maneuver. That has since been 

designated as critical habitat. 

In part of that area we have also developed a hatchery for tortoises. We’re having really a great deal of success down there. 

Mr. OSBORNE. The reason for my questions was it’s my understanding you had taken some pretty extreme, and maybe even heroic measures, to protect the tortoise. Apparently Fish and Wildlife 

still declared it critical habitat, even in spite of all your efforts. 

I guess my question to you is, do you feel that you could have 

coexisted with the tortoise and done some training in the area and 

still preserve the species without the critical habitat designation? 

General FIL. Sir, thank you. We do think that we can coexist 

with the tortoise. That’s why we believe that our Integrated Natural Resources Management Plan is the right answer for this, because it addresses military training and also the needs of the 

Desert Tortoise. 

Mr. OSBORNE. Again, referring to your testimony, I guess you 

lost 22,000 acres of training area with the designation critical 

habitat. 

General FIL. Sir, yes, and in fact, it’s much beyond that now. 

Much of the land that was recently withdrawn so that it could be 

added to the National Training Center’s maneuver area is also designated critical habitat for the Desert Tortoise, even though much 

62

of that, in fact, doesn’t have any tortoises in it, and probably never 

will. It’s unsuitable. 

Mr. OSBORNE. I’m not totally familiar with the dialog that occurs 

in creating critical habitat, but did you feel Fish and Wildlife adequately counted the number of tortoises present, that there was an 

interface with them in which there was some possibility that critical habitat designation could have been averted? 

General FIL. Sir, I would say that we worked very closely with 

Fish and Wildlife. They are commenting and working collaboratively with us on our Integrated Natural Resources Management 

Plan. We believe that that is the right answer. 

I will also say that we’re learning more and more about the 

Desert Tortoise every day, and we made the study of this species 

one of our priorities, to find out more and more about it. 

Mr. OSBORNE. OK. Thank you very much. 

General FIL. Thank you, sir. 

Mr. OSBORNE. I yield back. 

The CHAIRMAN. Mr. Faleomavaega, did you have questions? 

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman. I apologize for 

not being here earlier and listening to the testimonies of our distinguished panel members. I do have a couple of questions I wanted 

to ask the panel with reference to the proposed bill, H.R. 1835. 

As I was listening to the dialog here, it seems that my reading 

of the bill is that it provides a blanket exemption, giving the Secretary of Defense that exemption authority versus, if I hear what 

Mr. Cohen said earlier on a case-by-case basis, in determining 

what would really be a better option to consider and how we could 

establish a balance between the environment and the needs for our 

national defense. 

I would want to hear from members of the panel, if I’m 

misreading the proposed bill here. By giving the Secretary of Defense a blank check, giving him discretionary authority to say, if 

it’s in national defense and Desert turtles should go out the window, so be it. Or should we take each area of the region where we 

have Defense resources, where we need to provide the best training 

possible for our military men and women in uniform, or could the 

better option be on a case-by-case basis, as I understand Mr. Cohen 

may have suggested. I don’t know if I’m hearing it wrong. 

Mr. COHEN. Sir, maybe I should take the first crack at the answer. 

If I understand your question correctly, about H.R. 1835 and endangered species, the language that the Committee has proposed 

that is in the bill is actually rather close to the language that the 

House passed last year. It does actually provide a case-by-case decision for the Secretary of Interior when she decides—the relevant 

language is at page 2, line 25, ‘‘...if the Secretary determines that 

such plan addresses special management considerations or protection. In other words, if the Secretary decides that it doesn’t, that 

it isn’t sufficiently protective, then she will go ahead and designate 

critical habitat. If she decides that it is, then she will not. And 

those decisions would be judicially reviewable. 

But one thing that would be taken away from the plaintiffs is 

this across-the-board argument that no INRMP, no matter how 

good it is, can ever substitute for critical habitat. 

63

Mr. FALEOMAVAEGA. And the same authority also is taken for the 

Secretary of Defense, on page 4 of the bill—Do I have the same bill 

as you? Is that the same understanding also, that the Secretary of 

Defense is also given similar authority to— 

Mr. COHEN. Sir, on that one, the exemption authority for the Marine Mammal Protection Act— 

Mr. FALEOMAVAEGA. Yes. 

Mr. COHEN. —that is an authority vested in the Secretary of Defense, and that language, I believe, tracks what the Defense Department proposed. 

Again, we believe that the Marine Mammal Protection Act, like 

all the environmental statutes, should have an emergency exemption for particularly drastic circumstances. But we don’t think it 

should be the way in which we address everyday, widespread, ongoing military test and training activities. The analogy we like to 

use is to a car. Every car ought to have an emergency road repair 

kit, but if that’s the only way you get to work every morning, there 

is something wrong with your car. So we do support an exemption 

for MMPA. 

But, sir, please let me leave no doubt that the Department does 

not want to have to proceed with its military readiness activities 

by virtue of an endless succession of Presidential or Secretary of 

Defense exemptions. 

Mr. FALEOMAVAEGA. One of the ironies, for example, is that I 

know all of our military aircraft are exempted from using noise 

kits. If that doesn’t create a hazard as far as sounds and everything, the military doesn’t have to use noise kits. I understand it’s 

in the name of national defense and national security and they 

don’t have to be subjected to that. 

The situation we’ve had to deal with in Vieques, the situation we 

had to deal with in Koholami, the situation where, as you have 

suggested earlier, the military is now filled with lawsuits, does this 

seem to give an indication that the current law, as it states, is 

badly written? Would you offer better recommendations on how we 

can improve the law to lessen the number of lawsuits that you’re 

constantly being subjected to? 

Mr. COHEN. Sir, we think that the language that we brought forward, in fact, would clarify and confirm the existing interpretation 

of the law. To that extent, it would limit the lawsuits. 

But I think it does raise a very significant point, which is, although the Defense Department is sometimes described in this proposal as being on the offensive, or trying to radically change the 

existing regulatory structure, actually each of the proposals that 

we put forward reaffirms and stabilizes existing regulatory policies, 

some of them dating from the previous administration, others dating back decades. 

It’s the litigants attacking those policies in court who seek to 

change the regulatory policy of those administrations, and to impose new and sweeping regulation on military readiness activity. 

Mr. FALEOMAVAEGA. My time is up. Thank you, Mr. Chairman. 

The CHAIRMAN. Mr. Cole. 

Mr. COLE. Thank you very much, Mr. Chairman. 

Gentlemen, thank you very much, frankly, for your distinguished 

service to your country. It’s a privilege to have you here. 

64

Let me ask a few general questions, and if I have time, I have 

a couple of specific things I would like to inquire about. This may 

be a somewhat unusual observation, but I must tell you, in listening to all your testimony and knowing that you are not trained in 

dealing with endangered species, that your profession is obviously 

of a military nature, I am extraordinarily impressed by the degree 

of knowledge that you individually have about what goes on in the 

respective facilities that you’re responsible for. 

Would you compare the level of knowledge that you have in these 

areas with what you see in the private sector? Do you think you 

spend a lot of your time focused on these issues? Let’s start with 

anybody who cares to answer. 

General BOWDON. Sir, I will try to talk to that. 

We do spend a lot of time focused on these encroachment issues 

because they’re vital to our training. I would point out, though, 

that at Camp Pendleton, where we are compared to any other municipality, wastewater, clean air, any other regulation, we are 

treated the same way and we would expect to be treated the same 

way. However, military training in those types of activities is different from those other types of entities, and we are unique in that. 

We require special attention for that. 

Mr. COLE. Would anybody else care to answer that or address 

that? 

General FIL. Sir, thank you very much. 

I do not know how much time my civilian colleagues are spending on environmental issues, but I will say that, at the National 

Training Center, we are absolutely serious about this. We want to 

be strictly within the provisions of all of the laws that apply. We, 

likewise, are held to the same standard in many ways, as far as 

the city of Fort Irwin goes, if you will, as anywhere else in the Nation, and likewise for air quality. We have a good record. We’ve had 

many awards given to us and we’re very proud of that. But we also 

do believe very firmly that we must work out a way to accommodate both the military needs and to accommodate the environmental protection requirements. 

Mr. COLE. General, is it fair to say that you’re going to find yourself, obviously, on many occasions deployed into rugged, wild areas, 

to areas that are, if you will, relatively undisturbed by human 

beings, or you may find yourself deployed into such situations, and 

isn’t it in your interest to maintain an environment for your training that is similar to ones you might find yourself in in combat? 

General FIL. Sir, thank you. We do, indeed, sir, and we want it 

to be that way 25, 50, 75 years from now as well. 

Mr. COLE. Are any of your gentlemen at all aware of any species, 

endangered species, that have been seriously impacted by military 

training to the point that it has really threatened their long-term 

survival, or the loss of a particular species? I ask you this because 

I asked on the Armed Services Committee, to be fair, the Fish and 

Wildlife people who testified before us that same question, and 

they couldn’t come up with any, either. Actually, they gave you a 

high recommendation for the working relationship they had with 

each branch of the military, so you clearly have done a good job. 

65

Let me ask you this question, if I may. Admiral Moeller, did you 

testify, if I recall correct, a little bit about the LFA sonar system 

and some of your needs in that regard? 

Admiral MOELLER. Thank you very much, sir. 

Did you say, did I testify to that? 

Mr. COLE. Yeah. Wasn’t there some testimony to that effect? 

Admiral MOELLER. Yes, sir, I did. 

Mr. COLE. If I remember correctly, during your testimony you 

mentioned that you were testing—it was not just the training, but 

how well the system actually works and what obstacles you might 

deal with. If that’s the case, was some of your testing relating to 

how the system might impact marine and mammal life? 

Admiral MOELLER. Sir, as we go through our testing process, 

clearly that is one of the considerations that we need to take careful stock of. The testing that we are in fact doing right now, of 

course, is cognizant of that kind of concern, such that we have a 

good appreciation for exactly what it is that we’re doing. That testing is certainly very critical to understanding exactly then how we 

would operationally employ the system at that point in time. 

Mr. COLE. So is it fair to say then that a great deal of what you 

do is actually—clearly, your objective is to fight and win and protect the people under your commend, but also to have some awareness of what the impact of your activity is on the world around you, 

and you need some freedom and flexibility to determine those kinds 

of questions. 

Admiral MOELLER. Without question, sir, that’s exactly the case, 

yes, sir. 

Mr. COLE. Thank you very much. 

Mr. Chairman, I yield back the balance of my time. 

The CHAIRMAN. Mr. Udall. 

Mr. TOM UDALL. Thank you, Mr. Chairman. I thank the panel 

and thank you for your service to our country. 

General Bowdon, on this issue of the Endangered Species Act in 

Camp Pendleton, we have been going around on this a little bit and 

I was trying to listen to your answers here. It seemed to me that 

we’re talking only about 1 percent of Camp Pendleton, that a little 

more than 1 percent has been designated critical habitat. Is that 

a fair estimation? 

I mean, I understand there are 186,659 acres, and of this 

amount, critical habitat has been designated on 4,622. Much of 

that has been leased to California for a State park. So that means 

a little more than 1 percent of critical habitat has been designated 

at Camp Pendleton. 

Is that accurate? 

General BOWDON. Thank you for that question. 

That is, in fact, a true statement, sir. That’s not really what my 

concern is. My concern is what’s going to happen in the future. 

Mr. TOM UDALL. I understand that. I understand that there’s a 

lawsuit out there and you’re worried that they’re going to come 

down. But there is a long history here with the Department of the 

Interior, working very closely with these INRMPs with you. In fact, 

using the authority under section 4(b)(2) of the ESA, the Secretary 

of Interior used discretion and opted not to designate critical 

habitat because these lands are used by the military. So you’ve had 

66

another Executive agency, with expertise in this area, choose not 

to designate habitat. So what we’re worried about is some floating 

possibility out here that this may happen. 

It seems to me like the agencies are doing their job working with 

each other, and as your counsel said earlier, you work with other 

agencies to try to resolve these problems. He said that a couple of 

times, you know, that we have our mission for training and readiness, but we also want to comply with environmental statutes. So 

I don’t know why we’re rushing here to, in my opinion, gut the Endangered Species Act for something that is just hanging over our 

head. 

This leads me to really ask the key question here—and maybe 

this is a question in a way for the Chairman—is there anybody 

today with expertise from the Federal Government that is going to 

weigh in on this bill that’s before us? None of the panel before us 

wants to tell us, from the Department of Defense or any of these 

other agencies, whether you’re for this bill or against this bill. Is 

that correct, except for the legal answer from counsel? So nobody 

is going to weigh in and say what your official position is on this 

bill. 

Am I correct in saying that? Is anybody going to dispute that? 

Then I’ve read through the testimony here of Dr. Hogarth, and 

he says 1835 was recently introduced and is still under review by 

the Administration. So Dr. Hogarth and the Assistant Secretary, 

Mr. Manson, all of these agencies with the real expertise on this 

issue have had this bill for over a week, and all we’re going to hear 

today in testimony is what your counsel said here. He’s going to 

defer to Interior. Interior is not going to take a position. The folks 

at NOAA, they’re not going to take a position. So we’re basically 

having nobody that has real expertise weigh in on this bill. 

I would say, Mr. Chairman, we’ve got to get somebody over here 

that is going to weigh in on this bill before we go to markup. We 

don’t have the expertise here to look at this. The expertise is in the 

Department of Interior, it’s in NOAA, it’s in your departments. And 

if nobody is going to weigh in on this bill, it seems that we should 

delay the markup on this. I mean, it’s really a precipitous action, 

an expedited, hurried up action to move at this point. 

I can tell you from my experience in dealing with the Department of Interior, if an agency like that had a bill and it was there 

for a week, and this was a major action taken by the Congress in 

a bill to gut the Endangered Species Act, and nobody could come 

up with a position in a week, a lot of people ought to have their 

heads roll, if they can’t come up with a position on this. 

So, Mr. Chairman, I would just ask that we get somebody from 

the Administration with some expertise to come in here and talk 

specifically about the bill we have before us. Thank you. I know I 

have run out of my time. 

The CHAIRMAN. I recognize myself. 

I will tell the gentleman, first of all, no one has introduced a bill 

that would gut the Endangered Species Act. I know that that is always the fallback position of so many people, that any time a bill 

is introduced that amends the Endangered Species Act, in any way, 

all of a sudden we’re gutting the Act. That is not what is going on 

here. 

67

You guys are failing to even listen to any of the testimony that’s 

before you. You’ve got your script down and you’re going by it, and 

you’re not even listening to any of the answers that are coming 

back to your questions. 

There are specific problems that the military has. That is what 

they have testified to. There are two provisions in the bill that they 

don’t feel they have jurisdiction on the military, and they did not 

comment on those two sections of the bill. 

Judge Manson is going to testify later, and you can ask your 

questions about those two sections of the bill when Judge Manson 

is before us. 

General Bowdon, if I could have you put up again the screen that 

shows where the endangered species are right now. 

General BOWDON. That is it, Mr. Chairman. 

The CHAIRMAN. OK. In those areas where the endangered species 

are identified, can you go into those areas right now and train 

without any restrictions? 

General BOWDON. We avoid them, sir. 

The CHAIRMAN. You avoid those areas. 

General BOWDON. That is correct. 

The CHAIRMAN. So you cannot go into those areas and train now? 

Even though critical habitat has not yet been designated, you are 

restricted in your ability to use those portions of the base? 

General BOWDON. We are restricted by the terms and conditions 

that we are given by the regulator on the use of the lands that are 

adjacent to the habitat being occupied by the endangered species. 

Of course, we honor that and work around it as best we can. 

The CHAIRMAN. So you tried to come up with an INRMP in order 

to be able to look at the entire base in its entirety, the entire biodiversity, the entire area, and come up with a way that you can 

continue to use that base and not in any way harass or harm the 

endangered species that are currently there? 

General BOWDON. That is exactly right, Mr. Chairman. 

The CHAIRMAN. This is your INRMP right here? 

General BOWDON. That is correct, approved by the regulator. 

The CHAIRMAN. Now, when they keep saying that only 1 percent 

has been designated as critical habitat, or a little over 1 percent 

of what you are using, that is an accurate statement. But that has 

nothing to do with all of the areas where you can’t go into. 

The problem is, you’re being sued, and suits are being threatened, that would designate critical habitat on the rest of your base. 

Even though you can’t use that area right now, and you’re trying 

to use some of our modern technology, modern ways of looking at 

the Endangered Species Act, you still can’t use that. But if they 

win and they file a lawsuit and go against you, and that’s all designated as critical habitat, then it’s all off limits to you. 

General BOWDON. Fifty-seven percent, 70,000 acres, will be basically off limits, not available for me, as Commanding General, to 

use it for training, and it will basically become the property of the 

regulator and probably, by litigation, special interest groups. 

The CHAIRMAN. So you’ll end up with whoever files the lawsuit, 

whatever groups go into this, with some say over that, and probably most likely the Fish and Wildlife Service managing those 

areas for the recovery of those endangered species, regardless of 

68

what the critical habitat map comes back like, because at this point 

we really don’t know what the critical habitat map will look like, 

and you will be confined to a very small area of the base. 

Let me ask you this. Where are you going to go to train? 

General BOWDON. Well, sir, we do work-arounds at this point. If 

that were to happen, we would have to work with the regulators 

to find ways that we could do some training at Camp Pendleton. 

However, we would have to use other areas, such as we use— 

The CHAIRMAN. You would be able to have some training at 

Camp Pendleton, but you would have to go somewhere else for the 

rest of your training. 

General BOWDON. At present, sir, we are only able to accomplish 

our training to a 68 to 70 percent standard. If critical habitat were 

imposed, which is what that map now shows, we would be far more 

encumbered and would have to do more training in other places, 

which would affect our quality of life. That training perhaps would 

be at Twenty Nine Palms, and Twenty Nine Palms is not always 

available. And it would cost a lot of money. 

I would also point out that the success in Iraqi Freedom was because of a major work-around, in that we were able to train for 

months in the deserts of Kuwait prior to that action. 

Mr. ABERCROMBIE. Mr. Chairman, would you kindly yield? 

The CHAIRMAN. Yes. 

Mr. ABERCROMBIE. Thank you. I’m asking you to yield on— 

The CHAIRMAN. Before I yield to the gentleman—and I’m going 

to recognize you for your full 5 minutes right now. 

Mr. ABERCROMBIE. Oh. OK. I just wanted to follow up on— 

The CHAIRMAN. I’ll just recognize you, Neil, as soon as I finish. 

Mr. ABERCROMBIE. OK. 

The CHAIRMAN. In wrapping up this part, are there any of you 

on the bases that you have jurisdiction over right now that have 

not had some impact on your training because of endangered 

species? 

Are there any of you that are asking for an exemption from the 

Endangered Species Act or are asking us to gut the Endangered 

Species Act so that you don’t have to abide by it? 

Let the record show they answered in the negative. Mr. Abercrombie. 

Mr. ABERCROMBIE. Thanks very much, Mr. Chairman. 

Mr. Chairman, for the record, I, for one, would like to say that 

I don’t believe that it is either your intent or the intent of others 

in presenting any of this legislation to gut the Endangered Species 

Act. I have great respect for you and your sense of ‘‘Aloha’’ for the 

land and for the creatures on it and in the sea as well. 

My question is a follow up on what the Chairman says. I want 

it understood that my question and observation don’t come from 

the point of view that I believe any of this is what the object is. 

Now, it may be the object of other groups outside—and believe me, 

I’m dealing with it right now. I’m very, very familiar, thoroughly 

familiar, in the sea, in the Pacific, and on land in Hawaii. There 

are people who want to use the Endangered Species Act as a vehicle for their political agenda, and I think they want to go to court. 

That’s why I’m asking this question. 

69

I think Mr. Kildee said at one point, do we really want to use 

a sledge hammer—and law can be a sledge hammer—as opposed 

to trying to implement it perhaps with a stiletto and succeed here, 

particularly where defense is concerned. 

Now, in that context, General, I notice you have critical habitat 

potential. Have you been talking with the Fish and Wildlife 

Service? 

General BOWDON. Every day, sir. 

Mr. ABERCROMBIE. OK. You are familiar with the way the law 

works. Now, I’m going to draw a parallel, not an analogy but a parallel to what’s happening in Hawaii right now, where the potential 

for designating critical habitat could, in effect, be three-quarters of 

the State. On the Island of Kauai, it could have been 75 percent 

of the island. 

That is done as a defensive measure, Mr. Chairman, by Fish and 

Wildlife because they are being sued. What they want to do—and 

if you disagree with this assessment, General, just say so; you’re 

not going to hurt my feelings. In fact, it will help to clarify things. 

When they make the first cut at critical habitat—and I’m just 

going to go through this a little bit, Mr. Chairman, because not everybody may be familiar with how this works. They take the broadest possible definition of critical habitat that could be, by any 

stretch of reason in a court assessed by a judge, as having made 

the widest possible consideration as to what critical habitat might 

be. That’s the first cut, right? 

Then what the law says is Fish and Wildlife has to come to the 

respective parties who are affected by such a designation, including 

the Defense Department, and ask them how does this affect you—

the social impacts, the environmental impacts, the economic impacts, right? At that point, then, they come with a recommendation. And the way it has worked out over and over again is considerably less, sometimes as much as 90, 95 percent, or even more, 

less than what was originally encompassed. But they’re on sound 

legal ground then because they are taking into account the rest of 

the land—excuse me, the rest of the elements, like economic impacts, et cetera. That being the case, that’s why the law exists as 

it is here with exemptions and ESA compliance, takings, for example, in the ocean. 

The difficulty I have is not with what the Chairman says, that 

there are groups out there who want to obviate this whole thing. 

On the contrary, I not only agree with him, but I would like to preclude them being able to do that. But I want to do it in such a way 

that doesn’t kill off all of the good parts about this. 

What I mean about the good parts, Mr. Chairman, it has been 

stated already—I believe Mr. Cole made the point, or observed the 

same thing that I heard the other day, that if you ask Fish and 

Wildlife and Interior and NOAA and some of the other groups, they 

will tell you that the Department of Defense is, if not first rank, 

is among the first rank of agencies in compliance with environmental standards and are good stewards. So it means there’s a 

good working relationship there. 

So, if we want to zero in on those who have a political agenda 

that simply is anti-military, and at the same time trying to uphold 

the environmental standards as embodied in either the Marine 

70

Mammal Protection Act or the Endangered Species Act, doesn’t it 

make sense for you to follow up on the recommendation that I first 

questioned the counsel about under the memorandum from the 

Oversight Council on Sustainable Ranges Action Agenda, in that it 

recommends, Mr. Chairman, that the—and this is the Integrated 

Product Team—recommends that the Secretary of Defense provide 

guidance to the services on how to assess and process exemption 

requests, and provide guidance on Endangered Species Act compliance to assist the installations in assessing regulatory burdens and 

resolve disputes not rising to the level of the exemption candidates. 

My only point here is—and here I have experience with the Navy 

out in the Pacific—is it not the case in the Pacific that Fish and 

Wildlife is trying to work with Barking Sands over on Kauai right 

now and has been rebuffed? They have stated in writing, have they 

not, over and over again, how they are willing to comply and bring 

the critical habitat down to that which is recommended by the 

Navy, and the Navy has said that they won’t do it because you’ve 

got a memo from former Secretary England saying that you are not 

to cooperate with the Fish and Wildlife Service at this point pending the resolution of this language in Congress? 

Admiral MOELLER. Sir, if I may, thanks for that particular question. 

With regard to what has taken place at PMRF, it’s my understanding that critical habitat has already been designated there on 

the strip along PMRF. 

On the second issue you raise with regard to the former Secretary of the Navy’s direction, that was in an effort to obtain overall consistency from activity to activity, as opposed to something 

more to necessarily foreclose the ability to comment. 

Mr. ABERCROMBIE. Is there or is there not a memo—two things, 

a memo, a draft memo providing guidance to the services on how 

to assess and process exemption requests? Maybe the counsel can 

answer. 

Mr. COHEN. Sir, yes, there is. 

The CHAIRMAN. I’ll let the gentleman answer the question, but 

his time has expired. You can answer the question. 

Mr. COHEN. Thank you, sir. 

Yes, sir. It was actually signed by the Deputy Secretary of Defense on March 7th of this year. It does direct the military departments to create a process and criteria for evaluating requests for 

exemption. 

Mr. ABERCROMBIE. Thank you. That’s my point, Mr. Chairman. 

I hope that we can have a discussion or a dialog in the Committee 

here that takes as a starting point your observation about there 

are those who want to—who have their own agenda in here. But 

I assure you that I, for one, do not have such an agenda. But I do 

think that we need to give an opportunity for the DOD to try to 

work an exemption process, and a regulatory burden relief process 

short of exemption, before we move to try and change the language 

itself. I think such an operation is just underway now, and perhaps 

we need a little bit more elucidation from the Department on that. 

The CHAIRMAN. I appreciate the gentleman’s comments. I will 

just respond by saying I think that what you are asking for is actually what we’re trying to do in this bill. 

71

Mr. ABERCROMBIE. I’m sorry? 

The CHAIRMAN. I think what you are asking for is what we’re 

trying to do in this bill. Now, there may be specific language in this 

bill that you question, but the overall effort of this bill is to accomplish what it is you’re asking for. 

Mr. ABERCROMBIE. I’m going to take that as a ‘‘given’’, Mr. Chairman. My only point is that perhaps the DOD itself has solved its 

own problem by the creation of this exemption request process. 

The CHAIRMAN. We have to codify it; that’s the problem. 

Mr. Walden. 

Mr. WALDEN. Thank you very much, Mr. Chairman. 

First of all, Mr. Chairman, thank you for asserting the jurisdiction of this Committee over this issue, because I think when ESA 

issues arise, our Resources Committee needs to be a full participant in the process. So I commend you for not yielding our jurisdiction or waiving it, but rather, having this hearing and for your efforts on this legislation. 

I have a couple of questions, and probably a comment or two, and 

I will address them to Admiral Moeller. Included in your testimony 

you talk about the Least Tern and the Western Snowy Plover populations at the Naval Amphibious Base in Coronado. Specifically you 

state that Least Tern nests have increased from 187 to 825, and 

Western Snowy Plover nests have increased from 7 to 99. This has 

been done, I guess, over a 9-year period. 

Is this under an INRMP? 

Admiral MOELLER. Sir, I would say that, first of all, the fact that 

those two particular species at Coronado have increased over that 

period of time I think bears witness to our stewardship of the environment and the actions taken at Coronado, which as you know, 

sir, is the location where our Navy Special Warfare trains, our 

SEALS train. Of course, that training was very significant and critical to the success of those forces as along with all other forces. 

Mr. WALDEN. But was that done under an INRMP, do you know, 

or just under your general management strategies? 

Admiral MOELLER. It was done under full compliance with the 

Endangered Species Act, sir. 

Mr. WALDEN. So it wasn’t part of an INRMP? 

Admiral MOELLER. No, sir. 

[RADM Moeller’s response submitted for the record follows:]

After reviewing the transcript of my written testimony, I need to clarify 

this response. Yes, Navy has an INRMP that provided the guidelines used 

for conservation and stewardship of these species. As accurately reflected 

in my written testimony, NAB Coronado provides an excellent example of 

the effectiveness of INRMPs in protecting threatened and endangered species. Navy stewardship programs at Naval Base Coronado have greatly increased the number of California Least Tern and Western Snowy Plover 

nests at Naval Base Coronado. Through the Navy’s conservation and management programs, California Least Tern nests have increased from 187 to 

825 (more than a four fold increase) and Western Snowy Plover nests have 

increased from 7 to 99 (nearly a 14 fold increase) in nine years. These increases have been accomplished through the use of our INRMPs and related Biological Opinions issued by USF&WS. I apologize for any confusion 

my oral answer may have created. 

Mr. WALDEN. I commend you for the work you’re doing. Don’t 

take my line of questioning the wrong way. What are the recovery 

72

goals set by U.S. Fish and Wildlife Service on this, on these 

species? Are there specific goals that are set? 

Admiral MOELLER. There may well be, sir. I need to take that 

one for the record, sir, and get back to you on that. 

[RADM Moeller’s response submitted for the record follows:]

California Least Tern that is dated 27 September 1985. The USFWS plans 

to update the recovery plan for the California Least Tern. For the Western 

Snowy Plover the USFWS has a draft recovery plan dated 1 May 2001, and 

has not established final recovery goals. A summary of goals specific to 

Navy installations in the 1985 recovery plan is as follows: develop management plans for Navy sites, look at feasibility of establishing nesting site at 

Naval Radio Receiving Facility San Diego, and control predators. Navy has 

accomplished all these goals. 

Mr. WALDEN. OK. You testified that military training areas were 

originally located in isolated areas, and now they’re surrounded by 

development, leaving the military lands as the only relatively undisturbed habitat for many species. Does this mean your stewardship of these lands has actually come back to bite you now? 

Admiral MOELLER. I would say, sir, that again, we take great 

pride in our ability to preserve the environment in those areas 

where we clearly have to work through those issues. I’m not sure 

that I— 

Mr. WALDEN. Doesn’t it add extra pressure to you if the other 

lands around you have suddenly been developed and paved and 

built on, and it’s your lands that are the ones left open? 

I represent a district that is 72,000 square miles, bigger than any 

State this side of the Mississippi. We face this problem all the time. 

Admiral MOELLER. Yes, sir. I mean, that is clearly a challenge 

that we have to work our way through. One area where that affects 

us, of course, is at Fallon, an area that we’re concerned about. Of 

course, clearly the contribution of Fallon is great from the standpoint of all of our carrier-based air wings who train there, and all 

did train there en route to OIF. 

Mr. WALDEN. I don’t know who could answer this best, but is the 

INRMP process one that’s available to all agencies to use? 

The CHAIRMAN. No, that is DOD military lands. 

Mr. WALDEN. OK. I’m new to this particular segment, because it 

really hasn’t— 

The CHAIRMAN. If the gentleman would yield, it operates similar 

to a habitat conservation plan. That would be with what you’re 

used to dealing with. That would be a more accurate way of looking 

at it. 

Mr. WALDEN. And is the goal then of this legislation, Mr. Chairman, to basically we’ll treat it the same way as a habitat conservation plan, for purposes of satisfying the requirements of the Endangered Species Act, in a way? 

The CHAIRMAN. It goes somewhat beyond that. In my opinion, 

what it does, it locks them in to adopting an INRMP and having 

to follow it, in order to protect species on those lands. 

What has been suggested earlier is that the go to the God squad 

or that they request a national security exemption. It gives them 

lot more leeway to operate than tying them into an INRMP. 

Mr. WALDEN. As you know, Mr. Chairman, in the Klamath 

Basin, where we’ve been through these Endangered Species Act 

73

rules and all, the God squad option is really not a viable one, that 

no one has ever been able to make work, and if you do, it’s costs 

are incredible potentially on those trying to make it work. 

I know my time has run out, but I just hope that as we move 

to take care of the problem you face—and I’m very sympathetic in 

support of resolving it—I have to be able to go home to my district, 

that has suffered for decades because of these issues, unrelated to 

military, on how we manage Federal lands, to be able to explain 

to those folks, and John Day and Prairie City and Baker City, why, 

when the military runs up against a problem with ESA, we carve 

out a way to get around it, but if it’s timber related or water related, we just put people out of business and destroy the economy 

of rural communities. That’s a real bone stuck in my throat, and 

those are the people I represent. 

Do not take that, though, as anything hostile toward what you’re 

doing. I’m sympathetic and will work with the Chairman and you 

all to try and help you in the process. The training and the ground 

is invaluable. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Mr. Grijalva. 

Mr. GRIJALVA. Thank you, Mr. Chairman. 

I have a couple of questions and some observations on some of 

the material that has been provided to us in preparation for this 

hearing. I want to also thank the witnesses for their fine work and 

assuring that our men and women in uniform were prepared and 

ready, and the proof is evident to everyone. 

I was very curious as to the quantification study—I think it was 

Camp Pendleton, if I may, General. That was a contract study commissioned by whom? 

General BOWDON. By the base, sir. 

Mr. GRIJALVA. Thank you. I think some of the information that 

you gave in your testimony, both oral and written, is very pertinent 

to the discussion today. I wanted to know, the data from that particular study, is that available to the public or to the Committee 

and their staff? 

General BOWDON. We can submit the study for the record, and 

would certainly like to do so. 

Mr. GRIJALVA. Thank you, sir. 

Mr. GRIJALVA. On that point, let me maybe follow up with a couple of other questions, if I may, General. 

In that study, as we talk about the encroachment issue, what 

factors besides critical habitat, wildlife protection, affect the military’s ability to train? I think it was just brought up by my colleague just now, including encroachment issues dealing with housing development, transportation and highways. What other factors 

are included in encroachment issues and the inability or ability of 

the— 

General BOWDON. Sir, in the last 10 to 15 years, the biggest encroachment factor has been urbanization around the base, and then 

the destruction of habitat around the base. The growth and endangered species and the regulations associated with them have been 

the largest encroachment factor for Camp Pendleton. 

Mr. GRIJALVA. And the data that we will receive as a Committee 

quantifies that particular point? 

74

General BOWDON. That is exactly right, sir. 

Mr. GRIJALVA. One other point. In your written testimony, General, in speaking of the quantification effort, you revealed that regulatory restrictions to natural and cultural resources constitute 70 

percent of the encroachment factors affecting Camp Pendleton and 

its capability to accommodate training. 

What is the breakdown between environmental protections and 

cultural resource protections at that 70 percent point that you 

make? 

General BOWDON. The biggest encroachment to our operation for 

the purposes of this Committee, sir, is the Endangered Species Act. 

Almost 30 percent of the encroachments that we are now having 

to work with have to do with the Endangered Species Act. 

Mr. GRIJALVA. And the percentage for cultural resources, regulatory issues or restrictions? 

General BOWDON. I’ll take that for the record and get it back to 

you. I think all three of them amount to—the Endangered Species 

Act, the wetlands regulations and the cultural resources 

regulations—all amount to about 70 percent, with the largest being 

the Endangered Species Act. 

Mr. GRIJALVA. I would appreciate that, General. Thank you. 

The observations, Mr. Chairman, that is particular to one very 

vital training area in the district that I represent in Arizona, the 

Barry Goldwater Range. There was an assertion made by the Department of Defense, I think in an interview in 2002 by the Deputy 

Under Secretary of Defense for Readiness, saying that almost 40 

percent of the live missions at the Goldwater Range were canceled. 

Upon further review, and with information provided by the Department of Defense, that figure is not correct. 

What is on the range is the Sonoran pronghorn, which to the latest count is between 21 and 30 of that very critically endangered 

species continue to survive. 

Let’s just concentrate on the flight issues, the sorties. Forty-five 

were canceled, 474 were moved to another location to accommodate 

the pronghorn, and there’s 33,000 of those that are conducted every 

year. 

The other point was made about Fort Hood, TX at 17 percent. 

There’s only 17 percent of the acreage that is usable. I find it ironic, though, or would want more information, on the fact that about 

74 percent of that land acreage is leased out or designated and restricted for cattle operations—the point being, I’m still searching 

for the urgency, the severity, the threat to national security and 

defense that this legislation purports to address. 

I have no other questions. Thank you, Mr. Chairman. 

Mr. WALDEN. [Presiding.] Thank you. 

The Chair now recognizes Mrs. Bordallo. 

Mrs. BORDALLO. Thank you, Mr. Chairman. 

After listening for quite some time here, I realize we have a very 

complex issue before us. I do appreciate the thorough explanation 

of our Chairman, the necessity for us to act on DOD’s request for 

legislative relief from encroachment by litigation. Believe me, I’m 

fully aware of these issues, as we are facing on Guam critical 

habitat designation issues. I represent the Territory of Guam. 

75

Let me begin my questioning by saying that over one-third of our 

land on Guam is occupied by military bases, over one-third. We do 

have a number of designated training areas on our bases, both the 

Air Force and the Navy. I guess my question would be to you, Admiral. 

In the current situation on the U.S. Naval Base in Guam, one 

of the recommendations made by the Fish and Wildlife Service is 

that native birds be reintroduced in order to facilitate their recovery after decimation by the brown tree snake. I’m sure you’ve 

heard about our brown tree snake. I have been told that reintroduction of endangered species on military lands is against the 

Navy’s policy. 

My question is, why does the Navy take the position that it does? 

That is, why will the Department not allow for the reintroduction 

of threatened and endangered species on its lands? And should the 

legislation before us be enacted, would the Navy reconsider this 

position? 

What I’m asking, I guess, is could we have alternative plans in 

place?

[RADM Moeller’s response submitted for the record 

follows:]

It is Navy policy to ensure that proper budgeting and planning is conducted to support ongoing and new natural resource efforts consistent 

with the Endangered Species Act for the conservation of listed species on 

Navy lands, and to ensure that Navy lands will remain available to support 

the military mission for which they have been so designated. Review and 

approval by the chain of command, including both the major claimant and 

CNO N45, is required prior to committing to introduce or re-introducing 

such species on a Navy installation. The availability of funds, ongoing and 

planned stewardship efforts, and consistency with Navy mission are key 

considerations in evaluating any such request from a field command to introduce or re-introduce threatened or endangered species on Navy lands. 

This approval process in no way alters the Navy’s commitment to use its 

authority to enhance the recovery of listed species and their habitats. Fundamentally, the decision to introduce a listed species onto Navy lands mandates a long-term, irretrievable commitment of resources (e.g., funding, 

manpower, real estate, NEPA documentation). It is also possible that this 

type of decision may negatively impact mission readiness by altering the 

primary focus of our designated land use from support of military readiness to that of management and conservation of listed species. Secretary 

of Navy letter of 25 November 2002 reinforced this policy by directing such 

actions be staffed through the chain of command to ensure that Navy 

meets the ‘‘Department’s obligations under Title 10 of the U.S. Code to 

maintain ready forces.’’ Enactment of the proposed legislation, which deals 

with the use of INRMPs in lieu of critical habitat designation, would have 

no impact on our decision making process as it would not impact the key 

decision factors discussed above. 

Mrs. BORDALLO.My position is that many of the bases probably 

do not have proper training areas. Some do and some do not. Some 

are larger. Some are smaller, have more land area to designate for 

training. I think we should look at this legislation on a case-by-case 

basis. This is just my personal opinion. 

So could you answer that for the Navy? 

Admiral MOELLER. Yes, ma’am. Thank you very much for that 

question. 

I am familiar with that issue, from the standpoint of the position 

that the Navy has taken on it, and I believe—it’s my understanding that that position is based on the fact that reintroduction 

76

would create the potential for the species to proliferate and expand 

to the training areas in such a way that would then create some 

significant challenges for us from being able to then operate in the 

future and use those vital training areas for such purposes. So 

that’s the basis on which the Navy position has been taken. 

Mrs. BORDALLO. I understand. Then let me ask a follow-up question. 

How, then, does the Navy suggest recovery of threatened and endangered species that have disappeared from your lands? And if 

you do not support allowing for them to recover on your own lands, 

isn’t this a clear difference between what may be accomplished 

through critical habitat designation and what would be accomplished through only your requested alternative? 

I’m just wondering, is there a plan that you have in place to deal 

with it? Guam doesn’t have a lot of property. 

Admiral MOELLER. The position, ma’am, is that doing so as you 

describe would kind of change the focus and the purpose of the 

land and how that would be allowed to be used if we were to do 

it that way. I think that’s where we are on it, ma’am. 

Mrs. BORDALLO. So your position then would be that, if this 

species of birds are threatened entirely, you don’t feel you could 

change your policy in any way? Is this what you’re saying? 

Admiral MOELLER. No, ma’am. I’m not saying that. I think what 

I need to do is to take that one for the record, if I might, so I can 

provide you a much clearer answer, ma’am. 

Mrs. BORDALLO. All right. Thank you. 

Thank you very much, Mr. Chairman. 

[RADM Moeller’s response submitted for the record follows:]

No. We have carefully considered all aspects of this issue in formulating 

our current policy. We believe that it is fully consistent with the goals of 

the Endangered Species Act and our legal mandate under Title 10. Our penultimate goal is to achieve the correct balance between the protection of 

threatened and endangered species and our national security mission. 

Mr. WALDEN. Thank you. 

I want to thank the panel for being here today, and for your testimony on this legislation. We will excuse this panel and then bring 

up our second panel. 

Mr. TOM UDALL. Mr. Chairman, could we—I just wanted to make 

one more statement, or ask a question to clarify something I said 

earlier, if that’s all right. 

Mr. WALDEN. That will be fine, if the panel can hold then. 

Mr. TOM UDALL. Earlier I made the statement—and the Chairman objected to it—and it had to do with the gutting of the Endangered Species Act. I wanted to make myself clear in the record so 

the Chairman understood what I was talking about. 

Some of the language that has been included in this bill would 

amend the current Endangered Species Act. This is a crucial section of the Endangered Species Act, because it’s declaring what the 

policy of the Congress is. It says—and I’m quoting from the 

statute—under the policy of the Congress. ‘‘It is further declared to 

be the policy of the Congress that all Federal departments and 

agencies shall seek to conserve endangered species and threatened 

species’’—that’s what it currently says, and here’s what is inserted 

77

in this bill: ‘‘...insofar as practical and consistent with their primary purposes.’’ 

So what we’re talking about is, if a Federal agency has this primary purpose and they’re focused on the primary purpose, no 

longer do you have to engage in a section 7 consultation with the 

key Federal agency. To me, that totally changes the landscape. 

The interesting thing to me is that, in fact, in 1966, the Endangered Species Act contained this same language, ‘‘...insofar as practical and consistent with their primary purposes.’’ So that wasn’t 

working in 1966, and we replaced that language with the language 

that’s in the law today. We moved forward and we basically had 

an equality between agencies and between the concern for a species 

and concern for the primary mission, and we were forcing agencies 

to work with each other and resolve these things, which I think the 

military should be applauded for, in the many cases I’ve heard 

about, as Mr. Abercrombie said, for working together with the 

other agencies that are concerned about endangered species and 

finding solutions. 

But under this current bill, under this current bill, if you use 

that language ‘‘...insofar as practical and consistent with their primary purposes’’, what you would end up doing is the Bonneville 

Power Administration and the Corps of Engineers, they could ignore the endangered salmon because they would just say their primary mission is to generate and transmit power, so we don’t have 

to think about salmon any more. 

The Federal Highway Administration could ignore the impact of 

highway construction on endangered species habitat because their 

primary mission is to build and maintain highways. You can see 

the example going on and on and on. 

So this change could eliminate the need for any Federal agency 

to ever consider the impact of its action on endangered species. 

That’s what worries me. That’s what I think is very dramatic about 

what is being done here. I used the term ‘‘gut’’, and I still stand 

by it. But I believe that this is a dramatic change when we start 

saying ‘‘primary mission’’ and you then don’t have to deal with an 

endangered species issue. I think that’s the way a court would look 

at it. 

I appreciate very much Chairman Walden for just giving me a 

second to outline that. It’s not a question to this panel. I wanted 

to make clear what I was saying to the Chairman. I once again 

want to thank the military officers here for their service to the 

country and for the remarkable job that they did in Operation Iraqi 

Freedom. 

Thank you very much, Mr. Chairman. 

Mr. WALDEN. The gentleman yields back his time. 

I would just yield myself 5 minutes, as we go back and forth 

here, and I won’t take the full five. But given that the gentleman 

raised the issue of Bonneville Power and all, as I read this proposed language, I don’t read it the same way, because it says ‘‘insofar as is practicable and consistent with their primary purpose.’’ In 

the case of Bonneville Power, it’s primary purpose is to manage the 

river system to produce power. It is also practicable that they can 

manage it in a way that is not harmful to the fish in the river. I 

think that’s practicable. They can do it. 

78

What we’re trying to get at here—and I’m not trying to speak for 

the Chairman; he does a quite adequate job of that himself—but 

we’re trying to get back to an evolution and a balance here that 

some of us think it has gotten out of balance. So I would just say 

that the idea here is to get back to a more level playing field. 

Obviously, the law evolved out of ’66 to ’73, and I think it’s time, 

30 years later, to say maybe things aren’t working quite the way 

they need to work and maybe there’s a better way to do it. 

I would yield back and recognize my colleague. 

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman. 

I think the bottom line of the question, at least in my mind, and 

the concerns we have from our friends here from the various 

branches of the armed services—I’m not on the Armed Services 

Committee, but I think the bottom line issue that we’re looking at 

is to determine how we can go about in giving the best possible 

training for our military men and women in uniform, training to 

the effect that anything less asks the question of their lives in the 

field of combat. I think this is basically what we’re looking at, at 

least that’s my understanding. It’s the bottom issue. 

But there seems to be a mixed bag here, Mr. Chairman, in terms 

of my observation. There is a mixture here that I see that in some 

military installations things work very well between the communities and the enforcement of the Endangered Species Act, and in 

other military installations we have very serious problems, the situation at Camp Pendleton, as explicitly stated by General Bowdon, 

and the problems that he is confronted with. So we definitely have 

a problem there. 

I, for one, would like to see, if I gather from the testimony of our 

friends here, that there is a consensus among the armed services 

that we are providing less effectiveness in terms of how we’re training our men and women in combat. Am I wrong on this observation? Am I to agree that there’s consensus that we are not providing first-class training opportunities for our men and women in 

uniform and that’s the reason for your presence here? 

General BOWDON. That is correct, sir. I have identified the problem as a degradation to training, and I have quantified that problem that, aboard Camp Pendleton, we are only able to meet a 68 

percent standard of training because of our compliance with the 

Endangered Species Act. 

Mr. FALEOMAVAEGA. And there is absolutely no way in your capacity, or even with those Federal agencies, that you can work 

something out with reference to the current law as it now stands. 

It’s impossible for you in your capacity, as I understand it, from 68 

percent efficiency that you’re having now in training your men in 

combat; am I correct on this? 

General BOWDON. That is correct. But I would caution to this, in 

that we have received no reward for the good job that we have 

done. We have been given a recovery standard on several of the 

species, and for the Least Bell’s Vireo, for example, there was less, 

when we started studying them, less than 300. The recovery standard was set at 300. We now have 700. I still have to work around 

the 700. So that’s why I am encumbered. 

Mr. FALEOMAVAEGA. Please, I’m not faulting you in your situation. I’m just simply saying that this is the reality you’re conVerDate 0ct 09 2002 10:39 Nov 04, 2003 Jkt 087420 PO 00000 Frm 00082 Fmt 6633 Sfmt 6602 J:\DOCS\86854.TXT HRESOUR1 PsN: KATHY
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fronted with right now, as far as training resources made available 

at Camp Pendleton; you simply do not have the land available to 

train the number of men that you now have under your command 

simply because of the restrictions placed by the Endangered 

Species Act; am I correct on this? 

General BOWDON. That is correct. But what I really need is clarification of my mission and clarification of the law for my mission, 

and codification of the current regulator’s, Fish and Wildlife 

Service practices, and their approval of the Integrated Natural Resource Management Plans that we have. 

Mr. ABERCROMBIE. Will the gentleman yield? 

Mr. FALEOMAVAEGA. Yes. 

Mr. ABERCROMBIE. But, General, doesn’t that go to my question 

back here? This is coming from the DOD. It’s not something I’m 

making up. The DOD should develop guidance on ESA compliance 

to assist installations in assessing regulatory burdens, 300 to 700, 

and resolving disputes not rising to the level of exemption candidates. 

What you just talked about probably doesn’t rise to the level of 

an exemption. But you haven’t even made an inquiry. You have no 

guideline. You know, I’m familiar with about what the potential is. 

I went through that with the court. Fish and Wildlife has its standard, being able to go back into court and be able to hold off these 

groups that come in and want to knock you out of the box. They’re 

trying to take you out there. 

Fish and Wildlife isn’t trying to do that. They have to protect 

their right flank, too. At least my experience with Fish and Wildlife 

is that they are more than willing to try to accommodate what you 

need to have done, but you folks don’t even have a fundamental 

guideline, a paper or procedure. 

Mr. FALEOMAVAEGA. Reclaiming my time, Mr. Chairman, not 

only do I agree with my good friend from Hawaii’s assessment and 

concerns, but the bottom line concern that I have—and I think this 

seems to be the consensus here on this side of the aisle—the Department of Defense should take an overall concern about the very 

thing that Mr. Abercrombie has stated earlier, rather than each 

branch of the armed services saying we’ve got a problem but with 

no plan put forward. I think this is the concern we have. 

We’re not against the military providing the best possible training. We’re just trying to see if we can establish a balance in terms 

of what we’re concerned about as far as the Endangered Species 

Act and the needs for giving our men and women good training. 

That’s all I’m concerned about. 

Thank you, Mr. Chairman. 

The CHAIRMAN. [Presiding.] The gentleman’s time has expired. 

Before I dismiss this panel, I want to thank you for your testimony and for answering the questions. I think all of you now have 

the opportunity to see what some of the questions and concerns are 

of the Committee and how difficult it is to move legislation such 

as this through the Committee. 

I think you can also see that there is a tendency for some of us 

to not fully grasp just how difficult it is for you to do your jobs. 

I look forward to continuing to work with you in hoping to move 

this legislation forward. 

80

Mrs. CHRISTENSEN. Mr. Chairman? 

The CHAIRMAN. Mrs. Christensen. 

Mrs. CHRISTENSEN. Could I also ask one final question? 

The CHAIRMAN. If you make it real quick. 

Mrs. CHRISTENSEN. OK. Probably some testimony will come later, 

but this goes to Colonel DiGiovanni. Professor Kunich, who will 

testify later, was formerly the chief environmental Law attorney 

for the Air Force Space Command. In his testimony he states, 

‘‘During my two decades of military legal service, which included 

the first Gulf War, our intervention in Kosovo, and several major 

operations other than war, I never became aware of even one instance in which the Endangered Species Act or the Marine Mammal Protection Act posed an impediment to the military mission.’’ 

Have things changed dramatically since he left in 1999 to bring 

us to the point which we’re at today? 

Colonel DIGIOVANNI. I’m not sure what experiences the Judge 

Advocate has as far as preparing warfighters for combat. But I can 

say that we in the Air Force have a very good working relationship 

with the U.S. Fish and Wildlife Service and State agencies that 

allow us to produce what I think are pretty good Integrated Natural Resource Management Plans. 

Again, I think what we’re trying to do with the RRPI is to codify 

that into law, so that we can look at each individual issue out on 

the range in a holistic manner, in a way that takes a look at the 

entire ecosystem that we’re trying to train on and produce 

warfighters to do what is needed for national defense needs. 

Mrs. CHRISTENSEN. We appreciate the need for the ability to 

train and the difficulty being in court has presented to many 

branches of the armed forces, but it just seems this goes a bit further than it should go and it really undermines an Act that I think 

is important, that we protect and preserve. 

The CHAIRMAN. I would agree with the lady, that the Endangered Species Act is important and it needs to be preserved. Unfortunately, when we have a panel of witnesses that testify for twoand-a-half hours about all of the problems they’re having, it makes 

it difficult to move forward and do what we really need to do in 

order to allow them to do their job. 

I do appreciate your testimony. I’m going to dismiss this panel. 

Thank you very much for your testimony. 

Mr. ABERCROMBIE. Mr. Chairman. They can go. 

The CHAIRMAN. Yes. You guys can go. And I’m going to call up 

our next panel. 

Mr. Abercrombie. 

Mr. ABERCROMBIE. I just wanted to compliment you on the fact 

that the two-and-a-half hours shows the thoroughness with which 

you’re trying to come to grips with the issue, and I, for one, appreciate it. 

The CHAIRMAN. Thank you. 

Mr. ABERCROMBIE. Even if nobody else does, Mr. Chairman. 

[Laughter.] 

The CHAIRMAN. Thank you very much. I want to welcome our 

second panel. Before you guys get too comfortable, I would ask you 

to stand and raise your right hand. 

[Witnesses sworn.] 

81

Let the record show they answered in the affirmative. I welcome 

you here today. I apologize for the delay. I know that both you gentlemen have been waiting for your opportunity to testify. 

Judge Manson, we are going to start with you in just 1 second. 

If I could have order in the Committee. I would like to have that 

rear door shut, and if you’re in, you’re in, and if you’re out, you’re 

out. These gentlemen have been waiting for a long time to have 

their opportunity to testify and they deserve to be heard. 

Judge Manson, if you’re ready, you may proceed. 

STATEMENT OF CRAIG MANSON, ASSISTANT SECRETARY FOR 

FISH AND WILDLIFE AND PARKS, U.S. DEPARTMENT OF THE 

INTERIOR 

Mr. MANSON. Thank you, Mr. Chairman. I appreciate the opportunity to testify this afternoon on this subject on behalf of Secretary Norton, who understands the unique nature of the duties 

and missions of the military and the need to train effectively for 

military activities. On a personal note, I have seen these issues 

from both perspectives, having served nearly 30 years in the active 

duty Air Force, the Air Force Reserve, and the Air National Guard. 

Many times I was called upon to advise commanders about compliance with environmental laws, including the Endangered Species 

Act. 

From that experience, and my experience as a State regulator in 

California, I can say that the Department of Defense has been an 

exemplary steward of the Nation’s natural resources, and that 

opinion is shared by the Secretary and throughout the Department 

of the Interior. 

The Fish and Wildlife Service, which I oversee, has actively 

sought to work with the Department of Defense to achieve a balance between meeting the requirements of various natural resources laws without impacting the military’s ability to train. 

My testimony today focuses on the proposal concerning the substitution of Integrated Natural Resource Management Plans, 

INRMPs, on military installations for critical habitat under the Endangered Species Act. At least 300 listed species occur on Department of Defense lands, and access limitations due to increased security, the necessity for buffer zones, and good military stewardship has resulted in some of the finest remaining habitat occurring 

on those military lands. 

The ESA requires the Fish and Wildlife Service to designate critical habitat for listed species, if designation is prudent and determinable. Critical habitat designations on DOD lands can impact 

the ability of the military to prepare and train by imposing additional requirements for consultation under section 7 of the Act. 

As you are aware, Mr. Chairman, I have offered testimony at a 

recent hearing which focused on the problems the Fish and Wildlife 

Service currently faces in implementing the ESA’s requirements to 

designate critical habitat. If I may, I would like to offer some brief 

general comments on that issue, followed by a discussion of critical 

habitat issues on military lands. 

For many years, the Fish and Wildlife Service has faced the difficult challenge of meeting all of the non-discretionary deadlines to 

list species and designate critical habitat imposed by the ESA. 

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There are an ever-increasing series of court orders, compliance 

with which now consumes nearly the entire listing budget. Moreover, the accelerated schedules that often result from litigation 

have left the Service with almost no ability to confirm the scientific 

data and its administrative record before making decisions on listing and critical habitat proposals, without risking noncompliance 

with judicially imposed deadlines. 

Finally, it has fostered a second round of litigation in which 

those who fear adverse impacts challenge designations. The cycle 

of litigation is endless, it’s expensive, and in the final analysis, provides almost no additional protection to listed species. The time 

spent on lawsuits could be better spent on focusing on those actions 

which benefit species, through the development and implementation of recovery plans, working to develop partnerships with States 

and land owners, including the military. 

The Department of Interior’s policy is to exclude military facilities from critical habitat designations, if the military has an improved INRMP which addresses the species in question. We support the codification of this policy, as it has allowed the Department of Interior to address a number of Department of Defense 

concerns over critical habitat designations. You heard some of 

those concerns. 

If I may, Mr. Chairman, this is a moderate policy, begun in the 

last administration. It provides a superior way of dealing with the 

issues raised by critical habitat because it approaches it from an 

ecosystem perspective instead of the long-discredited, species-byspecies approach. It provides real management instead of the lack 

of management provided by the critical habitat designation. For 

that reason, we support it. 

A recent court decision, however, has clouded our ability to exclude military lands; that was referred to by one of the earlier witnesses, involving the Forest Service suit in the District of Arizona. 

For that reason, it would be important to codify this policy. 

In closing, Mr. Chairman, I believe that both the Interior Department and the Department of Defense have operated cooperatively 

to implement natural resources conservation laws passed by Congress. We are aware of the challenges that have arisen during this 

endeavor. 

This concludes my testimony. I will be glad to answer any questions at the appropriate time. 

[The prepared statement of Mr. Manson follows:]

Statement of Hon. Craig Manson, Assistant Secretary for Fish and Wildlife 

and Parks, U.S. Department of the Interior 

Mr. Chairman and members of the Committee, I am Craig Manson, Assistant 

Secretary for Fish and Wildlife and Parks in the Department of the Interior 

(Department). I am pleased to appear before you today to discuss the role of the 

Department of the Interior in implementing Federal natural resource laws and our 

continuing working relationship with the Department of Defense (DoD) on natural 

resource issues. My statement will address the Fish and Wildlife Service’s responsibilities and authorities under the Endangered Species Act (ESA), the Sikes Act, 

and the Marine Mammal Protection Act (MMPA). These laws reflect our Nation’s 

long-standing commitment to the conservation of our natural resources for the benefit of future generations. 

The Department interacts with Department of Defense activities through its bureaus, including the U.S. Fish and Wildlife Service, the Bureau of Land Management, and the National Park Service. The Fish and Wildlife Service strives to insure 

83

flexibility in meeting our joint responsibilities under the various natural resource 

laws without impacting the military’s ability to train its personnel. I believe that 

the Fish and Wildlife Service and the military have done a commendable job at 

working together to strike a balance between our legal responsibilities and the 

Armed Forces’ duty to be both protectors of our National Security and stewards of 

our natural heritage. I also acknowledge that more can be done. I will address both 

our successes and challenges as I discuss issues associated with the applicable laws. 

Endangered Species Act 

The ESA was passed in 1973 to conserve vulnerable plant and animal species 

that, despite other conservation laws, were in danger of extinction. 

DoD has a critically important role to play in the conservation of many rare 

plants and animals. At least 300 species listed as threatened or endangered occur 

on DoD-managed lands. DoD manages approximately 25 million acres on more than 

425 major military installations throughout the United States. Access limitations 

due to security considerations and the need for safety buffer zones have sheltered 

many military lands from development pressures and large-scale habitat loss. As a 

result, some of the finest remaining examples of rare wildlife habitats exist on military lands. 

The Fish and Wildlife Service has strived to establish good relationships with 

DoD that enable the military to carry out its mission of protecting our country while 

also ensuring the conservation of ESA-listed species on land it manages. 

Candidate Conservation 

Conserving species before they need protection under the ESA is easier, more efficient, and poses fewer challenges to Federal agencies, including the military. In 

partnership with DoD and NatureServe, the Fish and Wildlife Service is developing 

a list of all at risk, non-federally listed species that may be found on or near military lands. This partnership project was developed by the military agencies, and 

demonstrates their interest in working with the Fish and Wildlife Service to benefit 

species. 

The term ‘‘species at risk’’ is a term used by NatureServe for a native species that 

is either a candidate for listing or is considered by NatureServe and the Network 

of Natural Heritage Programs to be ‘‘imperiled’’ or ‘‘critically imperiled.’’ In 

NatureServe’s use of the term, ‘‘species at risk’’ refers to species that are presumed 

extinct, historical, critically imperiled, imperiled, and vulnerable (GX, GH, G1, G2, 

G3 ranks, respectively). Although the Fish and Wildlife Service generally means the 

same thing when we use the term ‘‘species at risk,’’ we use the term as a descriptive, illustrative term for those species that may warrant conservation to prevent 

the need to list under the ESA. A ranking of G1, G2, or G3 indicates those kind 

of species. ‘‘Imperiled’’ and ‘‘critically imperiled’’ are defined by NatureServe as 

terms referring to G1 and G2 ranked species. 

Once a species at risk is identified based on a mutual priority between the DoD 

installation and the Fish and Wildlife Service, the Fish and Wildlife Service works 

with DoD to develop and implement conservation recommendations for the relevant 

activity. DoD working on a particular ‘‘species at risk’’ is based on a mutual priority 

between the DoD installation and the Fish and Wildlife Service. 

In addition to this local and regional cooperation, Fish and Wildlife Service and 

DoD personnel have been meeting quarterly for several years in an ‘‘Endangered 

Species Roundtable.’’ This informal session allows for open discussion and can lead 

to the referral of particularly difficult issues to headquarters for guidance or resolution. The group also reviews the Sikes Act and Integrated Natural Resource Management Plan (INRMP) development and implementation as they pertain to endangered species management. 

Challenges 

Even with these successful partnerships, we acknowledge that there have been 

challenges in resolving endangered species conservation and the military mission at 

some DoD bases and facilities. For example, 18 threatened or endangered species 

occur on Camp Pendleton, a Marine Corps Base in California. For some of these 

species, like the tidewater goby, the base harbors the only known remaining populations. Preventing potential conflicts between endangered species conservation and 

Camp Pendleton’s primary military mission continually challenges the creativity of 

both the Fish and Wildlife Service and the base leadership. 

Section 7(j) of the ESA provides a national security exemption that DoD can invoke in cases where National Security would be unacceptably compromised by conservation responsibilities. This exemption has never been invoked by DoD, a fact 

that speaks very well to the creativity of our military and natural resource professionals. However, it is apparent that we must avoid penalizing the military for havVerDate 0ct 09 2002 10:39 Nov 04, 2003 Jkt 087420 PO 00000 Frm 00087 Fmt 6633 Sfmt 6621 J:\DOCS\86854.TXT HRESOUR1 PsN: KATHY
84

ing done positive things for conservation of species and we must not unfairly shift 

the burden of species protection to the military. Additionally, in some cases, issues 

arise because of differing perceptions between our respective agencies about the effects of the provisions of the ESA. Finally, I must note that many of the challenges 

presented to the military under the ESA are similarly faced by other Federal agencies and private landowners. We look forward to continuing to work with the DoD 

to clarify these issues and build upon the relationship we have established. 

Critical Habitat Designation 

As you are aware Mr. Chairman, I offered testimony at a recent hearing which 

focused on the problems the Department and the Fish and Wildlife Service currently 

faces in implementing the ESA’s requirements to designate critical habitat. If I may, 

would like to offer some brief general comments on this issue, followed by a discussion of critical habitat issues as the relate to military lands. 

Designation of critical habitat has been a source of controversy and challenge for 

many years. For well over a decade, encompassing four separate Administrations, 

the Fish and Wildlife Service has been embroiled in a relentless cycle of litigation 

over its implementation of Section 4 of the ESA. The underlying premise of those 

cases has been a dispute between the Fish and Wildlife Service and numerous private litigants over the proper allocation of the limited funds appropriated by Congress to carry out the numerous petition findings, listing rules, and critical habitat 

designations mandated under the rigorous deadlines in Section 4. The Fish and 

Wildlife Service now faces a Section 4 program in chaos—not due to agency inertia 

or neglect, but due to limited resources and a lack of scientific discretion to focus 

on those species in greatest need of conservation. 

For many years the Fish and Wildlife Service has been unable to comply with all 

of the non-discretionary deadlines imposed by Section 4 of the ESA for completing 

mandatory listing and critical habitat (listing program) actions within available appropriations. The majority of private litigants have therefore repeatedly sued the 

Fish and Wildlife Service because it has failed to meet these non-discretionary deadlines. These lawsuits have subjected the Fish and Wildlife Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This 

leaves the Fish and Wildlife Service with little ability to prioritize its activities to 

direct scarce listing resources to the listing program actions most urgently needed 

to conserve species. 

Moreover, the accelerated schedules that often result have left the Fish and Wildlife Service with almost no ability to confirm the scientific data in its administrative 

record before making decisions on listing and critical habitat proposals, without 

risking noncompliance with judicially-imposed deadlines. Finally, it has fostered a 

second round of litigation in which those who fear adverse impacts from critical 

habitat designations challenge those designations. This cycle of litigation appears 

endless, is very expensive, and in the final analysis provides relatively little additional protection to listed species. 

In short, litigation over critical habitat has hijacked our priorities. The Fish and 

Wildlife Service’s listing program’s limited resources and staff time are being spent 

responding to an avalanche of lawsuits, and court orders focused on critical habitat 

designations. We believe that this time could be better spent focusing on those actions that benefit species through improving the consultation process, the development and implementation of recovery plans, and working to develop voluntary partnerships with States and other landowners. As discussed in more detail below, this 

includes the military agencies. 

Issues Relating to Definitional Exclusions from Critical Habitat 

Integrated Natural Resource Management Plans (INRMPs) are planning documents that allow the military to implement landscape-level management of its natural resources while coordinating with various stakeholders. The Department of the 

Interior initiated a policy in the previous Administration, which we have continued, 

to exclude military facilities from critical habitat if there was an approved INRMP 

for that facility which addressed the species in question. However, a recent court 

case has cast doubt on our ability to continue this practice. 

The policy is based on the definition of critical habitat which states, in part: 

...the specific areas within the geographical area occupied by the 

species...on which are found those physical or biological features—(I) essential to the conservation of the species and (II) which may require special 

management considerations or protection; 

The exclusion policy was based on a decision that military lands with an approved 

INRMP, and other types of land with approved management policies, did not require 

85

special management consideration because they already had adequate management 

and, thus, by definition would not be considered critical habitat. 

However, the U.S. District Court in Arizona has ruled, in a case relating to Forest 

Service lands (Center for Biological Diversity v Norton), that this interpretation is 

wrong, and the fact that lands require special management necessitates their inclusion in, not exclusion from, critical habitat. The Court went on to say that the government’s interpretation amounted to our inserting the word ‘‘additional’’ into the 

statute (between ‘‘require’’ and ‘‘management’’), and that only Congress can so revise 

the definition. 

While the implications of this decision go far beyond military lands, we felt it important to advise the Committee of it and the cloud it casts over our continued ability to exclude military lands with approved INRMPs from critical habitat. We believe this adds additional weight to the Administration’s proposal, contained in the 

Readiness and Range Preservation Initiative, for a statutory exclusion. 

To avoid possible confusion in light of the Court’s ruling, we would suggest striking the words ‘‘provides the ‘‘special management considerations or protection’’ required under the Endangered Species Act (16 U.S.C. 1532(5)(A)) and’’ from the proposed new section 2017(a) of the Administration’s Readiness and Range Preservation Initiative. While that phrase is consistent with our interpretation of the law, 

it could cause future litigation problems due to the Court’s ruling that the necessity 

for ‘‘special management considerations or protection’’ requires that land to be included, not excluded, from critical habitat. This change would leave the section with 

an unambiguous statement that completion of an INRMP for the species in question 

precludes designation of critical habitat at that facility. 

Other Recent Critical Habitat Actions 

The ESA portion of the Administration’s proposal addresses critical habitat designations. The Department has been able to address a number of DoD concerns over 

critical habitat designations. 

Critical habitat proposed for the purple amole, a plant, in California included significant portions of Camp Roberts and Fort Hunter Liggett. Camp Roberts had a 

completed INRMP which addressed conservation of this plant, and we excluded it 

from the critical habitat designation on this basis. 

While Fort Hunter Liggett was developing an INRMP to address the plant, it did 

not have the plan completed at the time we had to make the decision on the critical 

habitat designation. However, DoD had provided us with detailed comments on the 

adverse impacts to military readiness that would result from the proposed designation, and these justified removing the Fort from the critical habitat under section 

4(b)(2) of the ESA. We determined that the benefits of excluding the area exceeded 

the benefits of inclusion, in that the adverse impacts to national defense exceeded 

the benefits that would result from designating the area as critical habitat. 

Although not the basis for our decision, the fact that Fort Hunter Liggett had a 

statutory obligation to complete its INRMP, and to include the plant within that 

plan, provided us with an additional comfort level for that exclusion. 

Sikes Act and Integrated Natural Resource Management Plans 

In Fiscal Year 2002, the Fish and Wildlife Service and state fish and wildlife 

agencies assisted in development, review, and/or implementation of INRMPs for 225 

military installations in the United States. 

INRMPs serve as an effective vehicle through which DoD and the Military 

Services can comprehensively plan for conservation of fish and wildlife species. This 

planning has the potential to address important needs for resident endangered 

species, including the protection of habitat. 

We are committed to improving and expanding our existing partnerships with 

DoD, the Army, the Navy, the Air Force, and the Marine Corps. We look forward 

to opportunities to increase the utility of INRMPs as tools to maximize the potential 

benefits of DoD lands to fish and wildlife conservation while ensuring effective 

training of our troops. 

Marine Mammal Protection Act 

The Marine Mammal Protection Act of 1972 established a Federal responsibility, 

shared by the Secretaries of the Interior and Commerce, for the management and 

conservation of marine mammals. The Department of the Interior is responsible for 

sea otters, walrus, polar bears, dugongs, and manatees, while the Department of 

Commerce is responsible for cetaceans and pinnipeds, other than walrus, including 

seals, whales and dolphins. In 1994, Congress enacted a number of amendments to 

the statute. One of the provisions, with broad applicability throughout the Act, 

added the definition of ‘‘harassment’’ as an element of the Act’s take provisions. 

86

Over the last several years, the Fish and Wildlife Service has worked diligently 

with the National Marine Fisheries Service (NMFS), the Marine Mammal Commission (MMC), the United States Navy, and Alaska Natives to develop proposals that 

enhance marine mammal conservation, and provide greater certainty to the regulated public regarding certain areas of the existing law. During this process, revisions to the definition of harassment were considered to address a number of concerns, including those expressed by the Navy. The text of this proposed amendment 

to the definition of harassment is contained in Administration’s Range Readiness 

and Preservation initiative in a way that only applies to DoD military readiness activities. 

We note that this same language applying to all entities, in addition to other important proposals related to the MMPA, are contained in the Administration’s comprehensive legislative proposal to reauthorize and amend the Marine Mammal Protection Act. This MMPA reauthorization proposal was transmitted to Congress at 

the end of February. The Department strongly supports enacting this comprehensive legislative proposal, which will address the concerns of the Navy regarding harassment. 

The Administration’s Range Readiness and Preservation initiative contains two 

other provisions related to the MMPA—an incidental take provision related to military readiness activities, and a national defense exemption. Because the Department of Commerce has the most interaction with DoD regarding these particular 

MMPA issues, we will defer to their comments on these provisions. 

Conclusion 

In closing, Mr. Chairman, I believe both the Department of the Interior and DoD 

have acted cooperatively to implement natural resource conservation laws passed by 

Congress. We are aware of the challenges that have arisen during this endeavor. 

The Department is prepared to explore and craft creative solutions to balance our 

conservation mandates with military readiness. We look forward to continue work 

with the Department of Defense on this vitally important matter. 

This concludes my testimony. I appreciate the opportunity to appear today before 

the Committee, and I would be pleased to answer any questions you have. 

The CHAIRMAN. Thank you. 

Dr. Hogarth. 

STATEMENT OF WILLIAM T. HOGARTH, ASSISTANT ADMINISTRATOR FOR FISHERIES, NATIONAL MARINE FISHERIES 

SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION 

Dr. HOGARTH. Thank you, Mr. Chairman, and members of the 

Committee. I am Bill Hogarth, the Assistant Administrator for 

Fisheries at the National Oceanic and Atmospheric Administration. 

I appreciate the opportunity to testify before you today regarding 

H.R. 1835, which proposes amendments to the Endangered Species 

Act and to the Marine Mammal Protection Act. 

H.R. 1835 is still under review by the Administration. However, 

I am prepared to give preliminary views today. As always, we are 

happy to work with the Committee to resolve any concerns. 

Over the past several years, NOAA worked closely with the U.S. 

Fish and Wildlife Service, the Department of Defense, the Marine 

Mammal Commission and others to develop an administration proposal to reauthorize the MMPA. This administration MMPA bill 

was transmitted to Congress in February of this year. 

Revising the MMPA’s definition of harassment has been a major 

topic in reauthorization discussions. NOAA has experienced a number of difficulties with interpretation, implementation, and enforcement of the current MMPA harassment definition. The current definition impedes NOAA’s ability to adequately enforce the MMPA’s 

take provisions. As it is currently written, only those acts involving 

87

‘‘pursuit, torment, or annoyance’’ can be addressed. Additionally, 

the agency must provide that the act has the potential to either injure or disturb a marine mammal. Thus, it contains a two-tiered 

standard that the agency must meet before it can properly enforce 

the Act. H.R. 1835 helps eliminate these problems. 

The current definition is also overly broad and fails to create a 

clear threshold for what activities do or do not constitute harassment. NOAA supports the manner in which H.R. 1835 clarifies the 

definition of harassment to focus the agency and the regulated 

community on the types of harassment that results in meaningful, 

biological disturbance to marine mammals. 

The current definition also does not provide an adequate mechanism to address activities intentionally directed at an individual or 

groups of marine mammals that could have biologically significant 

impacts. 

NOAA supports the third tier of the harassment definition in 

H.R. 1835, which makes it explicit that activities that are likely to 

disturb marine mammals that are directed at individual or groups 

of marine mammals are considered harassment. 

Overall, NOAA strongly supports the proposed amendments to 

the harassment definition contained in H.R. 1835, which effectively are identical to the proposed harassment definition in the 

Administration’s MMPA bill. H.R. 1835 will apply a clear standard 

of harassment to the entire regulatory community and will result 

in more meaningful protections for marine mammals and focus on 

activities that will result or could result in significant impacts on 

marine mammals. 

In addition to the harassment language change, H.R. 1835 would 

also amend several parts of the current legislative requirements 

that authorize incidental take legislative language in section 

101(a)(5) of the MMPA. Incidental takes are those that are unintentional and may occur during otherwise lawful activities. 

Under the MMPA, NOAA fisheries will authorize the takes of 

small numbers of marine mammals if the takings will have no 

more than a negligible impact on those marine mammal species or 

stocks, and not have an unmitigable adverse impact on subsistence 

levels of these species. 

H.R. 1835 would delete the ‘‘small numbers’’ standard in section 

105(a)(5) of the MMPA and would no longer require that activities 

under this section be limited to a ‘‘specified geographic region.’’ 

These proposed amendments do not change the applicant’s requirement of having to show that their activities are having a negligible 

impact on the marine mammal species and populations. Additionally, applicants seeking small take authorizations for their activities will still have to abide by all requirements of the Endangered 

Species Act, the National Environmental Policy Act, and the Administrative Procedure Act, where they apply. 

These small take applications are currently evaluated based on 

the biological significance of the effect their actions would have on 

marine mammals. This will not change under the amendments proposed in H.R. 1835, and NOAA does not believe that the protection 

of marine mammals will be decreased under this bill. 

In conclusion, I hope to have the opportunity to work with the 

Committee to resolve outstanding issues in this bill, and to work 

88

to improve areas in need of attention in both the MMPA and the 

ESA. I look forward to working with the members of the Committee, your staff, and other interested members of the public to 

meet the challenges that we all face in conserving and protecting 

marine mammals and endangered and threatened species. 

This concludes my testimony, Mr. Chairman. Thank you again 

for the opportunity to testify before your Committee today. I look 

forward to answering any questions you may have. 

[The prepared statement of Dr. Hogarth follows:]

Statement of Dr. William T. Hogarth, Assistant Administrator for Fisheries, 

National Marine Fisheries Service, National Oceanic and Atmospheric 

Administration, U.S. Department of Commerce 

Mr. Chairman and Members of the Subcommittee, thank you for inviting me to 

testify today on H.R. 1835. I am Dr. William T. Hogarth, Assistant Administrator 

for Fisheries at the National Oceanic and Atmospheric Administration (NOAA). I 

appreciate the opportunity to testify today regarding the bill, which proposes 

amendments to the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA). NOAA Fisheries shares jurisdiction over implementation of both 

of these statutes with the U.S. Fish and Wildlife Service (USFWS). NOAA Fisheries 

administers the MMPA for approximately 150 stocks of cetaceans, seals, and sea 

lions, while USFWS has responsibility for walruses, manatees, polar bears, dugongs, 

and sea otters. 

H.R. 1835 was recently introduced and is still under review by the Administration. It includes some provisions that are similar to the Administration’s Readiness 

and Range Preservation Initiative. NOAA Fisheries has not yet completed a thorough review of the bill but we are prepared to give preliminary views today. As always, we are happy to work with the Committee to resolve any concerns. 

MARINE MAMMAL PROTECTION ACT 

Definition of Harassment 

Over the past several years, NOAA worked closely with the USFWS, Department 

of Defense, Marine Mammal Commission, and others to develop an Administration 

proposal to reauthorize the MMPA. This Administration MMPA reauthorization bill 

was transmitted to Congress in February 2003. 

Revising the MMPA’s current definition of harassment has been a major topic in 

reauthorization discussions. NOAA strongly supports the proposed amendments to 

the harassment definition contained in H.R. 1835. These amendments are effectively identical to the proposed harassment definition in the Administration’s current proposed MMPA bill, as well as the MMPA reauthorization proposed by the 

Clinton Administration. We appreciate the work the Committee has already done 

to reauthorize the MMPA and look forward to working with you to achieve timely 

passage of a bill. 

The definition of harassment, a critical component of the ‘‘take’’ prohibition, which 

is also defined in the Act, has broad applicability throughout the MMPA. The current definition in the MMPA separates harassment into two levels. Level A harassment is defined as, ‘‘any act of pursuit, torment, or annoyance which has the potential to injure a marine mammal or marine mammal stock in the wild.’’ Level B harassment is defined as, ‘‘any act of pursuit, torment, or annoyance which has the potential to disturb a marine mammal or marine mammal stock in the wild by causing 

disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.’’

NOAA has experienced difficulties with interpretation, implementation, and enforcement of the current MMPA harassment definition. First, the definition is limited to acts involving ‘‘pursuit, torment, or annoyance.’’ Second, the definition is 

overly broad and does not provide a clear enough threshold for what activities do 

or do not constitute harassment. Third, the definition does not provide an adequate 

mechanism to address activities intentionally directed at individual or groups of marine mammals that could have biologically significant impacts. H.R. 1835 and the 

Administration’s MMPA reauthorization bill both propose very similar revisions to 

the current definition that would address each of these concerns. 

Inappropriate Two–Tiered Standard: The current definition of harassment impedes NOAA’s ability to adequately enforce the MMPA’s take provisions. As the definition is currently written, only those acts involving ‘‘pursuit, torment, or annoyance,’’ terms that are undefined in the MMPA, can be addressed. Second, the agency 

89

must prove that the act has the potential either to injure or disturb a marine mammal. Thus, the current definition contains a difficult two-tiered standard that the 

agency must meet before it can prosecute anyone who takes a marine mammal by 

harassment. As a result, NOAA agrees with the need to eliminate the phrase ‘‘pursuit, torment, or annoyance’’ from the harassment definition. 

Overly Broad: The current definition of harassment is both broad and ambiguous 

and, therefore, it fails to create a clear threshold for acts that do and do not constitute harassment. As a result, it is difficult for the agency to prioritize its resources to deal with the types of harassment that have the most negative effects 

on marine mammals. We are also concerned that the existing definition could result 

in unnecessary administrative burdens on the regulated community. One could 

argue, for instance, that any activity has the potential to disturb a marine mammal 

by causing disruption of behavioral patterns, from humans walking along a pier 

near a group of sea lions causing them to stop feeding and raise their heads, to driving a ship that causes a wake that dolphins choose to swim in. As interpreted by 

some courts, the current definition does not distinguish biologically significant, 

harmful events from activities that result in de minimis impacts on marine mammals. 

The lack of a clear threshold for harassment in the definition blurs the distinction 

between those activities that cause insignificant impacts and those that cause truly 

harmful impacts to marine mammals. This has negative consequences on marine 

mammals, NOAA, and the regulated community. First, activities that result in 

meaningful biological disturbance to marine mammals do not receive the degree of 

attention that they warrant. Second, NOAA Fisheries must devote its already limited resources to addressing activities and issues that result in biologically insignificant impacts on marine mammals. Third, the lack of clarity in the definition imposes unnecessary regulatory burdens on the regulated community, who are forced 

to apply for permits for often harmless activities to prevent potential legal consequences. NOAA supports the manner in which H.R. 1835 clarifies the definition 

of harassment to focus the agency and the regulated community on types of harassment that result in meaningful biological disturbance to marine mammals, rather 

than those acts that are not likely to have biologically significant impacts on marine 

mammals. 

Lack of Emphasis on Directed Impacts: NOAA supports the third tier of the harassment definition in H.R. 1835. This provision makes it explicit that activities that 

are likely to disturb marine mammals that are directed at individual or groups of 

marine mammals, such as closely approaching, touching, or swimming with dolphins in the wild, are considered harassment. Members of the public and commercial operators who intentionally interact with wild marine mammals either by boat, 

in the water, or on land disturb the natural behavior of the animals. They also do 

a great disservice to these animals over time by habituating them to humans and 

vessels. In addition, humans who attempt to closely approach, chase, swim with, or 

touch wild marine mammals place themselves at risk since wild animals are unpredictable and can inflict serious injury if threatened or afraid. 

Overall, NOAA feels the proposed definition of harassment contained in 

H.R. 1835 will apply a clearer standard of harassment to the entire regulatory community and result in more meaningful protections for marine mammals. Additionally, the proposed definition conceptually mirrors recommendations by the National 

Research Council (NRC) for regulations that are based on the potential for a biologically significant impact on marine mammals. In 2000, NRC pointed out flaws 

in the current definition of harassment, contending that since science is improving 

in terms of its ability to distinguish between activities that have significant negative 

effects and those that have insignificant effects on marine mammals, the harassment definition should be amended to reflect this. The virtually identical harassment definitions contained in the Administration’s MMPA bill and H.R. 1835 will 

both achieve this goal of focusing on activities that will result or could result in significant biological impacts on marine mammals. 

Exemption of Actions Necessary for National Defense 

H.R. 1835 would allow the Secretary of Defense, after consulting with the Secretaries of Commerce and the Interior, to exempt any action or category of actions undertaken by the Department of Defense (DOD) from compliance with any provision 

of the MMPA if it is determined to be necessary for national defense. These exemptions would be granted for up to two years, with additional two-year exemptions 

possible after further consultation between the Secretaries. While such a provision 

could result in reduced protections for marine mammals during times of heightened 

national security, such a change to the MMPA would be in line with exemptions to 

90

protections for endangered and threatened species under the ESA for national security purposes. 

Incidental Taking of Marine Mammals in Military Readiness Activity 

H.R. 1835 would amend several parts of the current legislative requirements that 

authorize incidental take (section 101(a)(5) of the MMPA). Incidental takes are 

those that are unintentional and may occur during otherwise lawful activities. 

The MMPA established a moratorium on the taking of marine mammals in U.S. 

waters by any person, and by those subject to U.S. jurisdiction on the high seas. 

In 1981, Congress amended the MMPA to allow ‘‘small take’’ authorizations for otherwise lawful activities. Under the present scheme, NOAA Fisheries will authorize 

the takes of small numbers of marine mammals if the takings will have no more 

than a negligible impact on those marine mammal species or stocks, and not have 

an unmitigable adverse impact on subsistence harvests of these species. Through 

regulation, NOAA Fisheries has defined ‘‘negligible impact’’ as ‘‘an impact resulting 

from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates 

of recruitment or survival.’’

In 1986, Congress amended both the MMPA, under the small take program, and 

the Endangered Species Act to authorize takings of depleted (and endangered or 

threatened) marine mammals, provided that the taking (lethal, injurious, or harassment) had a negligible impact on small numbers of marine mammals. 

H.R. 1835 would delete the ‘‘small numbers’’ standard in Section 101(a)(5) of the 

MMPA and would no longer require that activities authorized under this section be 

limited to a ‘‘specified geographic region.’’ These proposed amendments do not 

change the applicant’s requirement of having to show that their activities are having a negligible impact on the marine mammal species and populations. Additionally, they will have to demonstrate that their activities will not have an unmitigable 

adverse impact on the availability of such species or stocks for subsistence uses pursuant to the MMPA. These analyses are the key elements to maintaining the health 

of marine mammal species and are the premise for small take authorizations under 

the MMPA. Applicants seeking small take authorizations for their activities will 

still have to abide by all requirements of the Endangered Species Act, the National 

Environmental Policy Act, and the Administrative Procedure Act, where they apply. 

Thus, to make the requisite negligible impact determination and to comply with 

other environmental laws, NOAA Fisheries would still have to know what activities 

would be taking place, as well as when and where they would occur under the language proposed by H.R. 1835. These small take applications are currently evaluated 

based on the biological significance of the effect that their actions would have on 

marine mammals. This will not change under the amendments proposed in 

H.R. 1835, and NOAA does not believe that protection of marine mammals will be 

decreased under this bill. 

CONCLUSION 

I hope to have the opportunity to work with the Committee to resolve outstanding 

issues in this bill and to work to improve areas in need of attention in both the 

MMPA and ESA. I look forward to working with Members of the Committee, your 

staffs, and other interested members of the public to meet the challenges that we 

all face in conserving and protecting marine mammals and endangered and threatened species. 

This concludes my testimony. Thank you again for the opportunity to testify before your Subcommittee today. I would be happy to answer any questions you may 

have about my testimony or related issues. 

The CHAIRMAN. Thank you. 

Mr. Manson, you heard extensive testimony earlier on some of 

the problems that the military is currently having. The idea under 

this legislation is to codify a lot of the administrative things that 

you and your predecessor attempted to do to allow the military to 

work within the Endangered Species Act. But a question has come 

up during the previous testimony. 

Is it your understanding that, under this legislation, would the 

military in any way be exempt from the Endangered Species Act? 

Would they be able to kill endangered species and destroy habitat 

under this bill? 

91

Mr. MANSON. There is nothing in this legislation that would exempt the military from the Endangered Species Act. 

The CHAIRMAN. So it is your understanding, from your years of 

experience, both at the State and Federal level, that one of the purposes of the military would continue to be to manage their lands 

in a way that protects endangered species? 

Mr. MANSON. That would be my understanding. 

The CHAIRMAN. Can you also help to clarify what exactly is going 

on right now—and we had extensive testimony dealing with Camp 

Pendleton, and I know you’re familiar with Camp Pendleton—

about the restrictions that are being placed on their ability to train 

now and the efforts that they’re making to protect the species on 

that particular base? 

Mr. MANSON. Well, I think that General Bowdon gave a far superior description of that than I could. There were a lot of numbers 

tossed around. I heard 1 percent in one case and some other numbers about the amount of critical habitat. 

I think that it’s important to note, as I think General Bowdon 

did, that he was talking about the 57 percent as potential critical 

habitat. There are a number of endangered species and overlapping 

potential critical habitat designations at Camp Pendleton, so there 

is more than one potential designation out there. In fact, there are 

at least two that are pending right now, in addition to the ones 

that have been previously made. 

The CHAIRMAN. Let me ask you on a little bit different topic. A 

lot of questions keep coming up about invoking the God Squad and 

having them come in, as well as the military just asking for a national security exemption. 

If a God squad request was made and they came in and exempted an activity that the military is carrying out, for a specific endangered species, does that not give them an exemption from the Endangered Species Act in that case? 

Mr. MANSON. Well, for a particular species, and with respect to 

a particular activity, a particular project, it would. 

I should note that, in the view of many, the Endangered Species 

Committee, also known as the ‘‘God Squad’’, is a very cumbersome 

procedure. It takes quite a bit of time and has only been invoked 

perhaps three times in the last 30 years because of the cumbersome nature of that procedure. 

The CHAIRMAN. Well, to follow along with some of the line of 

questioning of my colleagues, in the case of Camp Pendleton, 18 

separate endangered species, hundreds if not thousands of different 

activities, they would have to either request a national security exemption for each of those activities, or invoke the ‘‘God Squad’’ to 

come in on each and every one of those cases, instead of just going 

through what you termed a holistic approach of adopting an 

INRMP that manages endangered species on the entire property. 

It would seem to me that, if you really do care about protecting 

endangered species, that that would be a better approach than 

going along some path of just asking for exemptions from the Endangered Species Act. 

Mr. MANSON. Well, it certainly is my view that the INRMP process is a superior process, for a couple of reasons. One, it addresses 

multiple species instead of just individual species; two, it requires 

92

active management of the species and the habitat; three, it’s a 

process that involves not only the Fish and Wildlife Service but the 

relevant State wildlife agencies. So, to that extent, you get a lot of 

input and a lot of expertise about the management of the species 

and the habitat. 

The bottom line about the INRMP process is that it does something for the conservation of the species. It’s not an exemption. It 

keeps the military actively involved in the management of species. 

It keeps the Fish and Wildlife Service and the State actively involved in the management of species on a basis that is well-recognized in the conservation community. 

The CHAIRMAN. I appreciate your testimony. Unfortunately, my 

time has expired. 

Mrs. Christensen. 

Mrs. CHRISTENSEN. Thank you, Mr. Chairman. I appreciate both 

of you for your patience and the waiting throughout the previous 

panel and our questions. 

I would like to ask a question that was asked of the previous 

panel, because I don’t think it’s ever been answered, and that is 

the Administration’s position on H.r. 1835. Judge Manson, are you 

in a position to speak on behalf of the Administration? Are you representing the Administration on this bill? 

Mr. MANSON. Well, I have testified in support of the INRMP 

process. I’m not aware that the Administration has a position on 

the overall bill. 

Mrs. CHRISTENSEN. OK. The bill’s provisions would be extended 

to other Federal agencies. This question would go to both you and 

Dr. Hogarth. Are both of you supportive of that? 

Mr. MANSON. The INRMP process? 

Mrs. CHRISTENSEN. No, the changes, that 2(a) would apply to all 

Federal agencies. Are you in support of that? 

Mr. MANSON. As it’s written, it appears that that would apply to 

all Federal agencies, yes. 

Mrs. CHRISTENSEN. Is the Department of Interior in support of 

that? 

Mr. MANSON. The Administration, as far as I know, doesn’t have 

a position on that provision of the bill. 

Mrs. CHRISTENSEN. We are having a bit of difficulty. Tomorrow, 

I believe, is the day we’re going to be voting on this bill and we’re 

apparently going to be doing so without a clear position from the 

Administration. 

Dr. Hogarth, do you have any clarification on that? 

Dr. HOGARTH. For the Marine Mammal Protection Act, as I testified, we are very supportive. We think it is very close to what the—

you know, close to it. But the Administration itself has not come 

out point-blank, but I think if you look at what we have submitted 

as an administration bill, and the nature of H.R. 1835, you’ll see 

they are very similar. Effectively, they seem to be the same. 

As far as the Endangered Species Act, there is no administration 

position, and we also have concerns we have addressed that we 

would think need to be discussed with the Committee. 

Mrs. CHRISTENSEN. Dr. Hogarth, on page 4 of your testimony you 

talked about H.R. 1835 deleting small numbers and that it would 

have—I think you’re saying—I guess my question is, are you sayVerDate 0ct 09 2002 10:39 Nov 04, 2003 Jkt 087420 PO 00000 Frm 00096 Fmt 6633 Sfmt 6602 J:\DOCS\86854.TXT HRESOUR1 PsN: KATHY
93

ing there that the changes in H.R. 1835 will not undermine the 

Endangered Species Act? 

Dr. HOGARTH. That’s correct. We feel like we have to look at negligible impact—I mean the MMPA, not the Endangered Species 

Act. In the MMPA, we have to look at— 

Mrs. CHRISTENSEN. For marine mammals. 

Dr. HOGARTH. Right. We have to look at the negligible impact, 

and small numbers would be something you would look at. It depends. On California sea lions, a small number would be a large 

number. If you look at the Hawaii monk seals or right whales, 

small numbers would be extremely small. So the evaluation we 

have to do is the negligible impact to the population. 

Mrs. CHRISTENSEN. I may have a follow up to that later on. 

Mr. Manson, I have one other question. The military, in their responses, seemed to—what I gleaned from that was that the processes that were in place worked, except for the litigation that followed in many cases, and that’s what their concern was about. In 

reading your testimony, I tried to get through it and really didn’t 

read it through completely. It seemed that you were saying that 

the litigation arose largely over the lack of resources that the Fish 

and Wildlife Service had and their inability to complete their studies and their reports on a timely basis. 

If that’s the case, is that the cause of the litigation, rather than 

some unclarity in the law that this bill purports to try to clear up? 

Mr. MANSON. That is certainly a major issue with the designation of critical habitat. I think you also heard from the military 

witnesses that there are challenges, there are so-called merits challenges to our critical habitat designations as well, where people 

don’t like the nature or scope of our designations. That is also a 

significant issue in terms of litigation. 

Mrs. CHRISTENSEN. I think, by and large, they all testified that 

they had a very good working relationship with Fish and Wildlife 

and— 

Mr. MANSON. That’s true. 

Mrs. CHRISTENSEN. —and that they worked very collaboratively. 

Just a follow up to Dr. Hogarth. You also said, to the extent that 

the Navy and other action agencies can plan sufficiently far in advance of the activities and provide us with adequate time to work 

them at the earliest possible stages, the implications of the permit 

process should be minor. You said this at last year’s House Armed 

Services Committee hearing on environmental issues. 

Again, is it an issue of the timeliness of their requests in the permitting process, rather than problems in how the law is worded 

that is creating the problem? That’s what that seems to suggest to 

me, that it’s the time to complete the processes. 

Dr. HOGARTH. Thank you. I think there are a couple of things 

that we have. There is a resource issue within the agency. We have 

about two people to do all this work. But I think there are some 

problems that have arisen with lawsuits, such as small numbers 

and things like that, which we were trying to—that we’ve seen 

since then, which H.R. 1835 addresses. So I think there’s a resource issue within the agency, but there is also some clarification 

that you made to the MMPA which I think will help alleviate some 

of the other problems. 

94

Mrs. CHRISTENSEN. We haven’t made it yet. 

Thank you, Mr. Chairman. 

The CHAIRMAN. The gentlelady’s time has expired. 

Mr. Gilchrest. 

Mr. GILCHREST. Thank you, Mr. Chairman. 

Judge Manson and Dr. Hogarth, welcome to the hearing room. 

You probably don’t testify very often on Capital Hill, so this is a 

wonderful opportunity to meet all of us. 

What we are trying to do here today—and Judge Manson, you 

have testified to INRMPs in the past. I think INRMPs are a positive and more comprehensive approach to understanding the living 

resources. To some extent, we want to make sure that the hearing 

we have today is appropriate to the problems that DOD faces and 

what researchers have difficulties with as well as far as marine 

mammals are concerned. We want to make sure that this bill, as 

attached to the DOD authorization, does not go beyond what is necessary. We can do that in other avenues. We certainly want to restore the vigorous capacity for the necessary training on military 

bases around the country, and we also, in so doing—we’ve heard 

the word ‘‘balance’’ here on a number of occasions—we certainly 

want to balance that with the ability to maintain and restore the 

prodigious bounty of God’s creation without further degradation or 

disruption or the loss of habitat upon which we, as people, ultimately depend. 

So I have three specific questions. I think the first will go to Dr. 

Hogarth, dealing with the language—I think we’ll call it title or 

level—it used to be Level B harassment, and now I guess it’s Level 

2 harassment—the language that’s in the legislation now and the 

language that was, I think, recommended by the NRC. 

Dr. Hogarth, I would like some clarification why or if you prefer 

the language that’s in the legislation now, why do you think that’s 

more clear and more definitive as far as the broad protection to 

marine mammals is concerned? 

We’ve heard from scientists on the number of definitions for harassment, and we understand the problems that are out there, and 

so the language in the legislation deals with the term ‘‘significant’’, 

abandoned or significant. The language that was recommended by 

NRC—and I’ll read it— ‘‘...has the potential to disturb a marine 

mammal or marine mammal stock in the wild by causing meaningful disruption of biologically significant activities, including, but not 

limited to, migration, breeding, care of the young...’’ and so on. 

That was the language recommended by NRC. 

The language that is in the bill, which I’m going to ask whether 

you prefer that and why, takes out ‘‘meaningful disruption of biologically significant activities’’ and just includes ‘‘abandoned or significant’’. 

Could you comment on that, Dr. Hogarth? 

Dr. HOGARTH. I think what we tried to look at was to make sure 

we—I’m sorry—that we looked at the NRC definition very clearly. 

It does not have a Level A. NRC goes strictly to a Level B for the 

potential to disturb. 

We looked at it and added actions directed at a marine mammal, 

and that’s not NRC. And we added actions that affect the marine 

mammal but at a significant level, but we didn’t use the biological 

95

because we were concerned about the term biological to avoid problems that were limited only to a strict definition of biology. You 

know, that does seem overly broad, and it may not include the ecological factors or other factors that may be determined, such as 

speed boats. Something that would continue to run up out of the 

rookery, things like that, would that be biological or would that be 

dislocation, would that be disturbance? So we felt like— 

Mr. GILCHREST. You’re saying that ‘‘meaningful disruption of biological activities’’ is more vague? 

Dr. HOGARTH. We felt that the destruction of natural but not 

having the meaningful, that we took a term out that we would end 

up arguing in court. We said the disruption of natural, biological 

patterns, including but not limited to, so we had some of the same 

definitions but we just took out the word ‘‘meaningful’’ because, 

again, you get into court—like small numbers, what is small numbers, versus what is meaningful, you know, to the different populations. So we felt like it would be much easier for us in court than 

to have the ‘‘meaningful’’. 

Mr. GILCHREST. My time is up. Maybe we’ll have a second round. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Mr. Udall. 

Mr. TOM UDALL. Thank you, Mr. Chairman. 

First of all, Mr. Manson, it seemed to me you were taking a position that—Well, let me start here. First of all, why no position on 

the bill, Judge Manson? 

Mr. MANSON. I’m not in charge of developing the entire administration’s position. I can’t answer that for you. The process is larger 

than me. 

Mr. TOM UDALL. Don’t you think it’s important that the Administration have a position on something this sweeping? 

Mr. MANSON. Well, certainly the Administration likes to have positions on important bills, but the process, as I said, is beyond me, 

so I don’t have an answer to that particular question. 

Mr. TOM UDALL. Have you alerted others in the Department that 

this is something significant and they know about it, or is everybody too busy to take a position, I guess? 

Mr. MANSON. I don’t know that that’s the issue. I know that the 

bill has been with us only a short period of time, so... 

Mr. TOM UDALL. So isn’t it fair to say that when a significant 

issue comes up, if you’ve had something for a week, you would 

jump on it and you would take a position if you think it’s important. Your agency is in the business of administering these laws. 

You have the expertise. If this is important—you know, a week is 

a significant amount of time for somebody to look at and be able 

to take a position. 

Can you tell me how soon anybody is going to take a position on 

this? 

Mr. MANSON. No, sir, I’m afraid I can’t. In fact, the development 

of administration positions is even, as I understand the process, beyond the Department. 

Mr. TOM UDALL. How about Dr. Hogarth. Why no position on 

this? 

Dr. HOGARTH. This bill affects both the Secretary of Interior and 

Secretary of Commerce particularly, and there is some questions 

96

that I think have to be addressed between the two of us, and then 

there were questions that I think we have for clarification in the 

bill. So a week in government, to me, is not a very long time for 

the time I’ve worked here. I think it’s going to take a little while 

to do that, and then to go through the approval process that we 

have to go through. 

We have discussed it. I don’t think it’s a matter of that—I don’t 

know that we knew your timeframe was tomorrow. I didn’t know 

that. I can’t answer the question totally as to why, but I know it’s 

a major bill and it’s one that affects two agencies. They would have 

to both go through the process of getting the Administration position. 

Mr. TOM UDALL. Both of you—Were you both here during the 

testimony of the military panel? 

Mr. MANSON. I was. 

Dr. HOGARTH. You were in the room the whole time? 

Mr. MANSON. Yes. 

Dr. HOGARTH. Yeah. 

Mr. TOM UDALL. OK. Well, you heard me ask the question about 

the language ‘‘insofar as practical and consistent with their primary purposes’’, where I quoted the language that was being inserted into the Endangered Species Act, making it the policy of the 

Congress, that ‘‘insofar as practical and consistent with their primary purposes’’. 

Don’t you think that’s a significant change in the policy of the 

Congress on the Endangered Species Act? Or do you disagree with 

the position I outlined there? 

Mr. MANSON. Well, without ascribing a value one way or another 

to it, just on their face, the words are significant. Yes, I would 

agree with that. 

Mr. TOM UDALL. Dr. Hogarth? 

Dr. HOGARTH. Yes, sir, I think they are, because it gets into 

whether section 7 and our jeopardy still applies, whether it applies 

only to DOD but all Federal agencies. Because of all this, it’s significant and there are some questions we have there, yes. 

Mr. TOM UDALL. And that’s the part your agency and the Department of Commerce isn’t taking a position on? 

Dr. HOGARTH. It doesn’t mean we won’t take a position. We just 

haven’t had the opportunity yet to get that position clear, you 

know, cleared. 

Mr. TOM UDALL. Let me just say that I think it would really help 

this Committee if your agencies, working through OMB and whatever other processes actually came out and spoke out before the 

markup as to what your position is on this bill, especially these 

crucial issues like section 2(a) and the consultation and other questions that have been raised here, I hope you will take that back to 

your respective agencies and try to urge them to move along a little 

more quickly. 

Thank you very much, Mr. Chairman. 

Mr. GIBBONS. [Presiding.] Thank you very much, Mr. Udall. I 

certainly hope Mr. Udall isn’t implying that if the Administration 

supports this bill, he will, too. 

[Laughter.] 

97

Mr. TOM UDALL. No, not in any way. I want to know what the 

Administration’s position is. I’m not going to give a blank check 

there, Mr. Gibbons. But I am happy to hear their position. They’ve 

got the expertise. 

My real point was, don’t you think, in something this significant, 

where these agencies have a huge amount of expertise, that they 

could weigh in on this kind of thing. I mean, they’ve got lawyers 

over there. This is a provision in the law that was in 1966. It was 

clearly litigated, there’s legislative history. I mean, there’s an enormous amount that has gone on here. I would just hope they would 

shed a little light with that great expertise you have at the Department of Commerce and Department of Interior. 

Thank you very much, and thank you for the courtesy of letting 

me go a little longer here. 

Mr. GIBBONS. Mr. Walden. 

Mr. WALDEN. Thank you, Mr. Chairman. 

I was somewhat tongue-in-cheek intrigued by my colleague’s 

comment about 7 days being ample time for several agencies and 

the Administration to take a position on a bill this complicated, 

when last week I think they had 6 days to review our forest health 

bill and we heard nothing but how it was being rushed through 

with very little time to be able to be considered by members of this 

august committee. So I just put that out there to think about. 

Judge Manson, what’s the length of time for the military to receive a decision on applications seeking to use critical habitat for 

military exercises? How long does that take, in your experience? 

Mr. MANSON. Well, for example, if they want to use critical 

habitat for an exercise, then they would have to— 

Mr. WALDEN. From start to finish. 

Mr. MANSON. They would have to undergo consultation with the 

Fish and Wildlife Service under section 7 of the Act. There are 

some statutory deadlines that run about 135 days in theory. In 

practice, depending upon the circumstances, it could be longer than 

that, and depending upon the circumstances, it could be significantly longer. 

Mr. WALDEN. Do they have to go through a full NEPA process? 

Mr. MANSON. No. Well, it depends. I’ll put it that way. The section 7 process itself, does not require an additional NEPA process. 

It may be that something they are doing will require a NEPA process, independent of the section 7 process. 

Mr. WALDEN. OK. So they go through the application process. 

How many days again does it take, 130 you said? 

Mr. MANSON. A hundred-and-thirty-five in statutory theory. 

Mr. WALDEN. OK. Now let’s get to reality. Statutory theory. Then 

people have the right to appeal after that? 

Mr. MANSON. Well, no. Certainly there is the possibility that 

someone could find a way to bring a suit about a particular activity 

that has gone on, but there is no direct appeal by a citizen. 

Mr. WALDEN. But litigation could follow? 

Mr. MANSON. There’s a possibility that litigation could— 

Mr. WALDEN. And does that happen very often? 

Mr. MANSON. That happens occasionally, yes. 

Mr. WALDEN. What kind of time line then does that entail? 

98

Mr. MANSON. There is no way to estimate the average length of 

time that litigation over something that the military might do 

would take. 

Mr. WALDEN. So a minimum of 135 days, plus the potential for 

litigation, which could go on for a very long time. 

It has been stated that the proposed changes to the definition of 

‘‘harassment’’ will help the agencies better enforce the MMPA. Can 

you give us some examples, either one of you, of how that might 

work? 

Dr. HOGARTH. I think, from the standpoint—right now, first of 

all, you’ve got to prove that the act is one of pursuit, torment and 

annoyance. The problem we’re having with the attorneys is that 

they’re losing most of these cases, because you’ve got to prove the 

intent first. 

Mr. WALDEN. Losing most of the cases of harassment— 

Dr. HOGARTH. Right, because the vagueness of having to prove 

whether a person had the intent or not, so that’s the first thing. 

You’ve got to prove that the act was one of pursuit, torment and 

annoyance, and then you have to have the intent of whoever did 

it. 

Then you have to prove that the act had the potential to injure 

or disturb the marine mammal, which is somewhat easier to do. 

But first you have to go through whether the act is one of—you 

know. So we’ve been trying to—The MMPA does not identify or 

have any definitions or identify the terms ‘‘pursuit, torment or annoyance.’’ 

Mr. WALDEN. Are you doing research on the noise issue involving 

mammals? 

Dr. HOGARTH. We are working on the noise issue. 

Mr. WALDEN. Are there any findings yet? 

Dr. HOGARTH. Well, we’re in court on one, so I can’t say much 

about the LFS sonar, yeah. But we continue to work on noise 

issues in marine mammals. There is work being funded, some at 

the University of Hawaii and other places, dealing with noise, yes, 

sir. Low level does not appear to be a problem. 

Mr. WALDEN. In terms of the MMPA, is the intent the first 

threshold you have to meet in order to fall under the Act of actually harassing a mammal? Is it the intent, or is it the dislocation 

of their typical— 

Dr. HOGARTH. That’s why we agree with the definition, because 

now it says if you actually—you know, you don’t have to prove the 

intent. If it’s disturbing it, if you can actually show there’s a difference in the behavior of the mammal, we feel like the new definition gets into this. It says disturbs or is likely to disturb the marine mammal by cause or disruption of their behavior. 

Some of the old definitions, for example, if a dolphin came up in 

the wake of a boat, would that be disturbing the dolphin? That’s 

one of the issues that came up. 

Mr. WALDEN. I guess that’s where I was headed with this. Does 

this definition strictly apply to the military’s involvement— 

Dr. HOGARTH. No. 

Mr. WALDEN. —and if not, then why isn’t commercial fishing, 

commercial transportation in and out of the harbors, tell me that’s 

not having a tremendous effect on habitat. 

99

Dr. HOGARTH. We have take reduction teams looking at marine 

mammals for fishing efforts. We have a team set up now to look 

at right whales, look at ship traffic. But there are many things 

we’re doing under marine mammals. 

You know, swimming with dolphins is a big issue, for example. 

That’s a big issue in Florida. A lot of people call in. But if you go 

in the water and a dolphin swims by, is that harassment? That’s 

the type of thing—Now we’re saying to disturb the dolphin, the 

new definition. You have to show that it was disturbed and a potential for injury. 

Mr. WALDEN. If I could just clarify briefly one other question that 

I had. 

You made the statement, I believe, that there are two people 

within your agency to do all this work. Is that all the military 

work? 

Dr. HOGARTH. That’s correct. 

Mr. WALDEN. And you have—How many people are in your 

agency? 

Dr. HOGARTH. In our agency, overall, there is about 2,600. But 

in protected resources, looking at incidental take, and the military, 

yes. 

Mr. WALDEN. Do you feel that’s an adequate allocation of resources? 

Dr. HOGARTH. No, sir. Well, it’s what we have in our budget to 

deal with. There are two people for marine mammal, you know— 

Mr. WALDEN. Have you requested others in your budget process? 

I’m sorry, I have run out of time. Thank you. 

Dr. HOGARTH. Yeah, we continue to look at the amount of—the 

President’s budget, you know, we support. But there are a lot of 

issues that you have to put priorities on, no doubt about it. 

Mr. GIBBONS. Thank you, Mr. Walden. 

Mr. Grijalva. 

Mr. GRIJALVA. Thank you, Mr. Chairman. 

Let me follow up with Dr. Hogarth, if I may, on the point that 

was being made about the two staff, the full-time employees on 

staff to review Navy permitting requests under the Act. I think the 

question was, would increased staffing help expedite the process, 

and would that address some of the Navy’s concerns that we heard 

about today? 

Dr. HOGARTH. First of all, I think, you know, we have two people 

doing marine mammal assessments. That’s what I was addressing. 

You know, it would speed up the timing. We are working with the 

military quite a bit, particularly the Navy, on looking at programmatic EISs and programmatic section 7’s and all, because we 

think if we can get to this issue, that we could get them ahead of 

time and do a programmatic or help the process. 

Additional manpower would definitely help us, and we are in the 

process now, working with the Navy, on an MOU to improve the 

processing and how we can get it done quicker. Sometimes it 

takes—I think the least we’ve had on some of the issues, it has 

been probably six to 9 months. It depends on the issue that’s involved. 

Mr. GRIJALVA. So the steps you indicated have been taken at this 

point, the planning— 

100

Dr. HOGARTH. That’s correct. 

Mr. GRIJALVA. —the MOUs. And from your experience, those increased resources—let’s say increased resources are available for 

additional staffing, which you earlier indicated would be important, 

that would initiate more advanced planning and it would foster a 

more efficient, if not more rapid permit application review process, 

would it not? 

Dr. HOGARTH. It would, yeah. Yeah, it would, yes, sir. 

Mr. GRIJALVA. Could you surmise for me or evaluate for me from 

the discussion today how much is a problem of process and how 

much is a problem of definition? 

Dr. HOGARTH. Well, as you heard today, I don’t think you 

heard—Most of the testimony I heard today was directed toward 

the encroachment issue, which is not the issue we addressed, the 

management plans dealing with the Department of Interior. 

The issue that we have so far with the Navy has been the court 

case on small numbers and things like that, that we’ve been trying 

to work through. But I think most of our problems with the Navy, 

you know, marine mammals, has been the court system and the 

identification of some of the terms and how they were interpreted. 

Mr. GRIJALVA. But process is still an issue? 

Dr. HOGARTH. Process is still an issue, to make sure you get this 

done timely, yes, sir. 

Mr. GRIJALVA. Two more for both the witnesses, if I may, either/

or. 

How many times has the Secretary of Defense used the provision 

that’s already in there since 1998, for activities that fall under the 

scope of your agency, the provision that deals with the Executive 

branch and suspending administrative actions pending consultation 

between the Secretary of Defense and the head of the action agency, in this instance you two individuals? 

Mr. MANSON. I believe Mr. Cohen testified earlier today that that 

had never been used. I concur with his testimony. 

Mr. GRIJALVA. So if it’s never been used, I would assume there 

has never been a denial, at least specifically with the Navy, correct? 

Dr. HOGARTH. That’s correct. Remember, the MMPA does not 

have the same exemption for national security that is the ESA. The 

MMPA does not— 

Mr. GRIJALVA. So specifically for an issue of incidental harassment, the Navy would come to the Department of Interior and to 

your agency. That request has never been made, or has it ever 

been denied? 

Dr. HOGARTH. It’s never been made. 

Mr. GRIJALVA. The Public Law does apply to all agencies, correct, 

P.L. 105-85? 

Dr. HOGARTH. I will have to get back to you. I’m not sure of that. 

Mr. GRIJALVA. Thank you. 

Thank you, Mr. Chairman. 

Mr. GIBBONS. Mr. Cole. 

Mr. COLE. Thank you very much, Mr. Chairman, and thank you, 

gentlemen. You have been here a long time and thank you for your 

patience and your indulgence. 

101

A couple of general questions, frankly, directed to both of you. 

And you addressed this, Judge Manson, in your initial testimony, 

but I think it’s an important point. How would you rate the Department of Defense in terms of their efforts to comply with the 

Endangered Species Act and the various environmental regulations 

and obligations that they have? 

Mr. MANSON. With respect to the Endangered Species Act, which 

we deal with, they have been very good. They have been outstanding stewards of habitat and species. 

Dr. HOGARTH. I have been working with the Navy primarily, and 

I worked with them when I was in the Southeast Region, and dealt 

with them on Vieques, which they did everything possible that we 

could ask for. And since I’ve been here as Assistant Administrator 

for NOAA, we have had an excellent working relationship. Like I 

said, the MOUs, and we have regular meetings with them. So I 

think it’s a pretty good working relationship. 

Mr. COLE. Do either of you have any concern that, if this legislation were enacted, that that attitude would change or that they 

might be less cooperative or less diligent in fulfilling their obligations under the law? 

Mr. MANSON. I have no way to accurately predict that, but I have 

no reason to believe that that would change. Their stewardship has 

remained at a high level over a number of years, through a lot of 

different regulatory schemes. So I would certainly expect they 

would continue to do a good job. 

Dr. HOGARTH. I agree. I think the MMPA changes would only 

clarify things and get them to work with us maybe even more because of some of the ambiguities taken out. The ESA concerns we 

have to clarify that, whether they would have to work with us 

again or not is I think the issue we would have. 

Mr. COLE. Again, to both of you, we have had a concern raised—

and I think it’s a legitimate question—that we regularly say, if the 

situation is so good, cooperation has been high, people have been 

doing their best on both sides of this divide to do the right thing, 

why—and again, you touched on this a little bit in your 

testimony—but why do you think these changes would be merited? 

Mr. MANSON. Well, from my point of view, two reasons. One is, 

there is the threat of litigation over some of the things that have 

been done on the basis of mere policy between the Department of 

the Interior and the Department of Defense. 

But the second, more fundamental and more compelling reason 

is that we believe these things that we’ve done on a policy basis, 

on an administrative basis, represent good public policy choices. 

And if they are good public policy choices for conservation, then 

they ought to be codified. They ought to be given the sanction of 

this Congress. 

Mr. COLE. A couple more questions, if I may, Mr. Chairman. It 

will just take a second. 

Mr. Udall raised a good point here about whether or not we have 

an administration position on such an important piece of legislation. Hopefully we will have one before the process is completed. 

First let me ask this: 

To your knowledge, did the authors of the legislation work with 

people in the Executive branch and some of the experts that you 

102

have there, obviously with the enormous experience you do have in 

dealing with these kind of issues, when they were drafting their 

legislation? 

Mr. MANSON. I can’t say that I know that. I came back from an 

out of town trip and found this legislation and was told I was going 

to testify, so that’s what I know about it. 

Mr. COLE. OK. 

Dr. HOGARTH. I do think some of our people may have met with 

some of the staff members before it was completely drafted. I was 

not there. 

Mr. COLE. Do either of you have any reason to believe that the 

Administration at this point is going to take a position against the 

legislation question? 

Mr. MANSON. I can’t say. I don’t know. 

Dr. HOGARTH. I can’t say. 

Mr. COLE. I yield back my time. Thank you, Mr. Chairman. 

Again, I very much appreciate you staying this late with us. Thank 

you. 

Mr. GIBBONS. Thank you very much, Mr. Cole. 

Gentlemen, I also appreciate the great amount of time you spent 

with this Committee, trying to help us better understand. 

I have been advised by staff, in answer to Mr. Grijalva’s question, that 105-85 only applies to DOD and DOI. 

Let me ask just one question of both of you, sort of a generic 

question, and then we will allow you to exit. My question would be, 

looking at the language that’s in this bill, is that language helpful 

to your departments with regard to activities, processes, litigation, 

et cetera? Would the bill be helpful to you? 

Mr. MANSON. The language on INRMPs and critical habitat designation would certainly be helpful to the Department of the Interior. 

Mr. GIBBONS. Dr. Hogarth? 

Dr. HOGARTH. I think the language on the Marine Mammal Protection Act would be helpful. We support it. Like I said, I do have 

some clarifying questions on the ESA portion. If the understanding 

is just critical habitat there it would be one thing, but with section 

7 and other things, there is a concern and we just don’t know. 

Mr. GIBBONS. Thank you, gentlemen. 

In view of the late hour that you’ve spent here, I’m going to allow 

each member to have one follow-on question, because these gentlemen have been here now since 2 o’clock. While each of you are able 

to get up and leave at your will and go do other things, they’ve 

been very patient and very dedicated. So, in order to expedite them 

and the next panel, I’m going to limit it to one question. 

Mr. Gilchrest. 

Mr. GILCHREST. One question with three parts? 

[Laughter.] 

I’ll do my best there. 

We do need to codify some of the INRMPs, and I think that’s the 

way we need to go. In pursuing the codification of that in statute, 

I certainly don’t want to reduce the effectiveness of the consultation that brought us to INRMPs by a variety of different Federal 

agencies working together. So I don’t want to begin separating that 

out with some of the language change. 

103

The question, I guess to both, would be Level 3. If we can say 

Level 3 harassment now in the language of 1835, would that help 

or hinder scientific research that now to some extent seems to be 

hindered at this point? In the legislation, if I can sneak this in 

while the Chairman is preoccupied, dealing with— 

Mr. GIBBONS. But I’m still listening, Mr. Gilchrest. 

Mr. GILCHREST. In the legislation dealing with page 6, incidental 

takes, dealing with specific geographical regions and dealing with 

specific small numbers, the question is, would scientists be less effective in trying to apply for research activities as a result of Level 

3 harassment, and in the letter of authorization or incidental harassment authorization, does that change at all that part dealing 

with geographical regions and dealing with small numbers? 

Dr. HOGARTH. First off, let’s take the second part about the small 

numbers and geographical range, we don’t think that affects it at 

all because, to make the evaluation we have to make, we still have 

to know the geographical area you’re working in. Small numbers 

take, when you look at the negligible impact, you would have to 

look at the population you’re dealing with and what the numbers 

were anyway to do the negligible impact. So we don’t think that affects it one way or the other. 

We would have probably put this in our bill if we had the lawsuit 

we just had, knowing that— 

Mr. GILCHREST. So, Dr. Hogarth, you feel that any act that is directed—this is the language under the text of the bill—‘‘any act 

that is directed toward a specific individual, group, or stock of marine mammals in the wild and that is likely to disturb the individual, group or stock...’’ especially any act directed toward a specific individual, that’s not going to hinder scientific research, the 

application for it? 

Dr. HOGARTH. Not in my opinion, it won’t. 

Mr. GIBBONS. Thank you, Mr. Gilchrest, for that very succinct 

line of questioning. I appreciate that. 

Mr. Udall. 

Mr. TOM UDALL. I will strive for the same, Mr. Chairman. I will 

say for the record that I’ve been here the whole time, too, except 

for a couple of minutes to visit with some constituents. 

Dr. Hogarth, I got from your answer about this definition of harassment and what the military was asking for, that you basically 

thought there wasn’t much difference, that the current law, what 

the military is asking for, what’s in this bill, H.R. 1835, there is 

not much difference. 

First, I just wanted to ask, it seems to me that what the military 

was asking for was something very narrow, to deal specifically with 

their training and readiness, and what we’re doing here is redefining harassment for all activities. Would you agree with that? So 

we’re taking a pretty big step, rather than just limiting it to military, from what the military came in and said they wanted. 

Dr. HOGARTH. I think this bill treats everyone the same, which 

we do not have a problem with. 

Mr. TOM UDALL. So you agree that it’s a redefinition that is very 

broad? 

Dr. HOGARTH. Right. 

104

Mr. TOM UDALL. Then the redefinition, when you redefine harassment, if you look at the current Act and the bill, H.R. 1835, it 

is talking about harassment to the point where ‘‘such behavior patterns are abandoned or significantly altered’’. 

Now, it seems to me that that language is much different than 

what’s in the current Endangered Species Act, that this is a global 

change. There are no definitions there. We don’t define abandoned. 

We don’t talk about what ‘‘significantly altered’’ means. These are 

really subject to a great deal of interpretation, wouldn’t you say? 

Dr. HOGARTH. First of all, the definition that’s in H.R. 1835 is 

the same definition in the Administration’s bill, so it’s the same 

one. What you’ve got is— 

Mr. TOM UDALL. I don’t believe so. 

Dr. HOGARTH. Except for Level 3. The Administration’s MMPA 

bill, it’s the same definition. 

Mr. TOM UDALL. My question goes to, isn’t the change from the 

current law under the Endangered Species Act—I mean, it has the 

‘‘potential to disturb a marine mammal or marine mammal stock 

in the wild by causing disruption of behavioral patterns, including 

but not limited to migration, surfacing, nursing, breeding, feeding, 

or sheltering...’’ 

This language here, it is any act that ‘‘disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by 

causing disruption of natural behavioral patterns, including but not 

limited to migration, surfacing, nursing, breeding, feeding, or sheltering to the point where such behavioral patterns are abandoned 

or significantly altered.’’ I mean, that is very significant language, 

wouldn’t you say? 

Dr. HOGARTH. Yeah, but if the current language says ‘‘has the 

potential’’, so first you have to determine—you know, this language 

is more direct and it’s easier to determine, if it’s likely to disturb 

a marine mammal, marine mammal stock in the wild, by causing 

natural behavioral patterns, including but not limited to. So if— 

Mr. TOM UDALL. Current law is much broader and more protective; you would agree with me? 

Dr. HOGARTH. Right, it’s much broader. 

Mr. TOM UDALL. The current law is much broader and more protective. 

Dr. HOGARTH. It may be—you make it say it’s broader and much 

more protective, but if you can’t make the court cases on it, it is 

not. So far we have not been able to make court cases on the definitions we have. That’s why we were trying to make them more specific and to take out some of what we considered potential, things 

like potential, and to add in significant and things like that, to try 

to make it easier for the attorneys and for the courts. 

Mr. TOM UDALL. Have the courts said to us, have the courts said 

to the government or to the Congress ‘‘we don’t like this definition 

and you should change it’’? 

Dr. HOGARTH. Well, we have lost, I think, the last three cases because of the—we have been unsuccessful due to not being able to 

really prove the point of what pursuit, torment and what the issues 

were. 

105

Mr. TOM UDALL. I’m not interested in winning or losing cases. 

I’m interested if the court said they think this definition is not a 

good definition and the Congress should revisit it. 

Dr. HOGARTH. But we are the ones trying to make—We are the 

ones taking action in court. We take a person to court based on the 

fact that we thought they were swimming with the dolphins or 

they had gone by with a jet ski or something too close to them and 

caused them or to alter. 

These cases have been thrown out of court because we cannot 

prove the intent of the people of what they were doing. 

Mr. TOM UDALL. Based on the definition alone? 

Dr. HOGARTH. Based most on—what the attorneys are telling us 

is it’s based on the definitions we have, the procedures. 

Mr. TOM UDALL. Thank you. I see my time is out and I don’t 

want to indulge Chairman Gibbons on his overindulge here. Can I 

submit additional questions to these witnesses for the record— 

Mr. GIBBONS. Certainly. 

Mr. TOM UDALL. —rather than having to ask you again to requestion. Is that all right, Mr. Chairman? 

Mr. GIBBONS. Mr. Udall, you and any other member of this Committee are certainly welcome to submit written questions for the 

witnesses that could be answered and submitted for the record. 

Mr. TOM UDALL. Thank you, Mr. Chairman, and thank you for 

allowing me to get in more than just one question. Thank you. 

Mr. GIBBONS. Mr. Cole. 

Mr. COLE. thank you, Mr. Chairman. 

I would like to yield the balance of my time, and however many 

questions I have, to my good friend, Mr. Gilchrest. 

Mr. GIBBONS. Well, it started out to be one. Mr. Gilchrest went 

to 2 minutes and forty-five seconds, and Mr. Udall went to 5 minutes. So, in the good gracious kindness to these gentlemen sitting 

out here, I would hope that we can limit the number of questions 

we have. 

Mr. Gilchrest. 

Mr. GILCHREST. I actually think, Dr. Hogarth, that the Level 3 

definition of harassment in the language of the bill will be more 

protective, if I could say that to Mr. Udall, the Level 3 definition 

in the text, will be more protective than present law, because I 

think it gets at people that ride those alien species around, 

invasive species around, if I could refer to jet skis as invasive 

species. So I think that part, Dr. Hogarth, of the legislation goes 

to the heart of some of the problems in the more built-up areas. 

So I’m happy with that. 

The last question I have deals with the issue of incidental takes 

based on the text of the language in the bill, which does change 

existing law, and how that would change or not change what NMPs 

or Interior would go through as far as letters of authorization or 

incidental harassment authorizations in those incidental takes. 

Does anything change, based on this legislation, to what you do 

now as far as that process is concerned? 

Dr. HOGARTH. No. No, not to the mitigation measures and being 

permits and all, it’s still the same. I think I may have given you, 

in answer to you quickly awhile ago, from a scientific standpoint, 

106

we use a different permit for scientific anyway. So that’s why I say 

I don’t expect any differences there. 

Mr. GILCHREST. So there is no change in general harassment 

authorization— 

Dr. HOGARTH. No. 

Mr. GILCHREST. —based on the new legislation? 

Dr. HOGARTH. Correct. 

Mr. GILCHREST. And Level 3 harassment would not affect scientific research because it’s a different permitting process? 

Dr. HOGARTH. Yes, that’s correct. 

Mr. GILCHREST. How’s that, Mr. Chairman? 

Mr. GIBBONS. It was more succinct than your last effort, Mr. 

Gilchrest. 

[Laughter.] 

Mr. Grijalva. 

Mr. GRIJALVA. Thank you, Mr. Chairman. I have no questions for 

the witnesses, but just an insertion into the record regarding Public Law 105-85. If I could make that a part of the record. 

This section deals with administrative actions adversely affecting 

military training or other readiness activities. I think it’s 10 USCS, 

in particular section 2014. My request is to have that in its entirety 

so we can have a literal context as to the reference I made to that 

law. 

Mr. GIBBONS. Without objection. 

[The document follows:]

10 U.S.C. 2014

***CURRENT THROUGH P.L. 108–3, APPROVED 1/13/03 ***

TITLE 10. ARMED FORCES

SUBTITLE A. GENERAL MILITARY LAW

PART III. TRAINING AND EDUCATION

CHAPTER 101. TRAINING GENERALLY

Sec. 2014. Administrative actions adversely affecting military training or other 

readiness activities 

(a) Congressional notification. Whenever an official of an Executive agency takes 

or proposes to take an administrative action that, as determined by the Secretary 

of Defense in consultation with the Chairman of the Joint Chiefs of Staff, 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, the Secretary shall submit a written notification of the action and each significant adverse effect to the head of the Executive agency taking 

or proposing to take the administrative action. At the same time, the Secretary shall 

transmit a copy of the notification to the President, the Committee on Armed 

Services of the Senate, and the Committee on Armed Services of the House of Representatives. 

(b) Notification to be prompt. 

(1) Subject to paragraph (2), the Secretary shall submit a written notification of an administrative action or proposed administrative action required by subsection (a) as soon as possible after the Secretary becomes 

aware of the action or proposed action. 

(2) The Secretary shall prescribe policies and procedures to ensure that 

the Secretary receives information on an administrative action or proposed 

administrative action described in subsection (a) promptly after Department 

of Defense personnel receive notice of such an action or proposed action. 

(c) Consultation between Secretary and head of Executive agency. Upon notification with respect to an administrative action or proposed administrative action 

under subsection (a), the head of the Executive agency concerned shall—

107

(1) respond promptly to the Secretary; and 

(2) consistent with the urgency of the training or readiness activity involved and the provisions of law under which the administrative action or 

proposed administrative action is being taken, seek to reach an agreement 

with the Secretary on immediate actions to attain the objective of the administrative action or proposed administrative action in a manner which 

eliminates or mitigates the adverse effects of the administrative action or 

proposed administrative action upon the training or readiness activity. 

(d) Moratorium. 

(1) Subject to paragraph (2), upon notification with respect to an administrative action or proposed administrative action under subsection (a), the 

administrative action or proposed administrative action shall cease to be effective with respect to the Department of Defense until the earlier of—

(A) the end of the five-day period beginning on the date of the notification; 

or 

(B) the date of an agreement between the head of the Executive agency 

concerned and the Secretary as a result of the consultations under 

subsection (c) 

(2) Paragraph (1) shall not apply with respect to an administrative action 

or proposed administrative action if the head of the Executive agency concerned determines that the delay in enforcement of the administrative action or proposed administrative action will pose an actual threat of an imminent and substantial endangerment to public health or the environment. 

(e) Effect of lack of agreement. 

(1) If the head-of an Executive agency and the Secretary do not enter into 

an agreement under subsection (c)(2), the Secretary shall submit a written 

notification to the President who shall take final action on the matter. 

(2) Not later than 30 days after the date on which the President takes 

final action on a matter under paragraph (1), the President shall submit 

to the committees referred to in subsection (a) a notification of the action. 

(f) Limitation on delegation of authority. The head of an Executive agency may 

not delegate any responsibility under this section. 

(g) Definition. In this section, the term ‘‘Executive agency’’ has the meaning given 

such term in section 105 of title 5, except that the term does not include the General 

Accounting Office. 

HISTORY: (Added Nov. 18, 1997, P.L. 105–85, Div A, Title III, Subtitle B, Sec. 

325(a), 111 Stat. 1678.) (As amended Oct. 5, 1999, P.L. 106–65, Div A, Title X, Subtitle G, Sec. 1067(1), 113 Stat. 774.) 

HISTORY; ANCILLARY LAWS AND DIRECTIVES 

Amendments: 

1999. Act Oct. 5, 1999, in subsection (a), substituted ‘‘Committee on Armed 

Services’’ for ‘‘Committee on National Security’’ preceding ‘‘of the House’’. 

The CHAIRMAN. Gentlemen, your patience has been overwhelming. We thank you for that. We would like to excuse Panel 2 

and call up Panel 3. 

Panel 3 will consist of Dr. Paul Eugene Nachtigall—I hope I pronounced your name right—Director, Marine Mammal Research 

Program, Hawaii Institute of Marine Biology, University of Hawaii; 

Dr. Darlene R. Ketten, Senior Scientist, Biology Department, 

Woods Hole Oceanographic Institution; Mr. John C. Kunich, Associate Professor of Law, Roger Williams University School of Law; 

and Ms. Karen Steuer, Senior Policy Advisor, National Environmental Trust. 

If I have mispronounced any of your names, I apologize. We will 

call the third panel up now. 

Before you get seated comfortably there, we have a policy in this 

Committee, as you have already seen, to swear in our witnesses. 

So, when you are ready, we will begin that process. 

[Witnesses sworn.] 

Let me record show that each of the witnesses before us have responded in the affirmative. 

108

To begin this panel, we will begin with Dr. Nachtigall, Director, 

Marine Mammal Research Program, Hawaii Institute of Marine Biology. Doctor, the floor is yours. 

Again, to each of you, I apologize for the lateness of the hour and 

I am grateful for the patience you have demonstrated in waiting 

out the rest of the panels for your opportunity to testify. 

Dr. Nachtigall. 

STATEMENT OF PAUL EUGENE NACHTIGALL, DIRECTOR, 

MARINE MAMMAL RESEARCH PROGRAM, HAWAII INSTITUTE 

OF MARINE BIOLOGY, UNIVERSITY OF HAWAII 

Dr. NACHTIGALL. Thank you very much. 

Thank you for the invitation to appear before your Committee. 

I feel honored to be asked and appreciate your request to provide 

information. I will provide opinions concerning marine mammals 

with your understanding that I am primarily a scientist and not an 

advocate, a critic, or well-versed in legal matters. My comments are 

my own as a scientist and do not necessarily represent my institution or any professional society that I serve. 

I primarily conduct research on the hearing and effects of sound 

on dolphins and whales. I am very concerned about both the ability 

to continue to conduct research and the effects of sound on populations of marine mammals. It is my opinion that one cannot know 

about the effects of sound on animals without conducting wellplanned and executed basic research. 

There appears to be a current trend among some marine mammal advocates to be very conservative when it comes to science. 

Some apparently advocate that no research involving sound should 

be done. I think it’s unreasonable to do nothing. Basic research is 

essential to understand the animals and to assist in the preservation of their populations. 

There have been two recent occurrences relating to research activities that have been enjoined by the courts. One of these research activities was specifically aimed at examining the effects of 

anthropogenic sound on the behavior of wild marine mammals. I 

believe that it is most unfortunate that this sort of research has 

been stopped. How will we know what the effects of sound are on 

marine mammals if, in fact, scientists are not allowed to study it? 

In the other occurrence, a National Science Foundation-supported ship was enjoined from continuing seismic research off Mexico following the discovery of at least one beaked whale that 

stranded nearby the ship. 

Scientists do have an obligation to be concerned about the effects 

of their scientific investigation on the environment. I believe that 

this case identifies a critical need for basic research on the effects 

of sound on whales. Beaked whales also stranded in the Bahamian 

incident and again in the Canary Islands within the last couple of 

years, both apparently involved naval exercises and sonar, but unfortunately we still know very little about beaked whales and what 

they hear. 

One difficulty that I see is that it is becoming increasingly expensive and difficult to hold marine mammals for research. There are 

increasingly fewer opportunities to conduct hearing studies on marine mammals due to the expense of holding animals and the difVerDate 0ct 09 2002 10:39 Nov 04, 2003 Jkt 087420 PO 00000 Frm 00112 Fmt 6633 Sfmt 6602 J:\DOCS\86854.TXT HRESOUR1 PsN: KATHY
109

ficulty in acquiring new animals and new species of animals. It 

would be most helpful if the structure of the laws, and the implementation of the regulations governing the protection of marine 

mammals, created a climate of acceptance and support for bona 

fide scientists that care about marine mammals and have the 

training and skills to complete basic research and create the knowledge base necessary to solve practical applied problems. 

H.R. 1835 would amend the definition of harassment of marine 

mammals under the Marine Mammal Protection Act. I will limit 

my comments to the effects of sound on marine mammals. 

First of all, we have audiograms, indicating how well animals 

hear across frequencies, on only 10 or 11 of the 85 species of dolphins and whales. I am working on a panel organized by the National Marine Fisheries Service to establish tolerable sound levels 

for whales and dolphins based on the data we have to date. I am 

pleased with the idea of basing the levels on real scientific data, 

but concerned that we may not have sufficient data to cover many 

critical marine mammal species. 

I am excited about the fact that we have developed new scientific 

tools to be able to learn which levels of sound may injure or harass 

marine mammals, but I do not believe that we currently have a 

broad enough data base to comprehensively know about sound levels and frequencies that might harass or injure a great variety of 

marine mammals. 

The definitions of harassment are general, but seem tied to the 

current concern about sound in the oceans. If the harassing ‘‘act’’ 

were the production of some sort of sound, it would seem to be very 

difficult to determine what sort of ‘‘act’’ would be likely to disturb 

if, in fact, you did not know the basic parameters of the animal’s 

ability to hear that sound. 

We have basic information on the hearing of some species of marine mammals, and from that data the most reasonable thing to do 

is to extrapolate to the rest. While that is currently the most reasonable thing to do, I would certainly be more comfortable in defining harassment from sound if our data set encompassed a good 

many more species in order to increase the precision of our extrapolation. 

I therefore advocate that we accelerate the level of scientific inquiry to include new ways to test marine mammal hearing and to 

expand the number of species examined. 

Thank you very much for this opportunity. 

[The prepared statement of Dr. Nachtigall follows:]

Statement of Paul E. Nachtigall, Director, Marine Mammal Research 

Program, Hawaii Institute of Marine Biology, University of Hawaii 

Thank you for the invitation to appear before your Committee. I feel honored to 

be asked and appreciate your request to provide information. I will provide opinions 

concerning marine mammals with your understanding that I am primarily a scientist and not an advocate, a critic or well versed in legal matters. My comments 

are my own as a scientist and do not necessarily represent my institution or any 

professional society that I serve. 

I primarily conduct research on the hearing and effects of sound on dolphins and 

whales. I am very concerned about both the ability to continue to conduct research, 

and the effects of sound on populations of marine mammals. It is my opinion that 

one cannot know about the effects of sound on animals without conducting wellplanned and executed basic research. There appears to be a current trend among 

some marine mammal advocates to be very conservative when it comes to science. 

110

Some apparently advocate that no research involving sound be done. I think it is 

unreasonable to do nothing. Basic research is essential to understand the animals 

and to assist in the preservation of their populations. 

There have been two recent occurrences relating to research activities that have 

been enjoined by the courts. One of those research activities was specifically aimed 

at examining the effects of anthropogenic sound on the behavior of wild marine 

mammals. I believe that it is most unfortunate that this sort of research has been 

stopped. How will we know what the effects of sound are on marine mammals if 

in fact scientists are not allowed to study it? In the other occurrence, a National 

Science Foundation supported ship was enjoined from continuing seismic research 

off Mexico following the discovery of at least one beaked whale that stranded nearby 

the ship. Scientists do have an obligation to be concerned about the effects of their 

scientific investigation on the environment. I believe that this case identifies a critical need for basic research on the effects of sound on whales. Beaked whales also 

stranded in the Bahamian incident and again in the Canary Islands within the last 

couple of years. Both apparently involved naval exercises and sonar, but unfortunately we still know very little about beaked whales and what they hear. 

One difficulty that I see is that it is becoming increasingly expensive and difficult 

to hold marine mammals for research. There are increasingly fewer opportunities 

to conduct hearing studies on marine mammals due to the expense of holding animals and the difficulty in acquiring new animals and new species of animals. It 

would be most helpful if the structure of the laws, and the implementation of the 

regulations governing the protection of marine mammals, created a climate of acceptance and support for bona fide scientists that care about marine mammals and 

have the training and skills to complete basic research and create the knowledge 

base necessary to solve practical applied problems. 

H.R. 1835 would amend the definition of harassment of marine mammals under 

the Marine Mammal Protection Act. I will limit my comments to the effects of sound 

on marine mammals. First of all we have audiograms, indicating how well animals 

hear across frequencies, on only 10 or 11 of the 85 species of dolphins and whales. 

I am working on a panel organized by the National Marine Fisheries Service to establish tolerable sound levels for whales and dolphins based on the data we have 

to date. I am pleased with the idea of basing the levels on real scientific data, but 

concerned that we may not have sufficient data to cover many critical marine mammal species. I am excited about the fact that we have developed new scientific tools 

to be able to learn which levels of sound may injure or harass marine mammals, 

but I do not believe that we currently have a broad enough data base to comprehensively know about sound levels and frequencies that might harass or injure a great 

variety marine mammals. 

The definitions of harassment are general but seem tied to the current concern 

about sound in the oceans. If the harassing ‘‘act’’ were the production of some sort 

of sound, it would seem to be very difficult to determine what sort of ‘‘act’’ would 

be ‘‘likely to disturb’’, if in fact you did not know the basic parameters of the animal’s ability to hear that sound. We have basic information on the hearing of some 

species of marine mammals and from that data the most reasonable thing to do is 

to extrapolate to the rest. While that is currently the most reasonable thing to do, 

I would certainly be more comfortable in defining harassment from sound if our 

data set encompassed a good many more species in order to increase the precision 

of our extrapolation. 

Mr. GILCHREST. [Presiding.] Thank you, Dr. Nachtigall. I think 

we met in Hawaii at some point. 

Dr. NACHTIGALL. We sure did. 

Mr. GILCHREST. Back in 1942, just after— 

[Laughter.] 

Dr. NACHTIGALL. Four years before I was born, yeah. 

Mr. GILCHREST. We both have been preserved well. But it’s good 

to see you again, sir, and thank you for coming all this way to testify. 

Dr. NACHTIGALL. Thank you very much. 

Mr. GILCHREST. It seems like, when the smartest people testify, 

most of us leave the room. 

Dr. Ketten, welcome from Cape Cod. 

111

STATEMENT OF DARLENE R. KETTEN, SENIOR SCIENTIST, 

BIOLOGY DEPARTMENT, WOODS HOLE OCEANOGRAPHIC INSTITUTION, AND ASSISTANT PROFESSOR, DEPARTMENT OF 

OTOLOGY AND LARYNGOLOGY, HARVARD MEDICAL SCHOOL 

Dr. KETTEN. Thank you, sir. It’s a privilege to be here. I appreciate the opportunity to testify before this hearing. 

My name is Darlene Ketten. I have an appointment as a senior 

scientist, as you’ve heard, at Woods Hole Oceanographic Institution, and I hold a joint appointment also at Harvard Medical 

School. 

Aside from obviously having a letterhead that is way too long, I 

need to state, as Dr. Nachtigall did, that I am not here to represent 

officially the opinions of my institution but, rather, as an individual 

scientist. I will say, however, that the comments I am making are 

a consensus of opinions of my colleagues at both institutions with 

whom I have discussed this, as well as a great deal of e-mail traffic 

that has been going back and forth amongst oceanographic institutions and some organizations that represent oceanographic consortia. 

My position is based primarily, in addition to those conversations, on nearly 20 years of experience in research in marine mammal sensory systems and on auditory trauma and disease. Obviously, I’ve had a fair amount of individual experience with research 

permitting under MMPA and ESA. 

My opinions are also informed most recently by my experience as 

a panel member for the 2003 NRC Report on Ocean Noise as well 

as being on the advisory board for NOAA Fisheries for determining 

noise exposure standards, effectively trying to set up OSHA regulations for the ocean. We’re not nearly there yet. 

I was privileged to testify before the House Armed Services Committee and the Senate Armed Services Committee on the exemption question. Therefore, I have had fairly extensive opportunities 

to look at the components that have gone into this bill and to think 

about the implications of the amendments that are being proposed. 

The first question that was posed to me in my letter of invitation 

was, ‘‘Are the issues that are addressed in H.R. 1835 of concern 

also for broader level endeavors, including the research community 

and the industry?’’ The answer is simple. Absolutely, for all of the 

issues that you have raised and considered. The Committee is to 

be applauded for the foresight to begin thinking about whether 

these have broader, important applications. Every endeavor by humans in the oceans, regulated or not regulated at the moment, has 

these concerns in common. 

First of all, I want to say that I think conservation regulation is 

imperative. It is not something we can take lightly, nor that we 

should sweep away, not something that we should, the term has 

been used, ‘‘gut’’. No human activity in the oceans is without 

sound, and we do know, based on the last NRC report, noise from 

human efforts is going up three decibels per decade. That’s a doubling per decade. 

Because marine mammals, arguably, have as their most important sense hearing, additional noise can have horrendous impacts. 

Or it can have no impacts. The MMPA was implemented originally 

to conserve marine mammals and, therefore, to address the quesVerDate 0ct 09 2002 10:39 Nov 04, 2003 Jkt 087420 PO 00000 Frm 00115 Fmt 6633 Sfmt 6602 J:\DOCS\86854.TXT HRESOUR1 PsN: KATHY
112

tion of such concerns as what will underwater noise do to marine 

mammals. Ideally, it was intended to judge and to regulate, to balance rationally, and, with appropriate information, responsibly 

human activities in the oceans and their potential impact. 

Unfortunately, as Dr. Nachtigall has pointed out very clearly, we 

don’t have enough knowledge to put numbers in front of the regulators and say this is safe or this is not safe. Consequently, we now 

find ourselves applying a precautionary principle that’s to be 

lauded, but it is also changing our focus from the original intention 

of the MMPA of population level consequences to individual cases. 

I would say that not only are we in a polarized and litigious climate at the moment, but in some cases, ironically, as in the most 

recent Pyrrhic victory in a court case in which the decision was to 

halt an experiment that was intended to test a sonar to detect and 

protect whales from ship strikes, we are beginning to enter a period of stagnation. 

Permit processes are part of that. They are complex, costly, and 

they are fraught with delay and uncertainty. This is not news. 

You’re all aware that there are three NRC reports in the last decade that have dealt with marine mammals and sound, and in every 

one of them there was a complete consensus that said the permitting process must be revised. They have all recommended the same 

revisions. 

Within the last few months, there have been parallel position papers by every major oceanographic institution, being presented to 

this Committee and others, and organizations like CORE are similarly presenting position papers along the same lines. 

To summarize that portion, I and many other scientists, as well 

as these position papers, are in agreement with the proposed 

amendment. They are to be applauded—but, there are a couple of 

short exceptions. I see I’m getting short of time. 

The first and most important thing is that the inclusion of the 

word ‘‘significance’’ is important. It’s a very good step forward, but 

‘‘significance’’ is a fungible— 

Mr. GILCHREST. Dr. Ketten, please don’t rush. We’ll listen. 

Dr. KETTEN. OK. Thank you, sir. That’s very generous. 

Significance is a fungible term. It is not rigorous. There is, however, a term of art in science, ‘‘biological significance’’, and that 

means a population level effect. I would urge you to consider rewording the definition of harassment, in consistency with the 2000 

and 2003 NRC reports, to simply add in that important modifier, 

‘‘biologically significant.’’ That restores the intent of the original 

MMPA and it provides relief for many of the problems that the 

NRC reports pointed out in the definition of harassment. 

Therefore, subparagraphs (2) and (3), both for injury and for behavioral changes, with the addition of ‘‘biologically significant,’’ 

come into line with the NRC recommendations. However—and here 

I must disagree with Dr. Hogarth—subparagraph (iii), any act directed at a specific individual, clearly the intention is not to decimate much less exterminate research, but it has that potential. 

This is an example of the law of unintended consequences. There 

is no hearing research, no bioacoustics research or behavioral work 

on marine mammals that does not involve testing, monitoring, or 

manipulating individual animals. That clause has the potential to 

113

be used against marine mammal research permits very effectively. 

I urge you to reconsider, or at least to very carefully consider how 

that may be applied in the future. 

The last comment I want to make is on the idea of the removal 

of small takes. This is a very important element with which I, at 

least, and many of the organizations, are in full agreement. Small 

takes has been used, interpreted, I should say, as meaning a very 

small number of individuals without the perspective of the percentage of population, and further, without the concept of individuals 

and their importance in life stages or their actions. 

If small takes is not removed, then we have the possibility of it 

superseding the far more important issue of negligible impact. 

Therefore, I’m in complete agreement with the concept of small 

takes being removed and focusing on negligible impact as the truly 

appropriate variable. 

In summary, for responsible stewardship, we really need to be 

able to go forward with an informed and balanced view. Hearings 

like this are allowing all of the significant, important parties that 

have a stake in this to have their views heard and, for that, I am 

extremely grateful. 

If this amendment group is passed and applied more broadly, it 

actually has a very important potential to make the permitting 

process more effective and beneficial ultimately to marine mammals, particularly by broadening our facility for research. 

Thank you for listening to me. 

[The prepared statement of Dr. Ketten follows:]

Statement of Darlene R. Ketten, Ph.D., Senior Scientist, Assistant 

Professor, Biology Department, Department of Otology and Laryngology, 

Woods Hole Oceanographic Institution, Harvard Medical School 

Credentials 

This testimony is being submitted to the Committee to represent my views as an 

individual scientist. It does not represent those of either institution with which I 

am affiliated. I have arrived at my position as stated below based primarily upon 

my experience as a researcher with over 15 years experience in the combined fields 

of mammalian hearing, marine mammal sensory system modeling, ear disease, and 

head and neck trauma diagnostics. I received a B.A. from Washington University 

(Biology and French, 1971), an M.S. from M.I.T. (Biological Oceanography, 1979), 

and a Ph.D. from Johns Hopkins University (jointly awarded by neuroanatomy, behavioral ecology, and experimental radiology, 1984). I currently hold joint appointments as a senior scientist in Biology at Woods Hole Oceanographic Institution and 

as an assistant professor in Otolaryngology at Harvard Medical. 

In addition to my basic research training, I have completed medical specialty accreditation courses in Otopathology, Neuroradiology, and Forensic Pathology, and I 

am a member of the Society of Marine Mammalogy, the Association for Research 

in Otolaryngology, the Radiological Society of North America, Sigma Xi, and the 

Acoustical Society of America. I am a Fellow of the Acoustical Society, an active 

member of the ASA Bioacoustics Technical and Membership Committees, and have 

served on Federal advisory boards and panels on hearing, bioacoustics, acoustic 

trauma, marine mammal acoustics, and ocean noise for the National Institutes of 

Health, National Institutes of Deafness and Communication Disorders, NIH Consensus Development Conferences, the National Academy of Sciences, the Marine 

Mammal Commission, Minerals Management Service, NATO, Office of Naval Research, and NOAA/NMFS. My current work focuses on understanding marine mammal hearing mechanisms and modeling the hearing of endangered species. My comments at this time are particularly related to my direct experience with permitting 

for the conduct of marine mammal research as well as discussions during my tenure 

as a member of the recent National Research Council panel on Ocean Noise and as 

a member of NOAA Fisheries advisory board on noise exposure. 

114

Introductory Statement 

The proposed amendments to the Endangered Species Act and the Marine Mammal Protection Act outlined in H.R. 1835 were prompted by exemptions requested 

for the purposes of improving and facilitating military readiness. I have had the 

privilege to testify before both the House and Senate Armed Services Committees 

with regard to that request. Therefore I have had the opportunity to consider the 

issues involved in both the exemption and the amendments being proposed and reviewed by this Committee. In my testimony before the House and Senate Armed 

Services Committees I stated that the exemptions were both timely and welcome as 

they had the potential to provide a spring board to both bring about public awareness of permitting issues and to promulgate changes that would benefit all communities whose work and research are regulated and impacted by to these same regulations. It is not surprising therefore that I applaud this Committee for its interest 

and foresight in considering whether the proposed changes are important and appropriate for a general level of application. These are indeed important issues for 

many scientific and industrial efforts, and it would be not only efficient but extremely beneficial for those efforts to consider extending the amendments to a more 

general case. In the following testimony, I will first outline broader level concerns 

related to sound in the oceans and the current regulatory effects and then discuss 

concerns with the current wording of H.R. 1835 under Section 3 for definition of 

harassment and Section 5 for incidental takes, both of which have particular implications for the oceanographic and marine mammal scientific research communities. 

Current Acoustic and Legislative Issues 

There is no denying the importance of anthropogenic sound impacts in our oceans 

and the appropriateness of regulating the deployment and use of sound sources. 

Concomitant with man’s increasing use of the oceans is an increase in the ocean’s 

acoustic budget. As indicated in the current NRC report on Ocean Noise (2003), 

noise from human related activity is increasing on average throughout the oceans 

at 3 dB per decade; i.e., potentially doubling every ten years. Given our ever increasing activity in all seas and at all depths, this figure is not surprising. Anthropogenic noise is an important component of virtually every human endeavor in the 

oceans, whether it be shipping, transport, exploration, research, military activities, 

construction, or recreation. For some activities, such as military exercises and oil 

exploration, impulsive and explosive devices are fundamental tools that are relatively short-term but locally intense; for others, such as shipping, the source levels 

may on average be lower, but the sounds are constant and cumulatively dominate 

the noise fields in high traffic areas of the oceans. 

Because there is no human activity in the oceans that does not add noise and because our activities span the globe and produce sounds over the entire audible range 

of most animals, it is reasonable to assume that any man-made noise in the oceans 

may have a significant and adverse impact on marine animals. Because marine 

mammals are especially dependent upon hearing and in many cases are endangered, the concern over noise impacts on these animals is particularly acute. These 

concerns are both logical and appropriate, but it is also important to note that at 

this time, there is no data that gives us a firm answer on what will be the extent 

of impact from any one sound source. We simply do not have sufficient data to put 

accurate boundaries on our concerns. 

This lack of discrete knowledge on impacts of underwater sound, coupled with the 

relatively open wording of the original MMPA and with recent dramatic stranding 

events, has led to a heated, highly polarized, litigious climate. In the last five years, 

there have repeated suits brought against both the military and research institutions, in part based on contentions that the permitting process was flawed and had 

allowed experiments or exercises to proceed without meeting the MMPA requirements. A recent example is the suit brought to halt LFA use based on the fact that 

beaked whale mass strandings were shown to correlate with naval exercises involving mid-range sonars. Whales that stranded in three such cases, the Bahamas, Madeira, and Canary Islands, have been found to have an unusual suite of traumas, 

the mechanisms for which are still under investigation. However, this is a case of 

inappropriate and overly broad extrapolation from one event to another. There are 

substantial differences between LFA and mid-range tactical sonars, and, to date, 

there is no evidence of physical harm from LFA. Nevertheless, this suit, which adduced as part of its concerns the Bahamian findings, was successful. Further, much 

of the suit’s discussion centered on the potential for numbers of takes and the extent 

of posited impacts, both of which are issues directly related to the existing ESA and 

MMPA language. 

Other cases have been brought within the last year, based on similar arguments, 

that halted physical oceanographic and behaviourial research as well. These cases 

115

are addressed in additional testimony being submitted, and the details need not be 

repeated here. However, it is important to underscore that while the cases were motivated by very sincere concerns for the use of explicit sound sources, their impacts 

are potentially extraordinarily broad. Indeed, they have the potential to initiate a 

requirement for in-depth environmental impact statements for every marine mammal research project that is proposed. If that position obtains, it will at the very 

least substantially reduce and can quite literally shut down future research, for impact assessments of that magnitude are not sustainable by the general research 

community. Clearly, the issue of restrictions on sound sources is not simply a military concern. Issues, liabilities, and costs related to ESA and MMPA permitting are 

a common concern for every endeavor, whether currently regulated or not, that involves the use of sound in our seas. 

As noted above, virtually every human activity in the oceans involves sound either 

intentionally or as a by-product. For responsible use of the seas, it is imperative to 

consider to the best of our ability the probable impact of each sound we add and 

to determine whether that impact is worth its inherent risk. At some level, some 

individuals may be impacted by any sound beyond the natural, average ambient. We 

must consider for any effort introducing sound use in the oceans whether and to 

what extent the projection and repetition of the signals employed will adversely impact significantly or negligibly any species within the ‘‘acoustic reach’’ of the source. 

There are therefore two areas of concern that are irretrievably intertwined for all 

marine work. First, there is the need for responsible yet effective deployment of 

sound sources. To do that, we must balance potential impact against potential information. Second, there is the necessity to validate and regulate that balance through 

the permitting process. The major intent of the MMPA was to provide a process that 

would fairly and responsibly address those two concerns. Unfortunately, the knowledge base needed for informed regulation has not kept pace with the rapid growth 

of either the devices that are available or the increasing concerns about sound use. 

As the sources and uses increase, the permit process becomes progressively more encumbered. The regulatory agencies are overburdened and permitting procedures are 

complex, costly, and fraught with uncertainty. 

The impact of the existing regulations and their implementation have been a common theme in three major National Research Council reports in the last decade: • National Research Council (NRC). 1994. Low–Frequency Sound and Marine 

Mammals: Current Knowledge and Research Needs. National Academy Press, 

Washington, D.C. • National Research Council (NRC). 2000. Marine Mammals and Low–Frequency 

Sound: Progress Since 1994. National Academy Press, Washington, D.C. • National Research Council (NRC). 2003. Ocean Noise and Marine Mammals. 

National Academy Press, Washington, D.C. 

There is complete consensus in the findings by these panels that the regulations 

must be revised to avoid the demise of valuable research programs, including those 

that would, ironically, be beneficial to marine mammal conservation. Further, major 

marine research institutions, independently and in concert, as well as broader based 

oceanographic organizations such as CORE (Consortium for Oceanographic Research and Education), have produced position papers advocating the same revisions 

as recommended by these panels 

The proposed amendments within H.R. 1835 therefore have the potential to offer 

major and needed improvements in the permitting process if they address research 

as well as military needs. However, that also means that the bill before us must 

be carefully examined to avoid exacerbating current hazards or adding new ones 

that are specific to research. Two concerns are paramount: the definition of harassment and the issue of small takes. 

Recommendations for revision of H.R. 1835

Section 3: Amendment to the definition of harassment 

The definition of harassment is arguably the primary component requiring revision. The 1994 amendment to the MMPA included a definition of harassment as: 

‘‘...any act of pursuit, torment, or annoyance which: 

Level A—has the potential to injure a marine mammal or marine mammal stock in the wild; or 

Level B—has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or 

sheltering.’’

This definition is sufficiently broad that it has been interpreted to mean any detectable change constitutes harassment. The first NRC report (1994) comments that 

as ‘‘researchers develop more sophisticated methods for measuring the behavior and 

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physiology of marine mammals’’.., it is likely that detectable reactions, however 

minor and brief, will be documented at lower and lower received levels of humanmade sound’’. NRC (2000) concludes that it ‘‘does not make sense to regulate minor 

changes in behavior having no adverse impact; rather, regulations must focus on 

significant disruption of behaviors critical to survival and reproduction’’. The current 

NRC report (2003) clearly states that the previous recommendations are still relevant although unfulfilled and require attention. All three NRC committees are 

therefore in agreement that the definition of harassment should be modified to focus 

on the biologically significant injury and disruption of behaviors critical to survival 

and reproduction, i.e., on population level and therefore biologically significant impacts rather than individually detectable changes. 

Of course sound operates at the individual level, but the repeatedly stated, fundamental concern is for the well-being of populations. All data to date have been gathered on individual or local populations. As the NRC report on Ocean Noise and Marine Mammals (2003) emphasized, our major concern should be for population level 

impacts. This is consistent with the intent but not all implementations of the 

MMPA. 

The original MMPA noted a concern for impact on marine mammal populations. 

Yet, much of the debate and contention that we see today over the issues surrounding sound in the oceans derives from and focuses on relatively few impacted 

individuals. High profile events, like the dramatic strandings in the Bahamas and 

Canaries, are being construed as virtually global, both in terms of species effects 

and sound source types. Precaution is appropriate; however, currently, extraordinarily precautionary positions are holding sway in which very broad and scientifically unfounded extrapolations are being made. A Pyrrhic victory was recently won 

in a second case in which an experiment to test the audibility of sonars intended 

to detect and thereby protect whales from ship strikes was halted. 

Realistically, because of the diversity of hearing characteristics among marine 

animals, it is virtually impossible to eliminate all acoustic impacts from any endeavor for all individuals, therefore the key issues that must be assessed are: 1) what 

combination of frequencies and sound pressure levels are proposed to fit each anthropogenic task; 2) what species are present in the area the device will ensonify 

at levels exceeding ambient; 3) what is the probable severity of any potential impacts to the exposed animals from the combined frequency-intensity-temporal characteristics of the source. Above all, the important point is to know whether these 

factors produce any biologically significant impact to a species. In the most recent 

NRC report, a major recommendation was to structure research on marine mammals to allow predictions of population-level consequences. Individual effects are inputs to our data base, but the true metric to apply is biological significance. 

H.R. 1835 proposes a new definition of harassment that includes the concepts 

‘‘...(i) significant potential to injure a marine mammal or marine mammal stock in 

the wild;’’ ‘‘...(ii) any act that disturbs or is likely to disturb a marine mammal or 

marine mammal stock in the wild by causing disruption of natural behavioral patterns, ...to a point where such behavioral patterns are abandoned or significantly 

altered’’, and ‘‘...(iii) any act that is directed toward a specific individual, group, or 

stock of marine mammals in the wild...’’. There are three chief concerns in this definition: 

1. The appropriateness of the term ‘‘significant’’. 

2. The appropriateness of the concept of abandonment and significant alteration 

of behaviours. 

3. The appropriateness of the inclusion of acts directed towards individuals. 

The new definition represents an important move by including the concept of significance but a further modification is critical to comply with the concerns noted 

above. 

‘‘Biological significance’’ is a term of art which implies a species or population 

level concern deriving from impacts that are capable of altering the viability of the 

population. ‘‘Significance’’ per se is not a sufficiently rigorous term to provide a litmus test for harassment; the phrase loses its technical relevance and potency if the 

biological modifier is removed. Therefore it is important, if the intent and concerns 

expressed in the NRC reports are to be addressed and, equally important, to avoid 

repeating the hazard of a non-explicit criterion, that the phrase ‘‘biological significance’’ be employed in this amendment in lieu of simply ‘‘significant’’. 

Similarly, abandonment or alteration of behaviourial patterns is a phrase without 

explicit scientific meaning that could be interpreted to mean individual effects. Just 

as with injury, biologically significant alterations are the appropriate focus for setting behaviourial harassment criteria. 

The addition of sub-paragraph (iii), under Section 3 poses a significant hazard for 

marine mammal research. For a number of practical reasons, research efforts on 

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marine mammal hearing, acoustics and behaviour depend upon the ability to observe, test, and manipulate individual animals. Therefore, although the intention of 

this paragraph may not have been explicitly directed at marine mammal research, 

it has, as written, the potential to substantially negatively impact this field. Subparagraph (ii) of Section 3 implies individual animal protection within the phrase, 

‘‘likely to disturb a marine mammal or marine mammal stock’’, but has the additional criterion of significance. Therefore, sub-paragraph (iii) is redundant and potentially damaging, and I strongly recommended its deletion. 

Section 5: Incidental Takings 

The concept of incidental takes is important and should be preserved. However, 

the inclusion of small numbers in existing MMPA Section 1371 (a)(5)D)(I) represents 

a serious hazard to all permit processes. Small numbers has in some reviews and 

court cases been interpreted literally and not as a percentage of population, which 

is the more scientifically valid perspective. The proposed removal of small numbers 

in H.R. 1835 provides relief from this problem and obviates a potential hazard of 

there being two tests for determining takes by harassment; i.e., small numbers as 

well as negligible impact. Consequently, I strongly support the stated amendments 

to this section. 

Summary 

This Committee’s interest and foresight in considering whether the changes to 

ESA and MMPA requested to enhance military readiness also have significance for 

research and industry are greatly appreciated. The proposed amendments have substantial potential to improve permitting processes for all marine endeavors. Currently, we are losing sight of the need for balance and for perspective. This is a potentially hazardous position since, ironically, this type of over-interpretation is actually preventing research that could provide precisely the answers that are needed 

to protect and conserve marine species. In a sense, precaution, in the extreme, may 

lead us to stagnation, and worse, because it is a position founded on assumed rather 

than known effects, it may prevent us from determining the true sources of greatest 

potential harm. 

For responsible stewardship of our oceans, it is imperative that we understand 

our impacts and that we proceed with a balanced and informed view. Risk assessment must be a part of that debate. There is undeniably some risk to some individuals from any underwater sound, but individual risk must be balanced by potential 

gain to the species. The addition of significant to the proposed revisions is a conceptual step forward worthy of consideration. I urge that the step be carried further 

to one of ‘‘biological significance’’ in order to provide a scientifically valid criterion 

for determination of harassment. It implies that our focus be shifted from the impossible goal of avoiding any possible individual impact to biologically significant, population level concerns. Such a shift, implemented with caution and judicious oversight, will not only reduce litigation, but also provide opportunities for education 

and understanding by the public of the appropriate scope for our concerns and of 

the critical need for research that will provide data to finally allow us to place clear 

and valid limits on sound use in our seas. 

Mr. GILCHREST. Thank you very much, Dr. Ketten. 

Mr. Kunich, welcome. 

STATEMENT OF JOHN C. KUNICH, ASSOCIATE PROFESSOR OF 

LAW, ROGER WILLIAMS UNIVERSITY SCHOOL OF LAW 

Mr. KUNICH. Thank you. 

Mr. Chairman, members of the Committee, I thank you for this 

opportunity to testify. I am here speaking in my individual capacity 

and not as an official representative of my university. 

As a professor of law at Roger Williams University School of 

Law, I have published several major law review articles dealing 

with the Endangered Species Act and the threats to biodiversity, 

and I wrote a book, ‘‘Ark of the Broken Covenant: Protecting the 

World’s Biodiversity Hotspots’’, published this year by Praeger. 

118

I served 20 years on active duty with the United States Air Force 

as a judge advocate prior to entering academia in 1999, and I specialized in these same areas in the Air Force as a JAG. 

During the 1990’s, I was the chief environmental law attorney for 

Air Force and the United States Space Command and NORAD, and 

I served as the chief of the environmental compliance and planning 

branch of the Headquarters Air force Environmental Law and Litigation Division. 

During my two decades of military service, which included advising the warfighters during the first Gulf War, our intervention in 

Kosovo, and several major operations other than war, I never became aware of even one instance in which either the ESA or the 

MMPA posed an impediment to the military mission. The Air Force 

was able to comply with no harmful effect on military readiness, 

training, or, indeed, on the actual successful conduct of wartime operations. The military did not need to choose between environmental compliance and mission accomplishment. 

I urge rejection of the proposal to substitute INRMPs for the critical habitat provisions under the ESA. The proposal would have 

the effect of rendering meaningless the most effective portion of the 

ESA. It would hollow out the core substantive protection of our 

most rigorous environmental statute and turn it into just one more 

procedural planning law. 

The Supreme Court, in a series of cases, has recognized the intent of Congress to assign preeminent importance to preserving life 

under the ESA. And the reason is clear. There is no remedy for a 

species driven into extinction. Each of the 1.75 million species 

known to us today is one of a kind, the end product of millions of 

years of adaptations to specific environmental conditions. Extinction of any species is an irreversible, irremediable loss, different in 

kind from the losses sought to be prevented by all other environmental laws. 

The world is now very likely in the midst of our sixth mass extinction. The five previous mass extinctions, during which up to 95 

percent of all life quickly went out of existence, all took place before human beings came on the scene. We have an airtight alibi on 

the first five mass extinctions, but we are primarily responsible for 

this mass extinction. Through our destruction of enormous 

amounts of critical habitat, we have severely jeopardized at least 

40 percent of all known species. 

Species that are endemic to only a small geographical area tend 

to be narrowly adapted to conditions there, and there is a predictable mathematical relationship between habitat reduction and the 

numbers of species that can be sustainably supported. 

My book, ‘‘Ark of the broken Covenant’’ focuses on the approximately 25 biodiversity hotspots, the 1.44 percent of Earth’s 

landmass that contains all of the remaining habitats of over 

133,000 identified higher plant species—that’s 44 percent of the 

world’s total—and 9,600 nonfish vertebrate species, 35 percent of 

the world’s total. These species, and many others, are faced with 

imminent extinction on a scale the world has not seen since the extinction spasm that wiped out the dinosaurs. In fact, there may be 

millions of species we have never even identified, most of them 

crowded into these hot spots. Like the 40 percent plus of known 

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species, these millions of unknown species are largely endemic to 

the hot spots. They are found there and no where else on Earth. 

but their remaining habitat is shrinking at an alarming rate. They 

have already lost 88 percent of their primary vegetation and are 

likely, absent greatly increased conservation efforts, to lose much 

more soon. 

Is there among these species a cure for AIDS or SARS or some 

other threats that will not arise for centuries? We will never know 

if we allow the critical habitats to be destroyed and, along with 

them, an immense share of all life on Earth. The prudent decision 

is to bet on life. 

Now is the worst possible time for new and wide-open exemptions to the critical habitat protections. A mass extinction is not 

time for weakening the few effective legal protections of biodiversity. The United States should be exercising global leadership in 

crafting stronger, more effective legal safeguards for our dwindling 

biodiversity. Instead, the proposed exemptions would do exactly the 

opposite. 

Thank you for this opportunity to testify. With your permission, 

at this point I would like to submit for the hearing record my 

Hastings Law Journal article and my Georgetown International 

Environmental Law Review piece, and I would be happy to answer 

any questions you may have. 

Thank you. 

[The prepared statement of Mr. Kunich follows:]

Statement of John Charles Kunich, Associate Professor of Law,

Roger Williams University School of Law, Bristol, Rhode Island 

Mr. Chairman, members of the Committee, thank you for this opportunity to testify. As a Professor of Law at Roger Williams University School of Law in Rhode 

Island, I specialize in Environmental, Natural Resources, and Biodiversity Law. I 

have published several major law review articles dealing with the Endangered 

Species Act and the threats to biodiversity, and I wrote a book ‘‘Ark of the Broken 

Covenant: Protecting the World’s Biodiversity Hotspots’’ published in 2003 by 

Praeger Publishers. 

Prior to entering academia in 1999, I served 20 years on active duty with the 

United States Air Force as a judge advocate, and I specialized in these same areas 

for the second half of my Air Force career. I was well suited to this specialty by 

virtue of my Bachelor of Science and Master of Science degrees in Biological 

Sciences, as well as my Juris Doctor degree from Harvard Law School and my Master of Laws degree in environmental law from George Washington University School 

of Law. 

During the 1990’s, I was the chief environmental law attorney for Air Force Space 

Command, United States Space Command, and the North American Aerospace Defense Command, and I served as the Chief of the Environmental Compliance and 

Planning Branch of the Headquarters Air Force Environmental Law and Litigation 

Division. I had the responsibilities of balancing the Air Force’s mission requirements 

with our legal duties under all applicable Federal, state, and international environmental and natural resources laws. 

During my two decades of military legal service, which included the first Gulf 

War, our intervention in Kosovo, and several major operations other than war, I 

never became aware of even one instance in which either the Endangered Species 

Act or the Marine Mammal Protection Act posed an impediment to the military mission. The Air Force was able to comply with the consultation requirements under 

Section 7 of the Endangered Species Act, as well as the takings provisions under 

Section 9, with no harmful effect on military readiness, training, or, indeed, on the 

actual successful conduct of wartime operations. The Air Force found a way to comply with all the mandates arising out of designated critical habitat for listed threatened and endangered species, as well as those responsibilities directly related to the 

listed species themselves. The military did not need to choose between environVerDate 0ct 09 2002 10:39 Nov 04, 2003 Jkt 087420 PO 00000 Frm 00123 Fmt 6633 Sfmt 6621 J:\DOCS\86854.TXT HRESOUR1 PsN: KATHY
120

mental compliance and mission accomplishment. The two were not mutually exclusive in any respect. 

I urge rejection of the proposal to substitute completion of an Integrated Natural 

Resources Management Plan in lieu of the critical habitat provisions under the Endangered Species Act. The proposal would have the effect of rendering meaningless 

the most effective portion of the Endangered Species Act. It would hollow out the 

core substantive protection of our most rigorous environmental statute and turn it 

into just one more procedural planning law. 

Integrated Natural Resources Management Plans are just that, plans. They often 

may be prepared by well-intentioned, dedicated professionals. They may be crafted 

in consultation with Fish and Wildlife Service or National Marine Fisheries Service. 

At their best, they may take into account a wide range of relevant issues. But they 

are still plans, not commitments. They are subject to the whims and preferences of 

the people writing them. There is no guarantee that they will actually be funded 

and implemented. And they have much less rigor and enforceability than substantive statutory mandates such as the critical habitat provisions of the Endangered Species Act. 

The United States already has enough procedural environmental laws to give us 

a very good idea of their advantages and limitations. We have the National Environmental Policy Act, the Federal Land Policy Management Act, the National Forest 

Management Act, and the Emergency Planning and Community Right to Know Act, 

to name a few. These statutes serve the useful functions of requiring Federal agencies to jump through specified procedural hoops, to receive comments from concerned citizens as part of their planning, and to take environmental considerations 

into account in their decision making. But the United States Supreme Court has 

consistently held that these procedural statutes do not mandate correct decisions, 

or the most environmentally favorable plans—only that the correct procedures be 

followed. Plans made under these acts are, to a very great extent, entrusted to the 

discretion of the planners. As the Court has said, only uninformed, not unwise, decisions are prohibited. The planners are not required to accept the advice they receive 

from other agencies or concerned citizens, only to collect it and report it, perhaps 

with some comment for the record of decision. And the plans and decisions made 

under these procedural statutes are subjected only to the most deferential standard 

of judicial review when challenged in court. As the Chevron case and its many progeny have held, so long as the Federal agency plan or decision is not ‘‘arbitrary and 

capricious, or an abuse of discretion,’’ it will not be overturned by a court. 

In stark contrast to these planning statutes, the Endangered Species Act has been 

held to mean exactly what its exacting substantive language says it means. The Supreme Court, in a series of cases beginning with TVA v. Hill, 437 U.S. 153 (1978), 

has recognized the intent of Congress to assign preeminent importance to preserving 

life under the Endangered Species Act. Even when it costs hundreds of millions of 

dollars, or halts a massive Federal project, the value of preserving threatened and 

endangered species is greater. And one reason why is that there is no remedy for 

a species driven into extinction. No amount of money, no mitigation measures, can 

ever restore a species once it becomes extinct. Each of the 1.75 million species on 

Earth known to us today is one of a kind, the end product of millions of years of 

adaptations to specific environmental conditions. Each species is absolutely unique, 

and absolutely irreplaceable. Extinction of any species is an irreversible, irremediable loss, different in kind and not merely in degree from the kind of losses sought 

to be prevented by all other environmental laws, from the Clean Air Act to the Resource Conservation and Recovery Act. 

The Endangered Species Act defines critical habitat in part as ‘‘the specific areas 

within the geographical area occupied by the species, at the time it is listed...on 

which are found those physical or biological features (I) essential to the conservation 

of the species and (II) which may require special management considerations or protection....’’ The proposal seeks to codify Integrated Natural Resources Management 

Plans as, by definition, satisfying the ‘‘special management considerations or protection’’ clause of this provision. But this confuses the threshold definition of critical 

habitat with the legal effect of critical habitat designation. The Endangered Species 

Act requires substantive steps to be taken with regard to critical habitat once it is 

designated, including the avoidance of any harmful alteration of that habitat. It 

does not merely require ‘‘special management considerations or protection,’’ to be 

left to the discretion of any departmental secretary in his or her management plans. 

This is a fundamental flaw in the proposed exemption. It is, in part, the need for 

‘‘special management considerations or protection’’ that is a prerequisite for an area 

to be designated as critical habitat. This is very different from the legal effects of 

such designation once it takes place. 

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The world is now on the brink of, and very likely in the midst of, our sixth mass 

extinction. The five previous mass extinctions, during which huge numbers of 

species—up to 95 percent of all life on Earth—went out of existence in a short span 

of time, all took place before human beings came on the scene. We have an air-tight 

alibi on the first five mass extinctions, but we are primarily responsible for the mass 

extinction now just beginning. Through our deliberate or inadvertent alteration or 

destruction of enormous amounts of critical habitat, we have severely jeopardized 

at least 40 percent of all known species now in existence on the planet. 

For each species, there is a point at which the number of reproductively capable 

individuals is so low, or the gene pool is so depleted, or the amount of suitable 

habitat is so small, that the species becomes doomed to extinction. This tipping 

point varies from species to species. We know so little about so many of the 1.75 

million so-called known species in existence today that it would be more accurate 

to say that we know these species by name alone. For many of them, we have virtually no knowledge of their life cycle, ecological significance, physiological needs, 

genetic characteristics, or behavioral patterns. But we do know that species that are 

endemic to only a small geographical area tend to be narrowly adapted to conditions 

there, and that there is a predictable mathematical relationship between habitat reduction and the numbers of species that can be sustainably supported. Simply put, 

as the critical habitat shrinks, the endemic species die out at a proportional rate. 

A 90 percent reduction of critical habitat will cause the eventual extinction of roughly 50 percent of the species that live there. They will not disappear all at once, but 

at some point they will become irreversibly ‘‘committed to extinction.’’ Scientists 

refer to such death-row species as the ‘‘living dead.’’

My book, ‘‘Ark of the Broken Covenant,’’ focuses on the approximately 25 biodiversity ‘‘hotspots,’’ the 1.44 percent of Earth’s landmass that contains all of the remaining habitats of 133,149 identified higher plant species (44 percent of the world’s 

total) and 9,645 non-fish vertebrate species (35 percent of the world’s total). There 

is powerful evidence that these species, and many others, are faced with imminent 

extinction on a scale the world has not seen since the extinction spasm that wiped 

out the dinosaurs. In fact, the best scientific evidence indicates that there may be 

millions of species on Earth that we have never even identified, most of them crowded into these biodiversity hotspots. Like the 40 percent-plus of known species, these 

millions of unknown species are largely endemic to the hotspots. They are found 

there, and only there, and nowhere else on Earth. But their remaining habitat is 

shrinking at an alarming rate. They have already lost 88 percent of their primary 

vegetation and are likely, absent greatly increased conservation efforts, to lose much 

more in the foreseeable future. 

If the question is, ‘‘What’s in it for us?’’ to justify the effort necessary to stop the 

sixth mass extinction, the answer is a great unknown. Just as no one knows with 

certainty how many species are near extinction, and how many species remain to 

be discovered—1 million, 7 million, 15 million—no one can predict which species will 

hold the key to solving crises in the near future or beyond. Is there another penicillin out there waiting to be found? Are there portions of DNA in some yet-to-beidentified species that could revolutionize medicine or food production? Is there 

among these nameless species a cure for AIDS, or SARS, or some other dreadful 

threat to human life that will not arise until centuries from now? We will never 

know if we allow the critical habitats of the world to be destroyed, and along with 

them, an immense share of all life on Earth. 

How do we rationally deal with so much uncertainty in our decision making? In 

‘‘Ark of the Broken Covenant’’ I suggest a method similar to the famous Pascal’s 

Wager, which I call the Hotspots Wager. We need to take into account the consequences, good and bad, of right or wrong decisions on all key variables where the 

actual value is unknown. If we guess right in deciding what to do about each of the 

unknowns, what are the benefits we will reap? And if we guess wrong, what is the 

price we would pay for our error? I do not have time here today to work through 

the entire decision matrix, but suffice it to say that the prudent decision is to bet 

on life. The potential rewards from preserving as much biodiversity as possible are 

enormous, and the potential loss we could face by failing to safeguard key sources 

of medicine, food, and ecosystem services is unfathomably devastating. 

Now is the worst possible time to be contemplating new and wide-open exemptions to the critical habitat protections, in the United States or anywhere else. A 

mass extinction is no time for weakening the few effective legal protections now in 

place in defense of biodiversity. All or part of 3 of the 25 biodiversity hotspots are 

within the United States, and these hotspots would be further imperiled by the proposed exemptions. The United States should be exercising global leadership in 

crafting stronger, more effective legal safeguards for our dwindling biodiversity. Instead, the proposed exemptions would do exactly the opposite. 

122

In nation after nation, all over the world, key habitats are either left completely 

unprotected, or assigned to nothing more than ‘‘paper parks,’’ areas that are in theory protected on paper but in reality are without effective, actively enforced safeguards. Species-specific laws like the Convention on International Trade in Endangered Species (CITES) and the Endangered Species Act are, at best, of only limited 

utility in preventing widespread extinction, because they focus primarily on one 

species at a time, and only on species that are already on or near their deathbed. 

What the world needs is an enforceable, priority-based, proactive, comprehensive 

legal regime aimed at halting the decimation of the planet’s most vital centers of 

species endemism—the biodiversity hotspots. 

The only part of the Endangered Species Act that constitutes a major contribution 

to this goal is the critical habitat section. Critical habitat is the only means by 

which individual species-specific protections can simultaneously shield the places 

where many more species also cling to life. When keystone or indicator species are 

listed, their critical habitat will largely coincide with the habitat necessary to sustain numerous other species as well. It is the heart of the Endangered Species Act, 

the most beneficial aspect of this much-criticized statute. It is the last place we 

should look for opportunities to weaken the Act. 

The Supreme Court has held that the Endangered Species Act Section 9 prohibitions on takings include habitat alteration that harms listed species. In the case of 

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 

(1995) the Court recognized that indirect harm to listed species through impacts on 

their critical habitat is forbidden. Part of the Court’s reasoning was derived from 

one of the ‘‘central purposes’’ of the Endangered Species Act, as stated in Section 

2 of the Act, specifically, ‘‘to provide a means whereby the ecosystems upon which 

endangered species and threatened species depend may be conserved....’’ As the 

hotspots concept makes clear, it does no good to enact an Endangered Species Act 

and then leave the endangered species legally homeless. 

When critical habitat is designated in the first place, the Secretary of the Interior 

or the Secretary of Commerce is given latitude to consider impacts of such designation on military readiness. As Section 4(b)(2) of the Endangered Species Act now 

provides, the Secretary ‘‘shall designate critical habitat, and make revisions thereto...on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat.’’ This language is sufficiently expansive to allow considerations of military readiness to exclude certain areas from critical habitat designation at the outset. And even after critical habitat is designated, the Act currently satisfies all realistic concerns related to national security. 

The Endangered Species Act already has an ‘‘exemption for national security reasons’’ in Section 7(j) that directs the Endangered Species Committee to grant such 

an exemption when and if it truly becomes necessary, in the opinion of the Secretary of Defense, to provide relief for the military. Unlike the proposal now under 

consideration, this provision is properly reserved for a case by case determination 

with involvement from a high-level, largely independent group. The broader Endangered Species Committee option has rarely been invoked for any reason whatsoever 

during the decades since it was added to the Act, and the Committee has even more 

rarely actually granted an exemption. More specifically, I am not aware of any instance in which the Secretary of Defense has exercised the Section 7(j) option for 

a national security exemption. This is evidence that national security exemptions 

from the Endangered Species Act have never been needed and have never been justified, even in the opinion of the Secretary of Defense. There is certainly no need 

for a new, sweeping, permanent exemption for the Department of Defense. 

Thank you for the opportunity to testify at today’s hearing. With your permission, 

at this point I would like to submit, for the hearing record, my 2001 Hastings Law 

Journal article entitled ‘‘Preserving the Womb of the Unknown Species With 

Hotspots Legislation,’’ and my 2001 Georgetown International Environmental Law 

Review piece entitled, ‘‘Fiddling Around While the Hotspots Burn Out.’’ I would be 

happy to answer any questions you may have. 

Mr. GILCHREST. Without objection, that will be submitted for the 

record. Thank you very much. 

Miss Steuer, thank you for coming. 

123

STATEMENT OF KAREN STEUER, SENIOR POLICY ADVISOR, 

NATIONAL ENVIRONMENTAL TRUST 

Ms. STEUER. Thank you, Mr. Gilchrest. 

Mr. Chairman and members of the Committee, my name is 

Karen Steuer. I am a senior policy advisor for the National Environmental Trust. 

Unlike members of the Administration who couldn’t speak to the 

bill, or for anybody besides their own departments, I can tell you 

that I am testifying today on behalf of organizations who represent 

millions of Americans, from Maine to California, and we do have 

a position on the bill. I’m afraid we’re opposed to it. But we do appreciate the Committee’s assertion of its jurisdiction over the DOD 

proposals and the opportunity to testify today. 

Because the Committee’s bill would now apply DOD’s proposals 

to activities undertaken by any citizen or corporation of the United 

States, we believe it’s critical that they now be considered and addressed as part of a comprehensive MMPA reauthorization. The 

DOD bill is not the place for this kind of legislation. 

When the MMPA was last reauthorized in 1994, I was the legislative staff responsible on behalf of Congressman Gerry Studds, 

who Mr. Gilchrest will remember, and who was at that time the 

Chairman of the former Merchant Marine and Fisheries Committee 

which had jurisdiction over both the MMPA and the ESA. 

I have to plead guilty on the harassment definition, because it 

was during the 1994 reauthorization that the current definition of 

‘‘harassment’’ was added to the Act. I want to point out that it was 

added at the request of the scientific community. The language was 

worked out with many members of the scientific community, in a 

process that involved all stakeholders, not only scientists but Alaskan Inuit communities, the oil and gas industry, and fishermen. 

The harassment definition is one of the core provisions of the 

MMPA. It is the threshold for applying for a permit under the 

MMPA in many cases, as we’ve heard today. We would strongly 

urge Congress not to amend this language without a thorough review of all the possible options and the consequences of those options. 

It is our view that the characterizations presented today regarding the harassment definition, and some of the other problems with 

the MMPA, do not arise from ambiguities in the statutory language 

but instead reflect process problems residing within the wildlife 

agencies and between those agencies and DOD in particular. These 

problems include inconsistency in reviewing permit applications, 

conflicts in the process that dovetails the MMPA with NEPA, and 

lack of cooperation among the agencies. 

One of the best examples of these ambiguities lies in efforts to 

protect North Atlantic right whales, the most endangered of all the 

large whales and a species which occurs almost exclusively in U.S. 

waters from Maine to Florida. While NMFS regulates fishermen, 

whose gear causes approximately half of the human-induced mortalities of this species, the agency has to date made no attempts 

to regulate shipping traffic, even though ship strikes have been 

documented to cause just as many right whale deaths. And while 

the Navy has conducted bombing exercises using live ordnance in 

right whale habitat, with right whales and other endangered 

124

species present, without preparing an environmental impact statement, a permit application by the leading institution conducting 

right whale research is undergoing a full EIS review regarding the 

impacts of their research. 

These are not problems that will be corrected by changing the 

harassment definition, but by clarifying and standardizing the 

process for permit reviews. If anything, the highly ambiguous language of the proposed definition, and in particular the terms ‘‘significantly altered and abandoned’’ will result in even more confusion and even more legal action, since their meaning varies from 

species to species and from behavior to behavior, and even from 

season to season. Nothing will be gained, and marine mammal conservation will undoubtedly suffer as a result. 

We also agree with Dr. Ketten regarding the potential impacts 

of the last paragraph of the proposed definition, which would hold 

marine mammal scientists to a tougher standard than that used for 

review of other potentially far more damaging activities. In fact, 

Mr. Gilchrest, that paragraph would not impact jet ski operators 

because the language is about activities that are directed toward 

a marine mammal stock and marine mammal population. It would 

therefore impact marine mammal scientists far more than jet ski 

operators. 

Finally, we want to bring to the Committee’s attention, as has 

been mentioned previously, that the proposed harassment definition is very different from the definition suggested by the National 

Research Council. We do agree that the term ‘‘biological’’ in terms 

of ‘‘biologically significant activities’’ should be included in consideration of permit applications, but I’m afraid we don’t agree that just 

adding that term to the existing definition as proposed by NMFS 

will resolve anything, because it would retain some of the very ambiguous terms ‘‘significantly altered and abandoned.’’ 

The Committee’s bill also expands to all constituencies DOD’s 

proposal to create a separate authorization process for military 

readiness activities, but as noted earlier, eliminates key conservation elements by deleting existing limitations regarding small numbers and impacts within a specified geographic region. 

Retention of these limitations, we believe, is a vital component 

of the conservation principles embodied in the MMPA. In particular, geographic regions serve different biological purposes for 

different species, and actions that have little or no consequence on 

one species within a specified region may have grave consequences 

for another, and those consequences may vary within that region 

from spring to summer and summer to fall, depending on which 

species are present and what activities are underway. 

These limitations were intended, when added to the Act in 1994 

to provide us with a means of assessing impacts in the ocean environment in a realistic way, and in a limited way. We believe these 

terms should be retained, but they need to be defined, and NMFS 

has not defined them. That’s part of the problem. 

In conclusion, DOD should not be exempt from complying with 

laws intended to apply equally to all Americans, and the public 

should not be asked to shoulder the additional conservation responsibilities that will certainly result if the original DOD amendments 

are enacted. But to use these problems or NMFS inconsistencies in 

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the review process as an excuse to propose sweeping changes to the 

MMPA, outside of a reauthorization process, is irresponsible and 

would greatly weaken an important conservation law, and a successful one, that has been in place since 1972. 

We urge the Committee to strip these provisions from the DOD 

authorization bill and consider them in the context of the general 

MMPA reauthorization debate. We would like to continue to work 

with you and the agencies in continuing the Act’s long and very 

successful history of marine mammal conservation. 

Thank you very much. 

[The prepared statement of Ms. Steuer follows:]

Statement of Karen Steuer, Senior Policy Advisor, National Environmental 

Trust, on behalf of the National Environmental Trust, Greenpeace, 

Humane Society of the United States, International Wildlife Coalition, 

Natural Resources Defense Council, Oceana, Sierra Club, The Ocean 

Conservancy, and World Wildlife Fund 

Mr. Chairman, Congressman Rahall, and Members of the Resources Committee: 

My name is Karen Steuer. I am a Senior Policy Advisor to the National Environmental Trust, and I am testifying today on behalf of organizations who represent 

millions of Americans from Maine to California. My testimony will focus on those 

provisions of the National Security Readiness Act that would amend the Marine 

Mammal Protection Act (MMPA). It is our hope that this testimony will also serve 

to address the Committee’s questions regarding whether the proposed changes 

would benefit the scientific community and help to clarify the effect of permitted activities, while still maintaining protection for marine mammal populations It is our 

hope that this testimony will also serve to address questions regarding whether the 

proposed changes would benefit the scientific community, and help to clarify issues 

surrounding the current permitting process as they relate to both permit applicants 

and affected marine mammal populations. 

The groups on whose behalf I am testifying today appreciate the Committee’s assertion of its jurisdiction over the Department of Defense (DOD) proposals and the 

opportunity to testify. Although the changes to the MMPA proposed for the National 

Defense Authorization Act for Fiscal Year 2004 were restricted to activities undertaken by the Department of Defense, the Committee’s bill would apply the proposed 

amendments to the definition of harassment and the incidental take authorization 

process to activities undertaken by any citizen of the United States. Now that it is 

apparent that these changes are intended to apply broadly, we believe that it is 

even more important that they be considered and addressed as part of a comprehensive MMPA reauthorization bill, as opposed to the National Security Readiness Act 

of 2003. In that context, we stand ready to work with you, other members of your 

Committee, relevant Federal agencies, and representatives of other affected constituencies, on this and other issues that have arisen since the Act was last reauthorized in 1994. not in the DOD authorization legislation. 

Reauthorizations of successful and popular environmental laws should not be undertaken lightly. When the MMPA was last reauthorized in 1994, I worked for Congressman Gerry Studds, who was at that time the Chairman of the former Merchant Marine and Fisheries Committee, with jurisdiction over both the MMPA and 

the Endangered Species Act. It was during the 1994 reauthorization that the current definition of ‘‘harassment’’ was added to the Act—largely to address concerns 

raised by the scientific community. The process leading up to that reauthorization 

was bipartisan, extensive, and involved stakeholders from the ocean resource extraction industries, Alaskan Inuit communities, commercial fishermen, environmental 

organizations, and scientists. The result was a bill introduced by Congressman 

Studds and Congressman Young with strong bipartisan support. Some of the more 

senior Members of this Committee were members of the Merchant Marine and Fisheries Committee at that time, and will recall the effort that went into the current 

statutory language. 

This history is particularly relevant to our discussion today because it has direct 

bearing on the appropriateness of the proposed changes to the definition of harassment, one of the core provisions of the Act and the one that establishes the threshold for applying for a permit under the MMPA. Congress should not amend this definition without a thorough review of all possible options and the consequences of 

those options. It is our view that the arguments and characterizations raised by 

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DOD in relation to harassment have been misleading. They do not arise from the 

language of the statute, but instead reflect process problems residing within the 

wildlife agencies and a lack of willingness on DOD’s part to work with the agencies 

to resolve those problems. 

The Harassment Definition 

In 1994, representatives of the marine mammal research community approached 

the Committee regarding what they felt was unjustified scrutiny by the National 

Marine Fisheries Service in relation to permits for scientific research on marine 

mammals. The Committee was sympathetic to their concerns, and following consultations with NMFS, the Marine Mammal Commission and the scientific community, Congress created a two-tiered harassment definition, as follows: 

‘‘The term ‘harassment’ means any act of pursuit, torment, or annoyance which—

(Level A) has the potential to injure a marine mammal or marine mammal stock in the wild; or 

(Level B) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or 

sheltering. 

Now the Congress is confronted by an attempt to change the definition on the 

part of DOD and some segments of the scientific community whose research incidentally takes marine mammals. The Administration claims that the current definition 

of harassment is overly broad and ambiguous, and has proposed the following alternative: 

‘‘The term harassment means any act which—

(Level A) injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild; or 

(Level B) disturbs or is likely to disturb a marine mammal or marine 

mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, 

feeding, or sheltering to a point where such behavioral patterns are abandoned or significantly altered; or 

is directed toward a specific individual, group, or stock of marine mammals in the wild that is likely to disturb the specific individual, group, or 

stock of marine mammals by disrupting behavior, including, but not limited 

to migration, surfacing, nursing, breeding, feeding, or sheltering. 

The critical issue now is the need to evaluate what changes—if any—are needed 

to the definition versus what action must be undertaken to improve implementation 

of the permit and regulatory process. It is our view that any problems that do exist 

are not due to ambiguities in the statutory language, but to fundamental process 

problems, including: inconsistency in reviews of permit applications, conflicts in the 

process that dovetails the MMPA with the National Environmental Policy Act, and 

a lack of cooperation among Federal agencies. If the problem lies in process issues 

that go uncorrected, changing the definition is likely to result only in more confusion, more delays in granting permits, and more lawsuits. Nothing will be gained, 

and marine mammal conservation will undoubtedly suffer as a result. 

Unfortunately, regulation and permit processing under the MMPA appears to 

vary from one stakeholder group to another, which may have led to some of the concerns raised by the scientific community regarding the harassment definition. This 

concern was noted in a report produced by the National Research Council (NRC) in 

2000, whose recommendations have often been used—and misused—in the context 

of the current effort to change the definition. In that report (Marine Mammals and 

Low–Frequency Sound: Progress Since 1994) the NRC stated that ‘‘Although Congress intended to provide less stringent means for marine scientists to obtain permission to unintentionally harass marine mammals to an insignificant degree, 

NMFS has applied its regulations most stringently to science. 

One of the best examples of this inconsistent approach to processing permits lies 

in efforts to protect North Atlantic right whales, the most endangered of all the 

large whales and a species which occurs almost exclusively in U.S. and nearby Canadian waters. While NMFS regulates fishermen, whose gear causes approximately 

50% of the human-induced mortalities of this species, the agency has to date made 

no attempts to regulate shipping traffic, even though ship strikes have been documented to cause just as many right whale deaths. At the same time, the Navy continues to conduct bombing exercises using live ordnance in known habitat for right, 

humpback, fin, and minke whales in the Gulf of Maine without informing NMFS, 

while a permit application by the leading institution conducting right whale research is undergoing a full environmental impact statement. 

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These are not problems that will be corrected by changing the harassment definition, but only by clarifying and standardizing the process for permit reviews. If anything, the highly ambiguous language of the proposed definition, adding such terms 

as ‘‘significantly altered’’ and ‘‘abandoned,’’ will result in even more confusion and 

even more legal action, since their meaning varies from species to species and from 

behavior to behavior. 

We would also like to point out that the harassment definition proposed by the 

Administration would reinforce the practice of holding scientists to a much higher 

and tougher standard than that used for review of other activities with potentially 

far more serious consequences for marine mammals. The definition proposed here 

would create a two-tiered standard: one that applies to marine mammal researchers 

(harassment ‘‘directed toward a specific individual, group or stock of marine mammals’’), and one that applies to other scientists and activities such as oil and gas 

exploration, vessel traffic, and DOD exercises. Paradoxically, the result would be 

that research which stands to benefit marine mammals would be held to the tougher standard. We find it incomprehensible that, in light of the concerns raised to date 

by some members of the scientific community, the Administration would propose 

this change in the definition. We suspect that those scientists who have supported 

this language are not aware of the consequences for their own permit reviews. 

Because the Committee has converted DOD’s proposed changes into broad MMPA 

amendments, we think it is crucial that the Committee consider whether those 

changes were ever actually warranted. Attached to our testimony is a chart clarifying that since the current definition was adopted in 1994, DOD has never been 

denied a permit or incidental take authorization by NMFS. In Congressional testimony the Navy has frequently referred to fictitious situations that have no bearing 

on the actual language or the agency’s interpretation of the law. The often-used scenario in which a naval vessel is prevented from leaving the harbor because a sea 

lion on the neighboring beach will turn its head to watch the boat simply bears no 

resemblance to the type of activity that NMFS actually regulates. Typical of these 

activities are missile firings, which cause pinnipeds hauled out on nearby rocks and 

beaches to stampede, killing their pups; and ship-shock tests, which involve detonations of thousands of pounds of high explosives. NMFS has never required a permit 

of an activity that merely caused a sea lion to turn its head. This is a spurious 

issue. 

Amending the Authorization Process 

The MMPA currently provides several avenues for exemptions from the moratorium on taking of marine mammals ‘‘

• The broadest, found in section 118 of the law, was written in 1994 and applies 

specifically to commercial fishing operations that incidentally catch marine 

mammals in fishing gear. 

• ‘‘Small take permits’’ are authorized for purposes of scientific research, public 

display, or enhancing the survival or recovery of a species or stock. The Act 

specifies some of the conditions under which such permits can be granted; process and additional conditions have been addressed by regulation. 

• In 1994, Congress also added exemption provisions for taking ‘‘small numbers’’ 

of marine mammals and for incidental harassment authorizations. These provisions were added due to initial concerns raised by groups such as the oil and 

gas industry. They were intended to provide a streamlined mechanism by which 

proponents such as the industry, institutions conducting oceanographic or seismic research, or the Department of Defense could obtain year-long 

authorizations for projects in which any takings would be by incidental harassment only. The responsible agency—usually NMFS—is required to publish a notice in the Federal Register of any authorization request within 45 days of its 

receipt. After a 30-day public comment period, the agency has 45 days to issue 

the authorization or deny. By law, the entire process can take no longer than 

120 days. 

DOD proposed to amend this last provision by creating separate incidental take 

authorization processes for military readiness activities. Although the DOD language and the Committee’s bill partially tracks the existing provisions, it eliminates 

key conservation elements from the process by striking the limitations regarding 

‘‘small numbers’’ of marine mammals and impacts within a ‘‘specified geographic region.’’ The only conceivable reason for DOD to want these provisions eliminated 

would be if the Department intends to seek global exemptions to disturb, injure, or 

kill unlimited numbers of marine mammals, or to extricate itself from current lawsuits by seeking a legislative remedy. The Committee has now expanded this ill-conceived amendment to apply to all activities and all proponents, drastically weakening the MMPA in the process. 

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Retention of these limitations is a vital component of the conservation principles 

embodied in the MMPA. Under the current language, regions of operation and numbers of animals impacted are drawn as narrowly as possible to accomplish the proposed activity; environmental review then takes place on that basis. The status of 

marine mammal conservation varies from species to species and from ocean to 

ocean, and requires that activities be considered on a case-by-case basis. Geographic 

regions serve different biological purposes for different species, and actions that 

have little or no impact on one species within a specified region may have grave 

consequences for another. Similarly, given that many marine mammal species are 

migratory, action judged to have serious conservation implications during one season may be of no consequence if undertaken within the same geographic region during a different time of the year. If the current limitations on ‘‘specified geographic 

regions’’ and ‘‘small numbers’’ are eliminated, it will prove almost impossible to conduct an adequate assessment of impacts. 

Proposal for Categorical Exemption 

Finally, the Committee’s bill proposes language allowing the Department to grant 

itself a categorical exemption to the MMPA for any ‘‘category of actions’’ necessary 

for national defense. Exemptions would run for two years, but be endlessly renewable for additional two-year periods. Additionally, while exemptions in other environmental statues such as the Clean Air Act give discretion directly to the President 

of the United States, the language contained in the Committee’s bill vests authority 

directly in the Secretary of Defense, and lacks the Congressional reporting provision 

found in other statutes. 

Moreover, the exemption proposed for the MMPA is not conditioned on any initial 

stage of environmental review. Even activities that are conducted in peacetime and 

whose mitigation would not have a significant adverse effect on readiness could fall 

outside of the process and be authorized under the MMPA, receiving no mitigation, 

monitoring, or even basic review. The effect of this phrasing is to remove any meaningful accountability or oversight on the granting and renewal of exemptions—a serious problem that is only compounded by the lack of a Congressional reporting provision. 

Furthermore, the exemption may apply not only to any single action ‘‘undertaken 

by the Department of Defense or its components,’’ but to any ‘‘category of actions’’ 

as well. Its scope is therefore much broader than that of exemptions available under 

the Endangered Species Act (16 U.S.C. sec. 1536(j)) and other statutes, which are 

limited to individual activities, technologies, or exercises. Through this language, 

the provision allows for sweeping application, even to potentially harmful activities 

that in themselves would not necessitate an exemption but are nonetheless contained within a broader category. 

In supporting such an exemption, DOD has nowhere addressed the fact that considerable flexibility is already available under the Armed Forces Code. Under 10 

U.S.C. sec. 2014, DOD may seek special accommodation and relief from any agency 

decision that, in its determination, would have a ‘‘significant adverse effect on the 

military readiness of any of the armed forces or a critical component thereof.’’ This 

provision has never been invoked with regard to the MMPA, presumably because 

DOD’s requests for authorization under the Act have never been denied and because 

any mitigation prescribed by the wildlife agencies has not been judged to have a 

significant adverse effect on readiness. 

DOD has yet to demonstrate any real need for relief from the current process, and 

to extend the Department’s weakening provisions to all constituencies appears to be 

nothing more than a general attempt to weaken an important environmental law 

in place since 1972. The Department’s record of environmental review under the 

MMPA is one of general success, allowing for public participation, scientific analysis, 

and the prescription of mitigation and monitoring while protecting the military’s 

need for readiness. No application submitted to the wildlife agencies by the Defense 

Department has been denied and most have been approved within the expected 

timeframe which, in the case of incidental harassment authorizations, is approximately four months. 

Although DOD continues to reiterate its intention to fully comply with the intent 

and spirit of the MMPA, a closer examination of recent events indicates otherwise. 

As noted earlier, on several occasions, the Navy has either: conducted potentially 

dangerous exercises without informing NMFS, thus denying the agency the 

opportunity to evaluate ‘‘no-take’’ findings in associated Navy environmental assessments; given minimal notice of impending activities, resulting in inadequate opportunity for agency review; or consulted with NMFS but refused to implement even 

basic measures for mitigation and monitoring of activities that are potentially lethal 

or injurious to marine mammals. 

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Conclusion 

DOD should not be exempt from complying with laws intended to apply equally 

to all Americans, and the public should not be asked to shoulder the additional conservation responsibilities that will result if the original DOD amendments are enacted. But to use DOD’s lack of cooperation or NMFS inconsistencies in the review 

process as an excuse for the Committee to propose sweeping changes to the MMPA 

outside of the reauthorization process is simply irresponsible. 

We urge the Committee to strip these provisions from the DOD Authorization bill 

and consider them in the context of the general MMPA reauthorization debate. Our 

combined organizations would be happy to continue to work constructively with the 

wildlife agencies and other constituencies on alternative approaches to improving 

MMPA processes and to continuing the Act’s long and successful history of marine 

mammal conservation. 

[An attachment to Ms. Steuer’s statement follows:]

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Mr. GILCHREST. Thank you very much, Miss Steuer. 

I guess anybody can answer this question, I suppose, but Dr. 

Ketten was the one, and then Miss Steuer just raised it again. 

Could you tell us, in real world terms, the impact of the change of 


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the definition of harassment where the word ‘‘significant’’ is used 

and, Dr. Ketten, where you said ‘‘biologically significant’’. Dr. Hogarth seemed to try to relay to us that the term ‘‘significant’’ was 

defined, it was a clearer definition, and marine mammals could be 

better protected and have less few lawsuits. The difference between 

just using the word ‘‘significant’’ and using the word ‘‘biologically 

significant’’. The NRC term was actually ‘‘meaningful disruption of 

biologically significant activities.’’ Why would that be better than 

just the word ‘‘significant’’? 

Dr. NACHTIGALL. I believe that’s directed to you, Doctor. 

Dr. KETTEN. Gee, thanks Paul. 

In the NRC Panel 2003, we deliberated this statement for a long 

period of time, not because there was not consensus amongst the 

panel but rather to try to get the wording to be explicit. 

The difficulty that we had with just the term ‘‘significant’’ is that 

one then has to weigh what form of significance. Gregory Bateson 

once said that ‘‘a difference is a difference that makes a difference.’’ 

Now, I don’t know if that irritates you nearly as much as it irritates me, but he was trying to say that it is the thing that causes 

you to notice a difference. However, what the source of that difference is is what can be debated by just the term ‘‘significance.’’ 

Within research on ecology and behavior, and certainly in population biology, we talk about biological significance explicitly, as I 

said, as a term of art, not to mean an individual that is impacted 

but, rather, at what point do the number of individuals—whether 

you’re dealing with breeders or mating behavior and individuals involved in that—at what point does an alteration have a biologically 

significant impact at the species or the population level. So it is a 

conventional scientific term, and by adding the term ‘‘biological’’ to 

it, we are adding a criterion that we think is important and was 

the original intention of the MMPA. 

Mr. GILCHREST. Thank you. Does anyone else want to comment 

on that? 

Ms. STEUER. If I may, Mr. Chairman, I think the other point that 

should be raised here is that where the currently proposed definition, the Administration’s definition and the one that’s used in 

H.R. 1835, use the term ‘‘significant’’, it is to describe an alteration 

of the behavioral pattern, not to describe the behavior itself. I believe what Dr. Ketten was trying to get at is that where that term 

is important is when you’re looking at the behavior. As currently 

proposed, the Administration would use the term ‘‘significantly altered’’. What does that mean? Does significantly mean a little bit 

altered, does it mean a lot altered, does it mean abandoned for 20 

minutes, does it mean abandoned for 3 hours, does it mean permanently abandoned? It’s a very ambiguous approach to try to define 

an activity. 

Mr. GILCHREST. Thank you. 

One other quick question. On the Level 3 harassment, Dr. 

Ketten, you seemed to indicate that the language would make it 

very difficult and make it more difficult now for researchers to get 

permits. Can you explain that and maybe suggest a language 

change? 

I thought the purpose of some of this is to have a better permitting process to do more, if I can use the word, significant research, 

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and a broader language of harassment so we can get at some of the 

other harassment problems that we don’t get out now, and that 

was my understanding of Level 3 harassment but you’re disagreeing with that. 

Dr. KETTEN. I understand, sir, and I agree with your concept of 

adding the third paragraph. But as Ms. Steuer has said, and I had 

said, the difficulty that I see in it is how it will be interpreted by 

the public, and I see it as fostering lawsuits or preventing permits 

entirely. Consider that virtually every single experiment done is directed at an individual animal, whether it’s a field experiment or 

a captive experiment, but as Ms. Steuer pointed out, jet skis do not 

direct their activity, typically, toward a dolphin. They provide a 

harassment, but not necessarily a directed one. 

I see paragraph (ii) as including these clauses, since it says ‘‘a 

marine mammal or marine mammal stock’’, that is, an impact on 

an individual can be seen to be covered under (ii), but it doesn’t 

explicitly say an activity directed at. I would leave that to the regulatory agencies in reviewing an application to determine if an activity is harmful or not. I see it as being covered under (ii). Therefore, 

I frankly have not at the moment, up to the moment, given any 

thought to revising (iii), but rather removing it. 

Mr. GILCHREST. I see. 

Dr. KETTEN. I will consider that and see if I can come up with 

better concerns, or better statements for these concerns. 

Mr. GILCHREST. Thank you very much. 

Mr. Udall. 

Mr. TOM UDALL. Thank you, Chairman Gilchrest. 

To Professor Kunich, in your testimony you say, ‘‘the world is 

now on the brink of and very likely in the midst of our sixth mass 

extinction’’. Could you please elaborate on this and why is it important to protect habitat on DOD lands and all Federal lands? 

Mr. KUNICH. Yes, sir. There is evidence from studies on islands, 

primarily the study of islands biogeography, that shows there’s a 

predictable relationship between habitat reduction and eventual extinction of species. Roughly speaking, a 90 percent habitat reduction will cause an eventual extinction of 50 percent of the species 

that are found there. 

That doesn’t mean they go extinct right away. They become committed to extinction. Scientists have a term, ‘‘the living dead’’, 

which sounds like it comes from a bad horror film, but it refers to 

species that are doomed to extinction because their numbers have 

been so depleted, their genetic diversity has been so reduced, that 

eventually they are going to die out, no matter what. 

As the habitat for these endemic species is reduced, a similar 

thing happens. For species that are ubiquitous, this doesn’t occur, 

but for species that are narrowly adapted to a specific small area, 

as that habitat shrinks, predictable numbers of species go extinct 

as well. 

Now, why is this a concern for us? It’s a concern, even on DOD 

lands, because the species that are found there could very well hold 

the key to medicinal advances, genetic engineering, techniques that 

could be the answer to SARS or some dread disease in the future, 

or to health or medicinal or agricultural concerns, and we can’t afford to lose any of these raw materials. 

133

By the way, the only complaint I really heard from the military 

people during the previous four-and-a-half hours is that they are 

being subjected to too many lawsuits. But I respectfully suggest 

there is nothing in the proposed change here that will reduce lawsuits. It will transform the substantive section of the ESA into a 

procedural one, but it won’t exempt it from judicial review. NEPA, 

the Federal Land Policy Management Act, the National Forest 

Management Act and all the other planning and procedural statutes are fully subject to endless litigation. There are many hundreds of cases on all of them, and they are just as burdensome to 

defend against as cases under the ESA as it now exists. 

Mr. TOM UDALL. The hot spots that you identified and talked 

about in your book, are some of those contained within the Continental United States, and Alaska and Hawaii? 

Mr. KUNICH. Yes, sir, Congressman Udall, three of them are, at 

least in part. There’s the Hawaiian Islands hot spot, the California 

floristic province, which is a portion of California— 

Mr. TOM UDALL. Neil, you’ve got to listen to this. This is about 

Hawaii. 

Mr. KUNICH. Hawaii is one of the hot spots. 

Mr. TOM UDALL. You are a rich biological hot spot. I know you’re 

more interested in those brownies, but listen here. 

[Laughter.] 

OK. Go ahead. 

Mr. KUNICH. There’s the Hawaiian Islands, which are part of a 

larger Polynesia/Micronesia hot spot. There’s the California floristic 

province, which extends down to Baja, and then there’s the Caribbean hot spot, which includes Puerto Rico and the southern tip of 

Florida. Those three are at least partially in the United States. 

Mr. TOM UDALL. I wanted to ask you about critical habitat designations versus INRMPs. What additional protections do critical 

habitat designations offer that an Integrated Natural Resources 

Management Plan does not? 

Mr. KUNICH. The primary additional protection they offer is that 

they are substantive provisions with real enforcement teeth under 

the ESA. If we substitute INRMPs, no matter how good the intentions are of the people who are writing them, implementing and 

drafting these plans, they remain just that. They’re plans and 

there are hundreds of cases under all the other planning statutes 

that show that there’s a very deferential standard of judicial review 

that’s applied to such decisions. NEPA cases, famously, have held 

in the Supreme Court that NEPA does not prohibit unwise decisionmaking but only uninformed decisionmaking. It doesn’t mandate a particularly good result, just that you go through the right 

procedural hoops. And you need more than that to adequately protect critical habitat. 

Mr. TOM UDALL. On the issues of species protection and agency 

mission, is species conservation consistent with the ‘‘primary 

purposes’’ of agencies like the Forest Service, the BLM, the Bureau 

of Reclamation? Wouldn’t there be massive litigation over primary 

purposes? 

Mr. KUNICH. There certainly would be, in the Organic Act that 

establishes the forests, the national forest system, for example. The 

primary purpose of the forest system is silviculture, logging. It’s 

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not conservation. That’s in the Act. Of course, now we’ve become 

accustomed to treating national forests as if they were enclaves for 

recreation and preservation, but that’s not what’s in the Organic 

Act. There would be a tremendous amount of litigation over whether something is either the primary purpose or is consistent with it, 

and that in no way will be something that will minimize litigation. 

Instead, it will invite much more. 

Mr. TOM UDALL. I also would like to thank the entire panel for 

your patience, and I thank the Chairman, both Chairmen that are 

here. 

Mr. GILCHREST. Thank you, Mr. Udall. 

Mr. Pombo. 

The CHAIRMAN. Thank you. 

Mr. Kunich, just to start with you, I guess this is a follow up on 

that last question. You got me to thinking. Do you think that the 

Endangered Species Act should be the primary function of these 

agencies, whether it’s the Forest Service or DOD or the Department of Interior? Do you believe that, in carrying out the implementation of the Act, should that be the primary function of those 

agencies? 

Mr. KUNICH. No, sir. But a string of Supreme Court cases, beginning with Tennessee Valley Authority versus Hill, have held that 

no matter how onerous the burden might be on an action agency 

of complying with the Endangered Species Act, the Act means what 

it says, and if it means stopping the Teleco Dam project on the eve 

of throwing the switch, so be it. The Court has famously said, if 

Congress didn’t intend that, they’re free to amend it. But as it’s 

written, that is exactly what it requires. There is nothing in the 

mission statement or the Organic Act of any of these agencies that 

makes endangered species preservation their primary purpose. 

The CHAIRMAN. No, there’s nothing in their generic acts that 

does, but court decisions, as you have pointed out, have made it the 

primary function of these agencies, that in carrying out their job, 

whatever that may be, they have to abide by the Act, regardless 

of what happens. 

Mr. KUNICH. They have to abide by the Act, but they have to 

abide by RCRA, CERCLA, NEPA and all the other Acts, too. That 

doesn’t mean those Acts become their primary purpose. It’s just 

that they have to comply with them. 

The CHAIRMAN. Yeah, they do. I think you accurately pointed out 

that, because of a number of court cases, meeting the Endangered 

Species Act becomes their primary function. 

Mr. KUNICH. It’s an important part of their mission. They do 

have to invest a lot of resources into complying with it, that’s true. 

The CHAIRMAN. Specifically, in dealing with DOD, do you see 

that as a problem in carrying out their primary mission, if in carrying out the Endangered Species Act and meeting the requirements of the Endangered Species Act, if that limits their ability to 

carry out their primary function? Do you see that as a problem? 

Mr. KUNICH. I don’t think that has ever happened, sir. As the 

General testified earlier, he testified that their training was at 

about 68 percent effectiveness, but they never went for a 7(j) exemption, they never in any way even tried to go down that road, 

even though that’s been in the ESA for many years. They don’t 

135

even have a procedure for asking for it. Apparently it didn’t get to 

the point where it was really a serious problem. 

If that’s the case— 

The CHAIRMAN. If I could back you up a little bit, I think it has 

become a serious problem. But personally, I’ve got a problem with 

them asking for a 7(j) exemption, because if you do care about protecting species, that is the worst possible scenario that you could 

lay out, is them getting an exemption. 

Mr. KUNICH. The Endangered Species Committee provisions 

under the ESA don’t give you a blank check to violate the Act. If 

you get an exemption from the ‘‘God Squad’’, there still have to be 

mitigation measures, measures to minimize the harm. It’s just that 

it allows an exemption from a particular penalty provision. But 

there still are protections in place even with a ‘‘God Squad’’ exemption. 

The CHAIRMAN. Not to the extent that there are, under every 

other provision that we’ve talked about— 

Mr. KUNICH. That’s true. 

The CHAIRMAN. —including the INRMPs. 

Mr. KUNICH. That’s true. 

The CHAIRMAN. Miss Steuer, before I run out of time, you talked 

about in your testimony there being other alternatives, other language that we could go forward with on the harassment definition. 

Have you given the Committee or any of the agencies with jurisdiction what some of that alternative language is? Because I 

haven’t seen it. I’m just wondering if you have. 

Ms. STEUER. I’m sorry, Mr. Chairman, that’s actually not what 

I said. What I said was what we need to do is look at eliminating 

the ambiguities in the permit process and in reviews, and in the 

regulatory issues we need to define terms that are causing some of 

the problems that have come up today, terms like ‘‘small numbers’’, 

terms like ‘‘specified geographic region’’. We need to better dovetail 

NEPA processes, with MMPA processes, with ESA processes, that 

clearly are not working well. 

We should be looking at options for programmatic reviews of activities, which would greatly eliminate some of the review burdens 

both on the part of DOD or other constituencies and NMFS. Most 

of that is not being done. What I was suggesting is that we need 

to look at alternatives that would, in my view, resolve the problems 

far more than just changing the definition. 

I am firmly convinced, having gone through this in 1994, that if 

we change the definition to anything that’s been proposed—the Administration’s definition, some of the other options on the table, the 

NRC definition—if we do any of that, without correcting the process problems, we will be back here again in a few years having this 

very same conversation. Obviously, we would all prefer not to do 

that. 

The CHAIRMAN. I happen to agree with you on that point. As you 

know, that has been one of the battles that we’ve gone through 

over the years on this Committee, is changing that process. But I 

have faith in my Subcommittee Chairman, that he’s going to take 

care of that. 

[Laughter.] 

136

Mr. GILCHREST. We’re going to work on it, Mr. Chairman, as we 

go through the process of reauthorizing the Marine Mammal Protection Act, to solve all those definition and process problems. 

I yield now to the gentleman from Hawaii. 

Mr. ABERCROMBIE. Thank you, Mr. Chairman. 

Mr. Chairman, I believe we’re going to have to get to probably 

a vote situation fairly quickly, so this may not be able to go on too 

long. But I wanted to say for the record that I don’t have a conflict 

of interest, as such, I don’t believe, but I certainly want to acknowledge the fact that Dr. Nachtigall, I believe, is one that I am very 

pleased to have in front of the Committee because I believe he has 

an enormous amount of not only information but perspective to 

give in the context of scientific inquiry. It is in that vein, Paul, that 

I would like to ask you for the record—and we’ve talked about it 

beforehand, not specifically what you were going to say but talked 

about this issue on more than one occasion. 

Do you recall my conversation with you, that I was concerned 

that sound science was going to get whipsawed or caught between 

ideology, if you will, and the motivation of certain interests, regardless of how well motivated they are, that the science actually involved would get lost in the process. My hope was that we could 

discover some way perhaps in between taking a sledgehammer, I 

think as Mr. Kildee put it earlier in the day, to existing legislation 

and perhaps finding a way to—I think I used the word stiletto. 

That was probably a bit unfortunate. But some way to zero in on 

what could profitably be done in a scientific way that wouldn’t undermine the essential features of either the Marine Mammal Protection Act or the Endangered Species Act. 

Could you comment on that a little further than your testimony 

does? 

Dr. NACHTIGALL. Yes, I believe I could, if I understand you correctly. 

I believe there is much more that can be done as far as science 

and understanding the issues that we’re dealing with. I do get concerned about the whipsaw that you’re talking about, the fact that 

on one side you have people who don’t want to do anything, that 

essentially science wouldn’t be allowed, and we’re working on the 

intricacies of how that might happen. On the other side, we do 

have to make sure that we do protect the species, particularly the 

marine mammal species that we have, and unfortunately, we know 

very little about those species we’re trying to protect. 

Mr. ABERCROMBIE. Do you think it would be possible—You’ve 

heard some of my questions earlier in the day, and my observations. Do you think it would be possible if the Department of Defense worked up—and I’m trying to get a hold of this memo, by the 

way, that I referred to, because I could not find it, the memo regarding how we could access the question of exemption or regulation before you reach the level of exemption, which I think might 

apply to marine mammal research here, especially where the hearing is concerned. 

Do you think it would be helpful if we tried to find and put into 

place a methodology for that kind of implementation of scientific 

research that would be short of either seeking exemptions or short 

of trying to change the law completely? 

137

Dr. NACHTIGALL. Yes. I— 

Mr. ABERCROMBIE. You don’t really have a process available to 

you right now to be able to appeal to either side, right? 

Dr. NACHTIGALL. That’s true, I don’t really have that process 

available. But I have been able to work very successfully with a 

number of people in regard to assuring that good science does get 

done. I think that’s probably the essence of what I’m talking about 

here. 

Mr. ABERCROMBIE. If we don’t have such a process, if we’re not 

able to implement what the Department of Defense now admits 

that it does not have, even though it has the possibility of doing 

it as already exists in the law, isn’t the only thing that’s going to 

be left then, especially if I understand Dr. Kunich’s testimony correctly, we’re just going to end up in court all the time. 

Mr. KUNICH. Absolutely. 

Mr. ABERCROMBIE. And that there is, in effect, a void right now 

of a process available to try to resolve these issues, not because we 

didn’t anticipate it but because the DOD, to this point, actually 

hasn’t implemented it. 

I’m talking about something short of the ‘‘God Squad’’ thing. It 

is quite clear that, in the memo that I read a portion of to you, that 

they haven’t even begun a guidance yet. If we at least put that into 

effect, wouldn’t you have more of a fighting chance then to be able 

to come forward and avoid having a court dictate to you, because 

you would be able to say to the court, ‘‘Look, we’ve got protocols 

in place here that are quite adequate under the ESA and can meet 

any reasonable standard of addressing the question of whether 

we’re going to harm, injure, et cetera any of the marine mammals.’’ 

Dr. NACHTIGALL. Anything that will be able to lead to the process 

that continues—be able to continue the work—I cited that one instance where there was an experiment that was actually stopped 

because of the fact that somebody was enjoined by the courts to 

stop the very research that really needs to be done. Anything that 

can be done to facilitate that research being done would, in fact, 

be beneficial. 

Mr. ABERCROMBIE. Let me close, Mr. Chairman, because I know 

the vote will come up, by saying that anybody who has seen Dr. 

Nachtigall’s lab, you will realize what has been done. He will testify to that, that even my wife, who did not want to go out there 

because she was afraid she couldn’t stand seeing the dolphins captive, if you will, right? 

Dr. NACHTIGALL. Yes. 

Mr. ABERCROMBIE. Had her mind completely changed by actually 

going out there and seeing what was actually taking place, and understanding the value of scientific research that you’re undertaking. 

Dr. NACHTIGALL. Yes. That was a very good opportunity for us. 

Mr. ABERCROMBIE. And I think that’s probably indicative, Mr. 

Chairman, of what we can do if we can find a way—And I, too, 

want to echo the Chairman’s remarks, that I have great confidence 

in you and your understanding of this and being able to come up 

with something. If you are able to come up with something, I would 

like to share in the credit with you— 

[Laughter.] 

138

—and if you are unable to do it, I reserve the right to blame you 

entirely. 

Mr. GILCHREST. We will pull that rabbit out of the hat. 

I want to thank all of the witnesses for coming and traveling so 

far today. We will continue to work on this issue throughout the 

coming weeks, and certainly when we reauthorize MMPA, go further in depth on many of these issues. Thank you all for your 

input. 

We would like for each of you, over the next week or so, to give 

you a call at wherever you may be for some of the follow-up 

questions that we didn’t get to today. Thank you all very much. 

The hearing is adjourned. 

[Whereupon, at 6:40 p.m., the Committee adjourned.]

[Responses to questions submitted for the record by Major 

General Bowdon follow:]

Response to questions submitted for the record by Major General 

William G. Bowdon, III, Commanding General, Marine Corps Base Camp 

Pendleton, California, U.S. Marine Corps 

QUESTION 1: Mr. Pombo: You have heard in the past few weeks and you 

will probably hear today that the military is looking for exemptions from 

the ESA and MMPA so that you can get out of your environmental responsibilities under these acts. How do you respond? 

Major General Bowdon: Marine Corps installations are essentially ‘‘a tale of two 

cities’’ in that some of the things we do mirror those actions taken by cities, counties, and private companies. For example, we operate utility systems, we repair 

equipment, and we provide your Marines and Sailors housing and health care. We 

intend to maintain high standards of compliance for these activities, and we do not 

seek any changes in the application of laws that govern them. Some of things we 

do, though, are uniquely military. For example, we train your Marines for combat 

over much of our lands. We simply are looking for clarification from Congress on 

how environmental laws are to be applied for military unique activities. 

We hold all our land in the public trust and our record of stewardship of the natural resources entrusted to us by the American people is exemplary. The status of 

endangered species populations on our installations attests to this. The proposed 

legislation seeks to balance our environmental responsibilities with our national defense mission. We strongly believe that military training and the protection of endangered species can be mutually achieved—provided flexibility is provided for 

achieving a balanced approach. We need the help of Congress to provide that balance. QUESTION 2: Rep. Pombo: When INRMPS are developed, who sets the 

recovery goals for the species in question? 

Major General Bowdon: Recovery goals for species listed under the Endangered 

Species Act (ESA) are established by a process specified by that Act and U.S. Fish 

and Wildlife Service (FWS) regulations. This process is separate from the development of Integrated Natural Resource Management Plan (INRMP’s). For example, 

during development and coordination of Marine Corps Base (MCB) Camp Pendleton’s INRMP with the FWS, species recovery goals were not raised by the FWS and 

specific population targets were not established as INRMP objectives. Instead, Camp 

Pendleton’s INRMP established ecosystem management practices to enhance habitat 

value. 

QUESTION 3: Rep. Pombo: How does NEPA fit into the process of 

INRMPs? 

Major General Bowdon: All Integrated Natural Resource Management Plan 

(INRMP’s) undergo National Environmental Policy Act (NEPA) analysis and documentation before they become final. In the case of Camp Pendleton’s INRMP, an 

Environmental Assessment was conducted. 

QUESTION 4: Rep. Pombo: Why has DOD not exercised Section 7(j) of the 

‘‘God Squad’’ under Environmental Species Act (ESA)? 

Major General Bowdon: We do not believe invoking the use of an exemption for 

day-to-day activities is prudent. Exemptions are a bit like an emergency toolkit. Everyone should have an emergency toolkit in their car in case of breakdown on the 

side of the road. However, if you need to use the toolkit everyday to get to work, 

139

it is time to replace the car. Thus far, we have not needed to exercise the use of 

Section 7(j). However, as the U.S. Fish and Wildlife Service is forced to designate 

critical habitat on military installations via the courts, it is clear that we may need 

to invoke this section of law. Unfortunately, critical habitat designation on military 

lands appears to be possible across the nation. Invoking Section 7(j) for every instance would argue that its time to ‘‘:replace the car.’’

QUESTION 5: Rep. Pombo: What is the life span of your INRMP? Is this 

typical for most INRMPS? 

Major General Bowdon: The Sikes Act requires Integrated Natural Resource Management Plan (INRMPs) be reviewed and updated every five years unless conditions 

or military mission requires a more frequent update. We intend to update the MCB 

Camp Pendleton INRMP every 5 years. 

QUESTION 6: Rep. Pombo: Is current or possible development in the 

immediate vicinity of your installation a factor in some of the training 

difficulties you have experienced or may experience in the future? 

Major General Bowdon: Development and urbanization is the underlying factor of 

most training difficulties. The destruction and fragmentation of habitat is listed as 

the number one reason for most species requiring protection under the Environmental Species Act (ESA). As open space off Base is converted to homes and businesses, the remaining habitat on Base becomes more important to the continued 

survival of listed species. In the case of Camp Pendleton, the base now supports regionally significant populations for the tidewater goby, Pacific pocket mouse, and 

least Bell’s vireo (100%, 85%, and 45%, respectively, of the remaining populations). 

This importance results in increased regulation and limitation of training activities 

on military lands. 

QUESTION 7: Rep. Pombo: Are you aware of the new authority Congress 

provided the Department last year to enter into arrangement with local 

governments and conservation groups to create ‘‘buffers’’ of protected land 

around military bases? Do you think that use of the authority at Pendleton 

could help avoid future additional encroachment or perhaps even reduce 

the current level of restrictions you face? 

Major General Bowdon: Use of this authority will help slow the rate of additional 

encroachment especially those created by development adjacent to the Base (noise 

complaints, edge effects on species and habitat management programs, stormwater 

run-off and erosion). However, this ‘‘buffer defense’’ is not an encroachment cure, as 

avoidance of future additional encroachment or reduction to the current level of restrictions will require a more regional solution that prevents the loss of habitat for 

species with declining populations and recovers already listed species. Funding in 

sufficient amounts to acquire, restore, and manage habitat throughout a listed species range will be required. 

QUESTION 8: Rep. Pombo: Have you or your staff done any work with 

local governments and conservation groups to explore the potential use of 

this new authority? 

Major General Bowdon: Camp Pendleton has been working with San Diego County, Orange County, Riverside County, San Diego State University, Trust for Public 

Land, The Nature Conservancy, Sierra Club, Wildlife Habitats League, and a host 

of other conservation groups since July 2002 to establish a coordinated cooperative 

process for the identification and acquisition of critical properties that support the 

conservation of species of regional importance. This process is integrating data from 

several ongoing Habitat Conservation Programs to prioritize areas that are essential 

for conservation and for which cooperative partners will be able to achieve the 

greatest value for their investment. While Camp Pendleton has not yet been a participant in any of these acquisitions, two of the participating organizations that were 

brought together by this effort have teamed to acquire a key property to help preserve an essential corridor for large mammals that supports regional biodiversity 

goals and helps MCB Camp Pendleton by avoiding development proximate to critical 

ranges and maneuver areas. We anticipate Camp Pendleton will participate with 

one or more partners for acquisition of lands adjacent/proximate to the base later 

this year. 

QUESTION 9: Rep. Pombo: If the Congress were to pass the Readiness 

and Range Preservation proposals, do you think the ‘‘buffering authority’’ 

would still be a valuable tool for addressing encroachment? 

Major General Bowdon: The ultimate solution to restrictions on military readiness 

from endangered species is to ensure sufficient viable populations and habitat exist 

to allow delisting and long term sustainability of species. Use of the ‘‘buffering 

authority’’ is key towards ensuring suitable habitat for sensitive biological resources 

is available without adversely affecting military training requirements. While some 

environmental advocacy organizations disagree with the Readiness and Range PresVerDate 0ct 09 2002 10:39 Nov 04, 2003 Jkt 087420 PO 00000 Frm 00143 Fmt 6633 Sfmt 6621 J:\DOCS\86854.TXT HRESOUR1 PsN: KATHY
140

ervation proposals, all agree that the buffering authority granted by Congress is a 

valuable tool to prevent future degradation of military training capabilities. Many 

of these environmental advocacy groups are partnering with us to acquire undeveloped lands adjacent/proximate to Marine Corps bases and stations. 

[Responses to questions submitted for the record by Colonel 

DiGiovanni follow:]

Response to questions submitted for the record by Colonel Frank C. 

DiGiovanni, Chief, Ranges, Airfields and Airspace, Operation and 

Requirements Division, Air Combat Command, U.S. Department of the 

Air Force 

ENDANGERED SPECIES ACT & MARINE MAMMAL PROTECTION ACT 

Question 1: Congressman Pombo—You have heard in the past few weeks, 

and you will probably hear today, that the military is looking for exemptions from the ESA and MMPA so that you can get out of your environmental responsibilities under these acts. How do you respond? 

Answer: Col DiGiovanni—We are not seeking exemptions for the ESA or the 

MMPA. The Readiness Range Preservation Initiative (RRPI) seeks to clarify elements of certain specific environmental statutes. 

For the ESA, what is proposed through the RRPI is to codify an existing policy 

of the U.S. Fish and Wildlife Service (USFWS). That policy accepts Integrated Natural Resource Management Plans (INRMP) that provide ‘‘special management considerations or protection’’ for listed species as being sufficient to preclude designation of critical habitat. RRPI would formalize this policy, and would also continue 

to protect listed species since all provisions in the ESA remain unchanged. 

We already consult extensively with the USFWS. We consult when a species is 

listed, then again when developing our INRMPs, and yet again when we have proposed actions that may affect the listed species or its habitat. If the USFWS reviews 

our INRMP and concludes it does not adequately protect the habitat of a listed species, they can either ask us to amend the plan or they may designate our land as 

critical habitat. 

By working together with the USFWS, we can achieve a balance between military 

readiness and stewardship of the land entrusted to our care. 

For the MMPA, we are not seeking exemptions but a definitional clarification of 

the term ‘‘harassment’’ for purposes of military readiness. 

Question 2: Congressman Pombo—When Integrated Natural Resource 

Management Plans (INRMPs) are developed, who sets the recovery goals 

for the species in question? 

Answer: Col DiGiovanni—The goals and objectives for recovery of endangered species are developed by the U.S. Fish and Wildlife Service (USFWS). The content of 

the INRMPs is developed by the Air Force in cooperation with the USFWS and the 

State Fish and Game Agency, along with public participation through the National 

Environmental Policy Act (NEPA). 

The USFWS frequently recognizes the expertise of Air Force wildlife biologists, inviting them to be members of the endangered species recovery team. For example, 

biologists at Luke AFB in Arizona are members of the recovery team for the 

Sonoran Pronghorn, and they participated in the development of the recovery plan. 

Development of the INRMP for the Barry M. Goldwater Range in Arizona was a 

multi-agency effort. Participants included the Air Force, Marine Corps, Bureau of 

Land Management, USFWS representatives from the Cabeza Prieta National Wildlife Refuge, the USFWS Ecological Services office in Phoenix, the Arizona Game and 

Fish Department, and the Organ Pipe Cactus National Monument (National Park 

Service). 

Question 3: Congressman Pombo—How does the National Environmental 

Policy Act (NEPA) fit into the process of the Integrated Natural Resource 

Management Plans (INRMPs)? 

Answer: Col DiGiovanni—In almost every instance, an INRMP will direct at least 

one ‘‘major federal action’’ subject to NEPA. The Air Force attempts to provide a 

level of consistency in the way it applies its National Environmental Policy Act’s 

(NEPA) responsibilities in the INRMP preparation process. Yet, each INRMP is 

unique and Air Force program managers retain flexibility to meet their specific 

planning and management challenges as needed. 

Since development of INRMPs is usually considered a Federal action, compliance 

with NEPA is required. Air Force program managers complete assessments to determine whether the action(s) proposed in development of their INRMP may signifiVerDate 0ct 09 2002 10:39 Nov 04, 2003 Jkt 087420 PO 00000 Frm 00144 Fmt 6633 Sfmt 6621 J:\DOCS\86854.TXT HRESOUR1 PsN: KATHY
141

cantly affect the quality of the environment in accordance with NEPA guidelines. 

Throughout this process, formal NEPA documentation will be developed to inform 

decision-makers of the potential environmental effects of the proposed actions. 

Question 4: Congressman Pombo—Why has DoD not exercised Section 7 

(j) of the ‘‘God Squad’’ under the Endangered Species Act (ESA)? 

Answer: Col DiGiovanni—The exemption process is only available after a lengthy 

process and when there is a total impasse between the ESA and the federal agency 

actions. Once granted, the action is exempted from the prohibitions of the ESA. The 

Air Force has never needed such a broad exemption to accomplish our training 

objectives. An Integrated Natural Resource Management Plan (INRMP) gives us 

flexibility to balance military training with conservation of natural resources, including threatened and endangered species. Section 7(j) provides relief under a 

worst-case scenario when national security is at stake. 

It is far better to work with our partners at the U.S. Fish and Wildlife Service 

(USFWS) and the State Fish and Game Agencies to balance our responsible use and 

care of these training landscapes. The ESA provision in the Readiness and Range 

Preservation Initiative simply codifies the existing USFWS policy of allowing acceptance of our INRMPs as ‘‘special management considerations’’ in lieu of designating 

critical habitat. By complying with these considerations, the same protection is afforded the species and the AF’s needs are also met. 

Question 5: Congressman Pombo—We have heard a lot about ‘‘train the 

way you fight.’’ Why is this important? 

Answer: Col DiGiovanni—An analysis by the Defense Science Board Task Force 

(Training Superiority and Training Surprise, Jan 2001) revealed the highest losses 

among fighter pilots occur within the first ten combat missions. If we replicate these 

first ten missions in a realistic training scenario, our aircrews stand a much better 

chance of coming home from combat both victorious and alive. 

We also need to develop and practice new techniques to ensure combat effectiveness. For example, we developed new tactics where ground parties directed attacks 

on time-sensitive targets, specifically Scud launchers. This technique was put to the 

test recently in Iraq when Saddam Hussein was reportedly in a Baghdad restaurant. Within only minutes of first notification, there were bombs on target. We 

can accomplish these missions in the real world because we practice these techniques in training. 

In combat situations, aircrews may have only moments to make a life or death 

decision. The outcome of the decision is directly related to the pilot’s training. Workaround or modified training, due to encroachment concerns, can instill pilots with 

inappropriate flying, threat evasion, or munitions delivery behaviors. These inappropriate behaviors may lead to ineffective performance in combat and loss of pilot and 

aircraft. 

Question 6: Congressman Pombo—‘‘Tell us from your aviator experience 

why you need the flexibility to react quickly to new mission requirements.’’

Answer: Col DiGiovanni—In recent years, each operation or conflict has been significantly different from those that preceded it. Rather than plan to fight the last 

war, we train across a broad spectrum of scenarios, with a focus on developing new 

tactics. 

Immediately after the September 11 attacks, we began planning for operations in 

Afghanistan, but it soon became apparent that there were few conventional targets. 

The Mujahideen fought the Soviets from caves, so we quickly developed new tactics, 

built simulated caves and terrorist training camps at our Nevada and Utah Test 

and Training Ranges, and then sent in the aircrews to practice. Within four weeks 

of 9/11, those aircrews were engaging Al-Qaida terrorists and Taliban forces. 

Flexibility was the key for preparing for this mission, and you know the results. 

Our Integrated Natural Resource Management Plans also give us flexibility while 

providing necessary protections to listed species. If the land were designated critical 

habitat, we would have spent weeks in consultation, and there is little doubt that 

we would not have completed the training in such a short time. 

War is a dynamic process; battle plans, methods of engagement, and targets are 

situational specific. Although our training covers a multitude of scenarios, unforeseen new mission requirements often emerge during campaigns that are novel and 

unique. Without the ability to rapidly respond to new emerging threats or targets 

in a timely manner (days or weeks), the warfighter is at a disadvantage and at 

greater risk 

[Responses to questions submitted for the record by Brigadier 

General Fil follow:]

142

Response to Questions submitted for the record by Brigadier General 

Joseph F. Fil, Jr., Commanding General, National Training Center and 

Fort Irwin, California, U.S. Department of the Army 

GENERAL QUESTION

RESPONSE TO EXEMPTION CONCERN 

Question 1: You have heard in the past few weeks and you will probably 

hear today that the military is looking for exemptions from the Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA) so 

that you can get out of your environmental responsibilities under these 

acts. How do you respond? 

Answer: The proposed legislation is not an exemption from the Endangered Species Act. Most of the Act will still apply as written. The legislation only provides 

an alternative to the designation of critical habitat on military lands. The legislation 

will only clarify and confirm existing regulatory policies concerning future designations of critical habitat that recognize the unique nature of our activities. It would 

confirm the prior Administration’s decision that an Integrated Natural Resources 

Management Plan (INRMP) may, in appropriate circumstances, obviate the need to 

designate critical habitat on military installations. These plans for conserving natural resources on military property, required by the Sikes Act, are developed in cooperation with state wildlife agencies, the U.S. Fish and Wildlife Service (FWS), and 

the public. In most cases they offer comparable or better protection for the species 

because they consider the base’s environment holistically, rather than using a 

species-by-species analysis. 

Environmental groups are challenging the Administration’s decision that INRMPs 

may adequately provide for appropriate endangered species habitat management. 

They cite Ninth Circuit Court case law suggesting that other habitat management 

programs provided an insufficient basis for the FWS to avoid designating Critical 

Habitat. These groups claim that no INRMP, no matter how protective, can ever 

substitute for critical habitat designation. This legislation would confirm and insulate the FWS policy from such challenges. 

I would also note that this legislation does not automatically eliminate future critical habitat designations, precisely because under the Sikes Act, the statute giving 

rise to INRMPs, the FWS is given approval authority over those elements of the 

INRMP under its jurisdiction. This authority guarantees the FWS the authority to 

make a case-by-case determination concerning the adequacy of our INRMP as a substitute for critical habitat designation within Department of Defense lands. If the 

FWS does not approve our INRMP, the legislation will not protect the base from 

critical habitat designation 

SETTING RECOVERY GOALS 

Question 2: When Integrated Natural Resources Management Plans 

(INRMPs) are developed, who sets the recovery goals for the species in 

question? 

Answer: The proposed legislation would not change the existing process for developing Recovery Plans and setting recovery goals. The regulator (in our case the U.S. 

Fish and Wildlife Service (FWS)) sets ‘‘recovery goals’’ through the development of 

a Recovery Plan, which is also required by the Endangered Species Act (ESA). When 

INRMPs are developed, FWS maintains authority over the species through the ESA 

Section 7 consultation process. The Department of Defense, including the component 

Armed Services, has a duty under Section 7 of the ESA to provide for the conservation and recovery of listed species. We meet this duty by consulting with the U.S. 

Fish and Wildlife Service to determine what effect our actions will have on listed 

species and what affirmative steps we can take to provide for their conservation. 

Specific conservation measures (related to established recovery goals) will be incorporated into INRMPs for implementation. 

NATIONAL ENVIRONMENTAL POLICY ACT ROLE 

Question 3: How does National Environmental Policy Act (NEPA) fit into 

the process of Integrated Natural Resources Management Plans (INRMPs)? 

Answer: The NEPA requires systematic examination of possible and probable environmental consequences of implementing a proposed action along with reasonable 

alternatives to the proposed action to ensure decision-making reflects our environmental values. 

The Army policy is that the creation and implementation of an INRMP requires 

the appropriate level of NEPA analysis. The NEPA analysis and documentation 

must be completed prior to approval and implementation of the INRMP. The Army 

uses the NEPA process to achieve public comments prior to a final decision. This 

143

allows public stakeholder comments concerning the INRMP, in addition to any specific public comments generated in the early stages of the INRMP process. 

DEPARTMENT OF DEFENSE ENDANGERED SPECIES ACT EXEMPTION 

Question 4: Why has Department of Defense (DOD) not exercised Section 

7(j) of the ‘‘God Squad’’ under Endangered Species Act (ESA)? 

Answer: Although resource intensive and not without impacts on training realism, 

the National Training Center (NTC) has so far been able to balance its mission requirements with the conservation of the desert tortoise and Lane Mountain milkvetch. We have not yet reached an irreconcilable conflict between national security 

and conservation warranting the use of Section 7(j). As clearly intended by Congress, an exemption under Section 7(j) must be reserved for those rare situations 

when all other options are exhausted and national security warrants it. Rather than 

take the drastic step of seeking an exemption, the NTC, as well as other DOD installations, continues to seek ways to maintain an effective balance between mission 

and conservation. The Range and Readiness Preservation Initiative ESA provision 

will assist us in maintaining the flexibility that we need to preserve this delicate 

balance. 

LANE MOUNTAIN MILK-VETCH 

Question 5: You testify that the U.S. Fish and Wildlife Service (FWS) 

originally estimated that there were 1,200 Lane Mountain milk-vetch 

plants. Subsequent surveys indicated that there were between 30,000 and 

70,000. What was the recovery goal? Do we have any idea how large the 

numbers have ever been at their highest point? At what point do we consider this plant not really endangered? 

Answer: The FWS has not yet published a Recovery Plan for the Lane Mountain 

milk-vetch (LMMV), therefore there is no recovery goal. A draft Recovery Plan was 

published prior to the 2001 field survey conducted by Fort Irwin. In that plan, the 

recovery goal was to conserve and protect all known occurrences of the species. This 

goal was based on an estimated total population of 1,200 plants in three locations. 

We do not have sufficient scientific information to give a reliable idea of how large 

the numbers have ever been at their highest point. There is no evidence that this 

plant has become endangered due to a decline in numbers or that there were ever 

any more of them than there are now. This plant grows in a remote area that is 

composed of predominantly federal lands and is largely uninhabited. The few activities that occur in the area appear to have had little impact on the plant or its habitat. There is some ground disturbance due to old mining claims and recreational offroad activity, but in general the area remains untouched. It has been theorized that 

this plant may be a relic species, i.e. it is a leftover from a wetter time and is naturally diminishing in range and numbers due to climatic change in the desert. Astragalus in general, including LMMV, is known for having small geographic ranges 

and low numbers. 

The numbers of this desert plant, like other desert plants of the same type, can 

vary widely from year to year. The number of plants seen in any given year appears 

to be solely dependent on rainfall and weather patterns. It is thought that the 

plants basically die back each summer and then grow again with the onset of 

enough rainfall. It is also believed that individuals may live ten years or more. The 

2001 Fort Irwin-sponsored survey was conducted in a year of average rainfall that 

was preceded by two years of extreme drought; however, the pattern of rainfall 

made the season a particularly robust one with plenty of growth and seed production. If there were several years in a row of good rainfall the numbers may increase 

to hundreds of thousands of plants—and then in a drought year, as in 2002, the 

visible plants may be only a few hundred. 

The LMMV is considered endangered as long as the FWS lists it as such. In cases 

where a species recovers, becomes extinct, or the original listing decision is determined erroneous (e.g. new populations have since been discovered), the FWS has a 

delisting process. This formal process requires the FWS to review five listing factors 

as they pertain to the species, except where the species has become extinct: (1) 

whether there is a present or threatened destruction, modification or curtailment of 

the species habitat or range; (2) whether the species is subject to over utilization 

for commercial, recreational, scientific, or educational purposes; (3) whether disease 

or predation are factors; (4) whether there are inadequate existing regulatory mechanisms in place; and, (5) whether there are other natural or manmade factors affecting the species continued existence. Delisting may be initiated by the FWS or it may 

be petitioned by other entities. 

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CHANGES IF ENDANGERED SPECIES ACT PROPOSAL IS PASSED 

Question 6: If these changes to the Endangered Species Act are passed, 

what are the on the ground changes to the Army’s actions or management? 

Answer: The National Training Center could gain immediate flexibility in conserving Lane Mountain milk-vetch (LMMV). Critical habitat designation can impose 

rigid limitations on military uses of bases, denying commanders the flexibility to 

manage their lands for the benefit of both readiness and endangered species. In the 

case of LMMV, my staff can make informed, site-specific decisions on the right habitat to protect without unnecessarily impacting our mission. Critical habitat designation removes that flexibility by designating areas in a broad-brush fashion, requiring protection of a fixed area instead of actual habitat that biologists at the National 

Training Center are capable of determining more accurately in the process of conserving the species. 

These changes would also affect us if additional critical habitat were proposed for 

designation on the installation. If that occurs in the future, we could use our Integrated Natural Resources Management Plan to prevent an additional designation of 

critical habitat while still providing a conservation benefit to the listed species. 

REDUNDANCIES OR DUPLICATIONS THAT MAY BE REDUCED/ELIMINATED 

Question 7: If these changes to the Endangered Species Act (ESA) are 

passed, what redundancies or duplications will be reduced/eliminated? 

Answer: At Fort Irwin we could avoid multiple consultations for actions in areas 

that might have been designated as critical habitat, but are, instead, managed 

under the Integrated Natural Resources Management Plan. The legislation change 

DOD is seeking would reduce the regulatory burden under ESA Section 7, allowing 

both Army and administrators (US Fish and Wildlife Service and National Oceanic 

& Atmospheric Administration - Fisheries) to focus limited resources on conservation activities. Conservation of endangered species under both Sikes Act and ESA 

critical habitat constraints is largely redundant. In most cases, re-initiation of consultation due to the designation of critical habitat is unnecessarily duplicative. 

QUESTIONS SUBMITTED BY THE HON. NICK J. RAHALL, II

PERFORMANCE IN IRAQ 

Question 1: The military has received accolades for its purpose in Iraq. 

Just last week Secretary Rumsfeld praised U.S. troops as ‘‘the best trained, 

best equipped and finest troops in the world.’’ How was the ESA a hindrance to the military? 

Answer: I echo Secretary Rumsfeld’s conclusions. The U.S. Military is indeed the 

finest in the world. That is not in question. Our uncompromising objective is decisive victory every time our troops engage an enemy in combat. We will accept nothing less. 

The ESA constrains military training when management requirements associated 

with the protection of species and their habitat restrict access to doctrinally required amounts of training land, restrict the tires training lands are available to 

units, or restrict the numbers and types of training activities and equipment that 

can take place or be used on certain training lands. These constraints reduce the 

realism of training events, limit training to less than doctrinal distances, and often 

require units to deploy to other less constrained training facilities. Given the flexibility to work with State and federal regulatory agencies to develop and implement 

a quality Integrated Natural Resource Management Plans (INRMPs), most commanders can balance the competing requirements to protect species with the need 

for doctrinally sound military training. When rigid requirements such as those associated with the designation of Critical Habitat are implemented in lieu of quality 

management tools like the INRMP, flexibility is lost, resources (both conservation 

and training) are wasted, and training realism is reduced. 

SITES AVAILABLE FOR THE MILITARY 

Question 2: It seems that there are many sites available for weapons testing or military training activities not just one installation. In contrast, endemic species rely on unique locations and cannot be transported just anywhere. Is it possible for the U.S. military to make arrangements with other 

countries if we do not have the perfect location to conduct a specific military exercise or test a weapon? 

Answer: The question implies that Army training events are easily relocated or 

that all that is necessary to conduct training is an open piece of ground. This is not 

the case. Modernized Army ranges provide instrumentation such as targetry, observation and control capabilities, and communications systems. They are designed to 

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meet very specific doctrinal requirements. Access to contiguous plots of open maneuver land in the sizes necessary to approximate realistic combat is extremely rare. 

Nearly every major Army training installation has a shortage of usable maneuver 

land. Firing ranges are often scheduled to maximum capacity. Army units take advantage of deployed training opportunities when they are available, are fiscally responsible, and make sense from the perspective of operational tempo and personnel 

tempo. However, overseas training opportunities are limited by the expense of training deployments, the availability and adequacy of training and support facilities in 

other countries. Relying on other countries to provide the facilities necessary to defend the United States is certainly not along-term solution. 

In the case of my installation, the National Training Center, Fort Irwin, CA, there 

is no other facility in the world that provides this type of military training experience. At the NTC, we employ four key elements, not available at other training facilities, to train brigade combat teams. We have a full-time, dedicated Opposing 

Force Regiment (OPFOR); professional full-time trainers to observe and provide 

feedback to the training units; a sophisticated instrumentation system to track the 

battles, and a realistic battlefield that replicates the stress and conditions of actual 

combat. We are constantly examining our training, equipment, and training area, 

to ensure they support potential future joint and combined combat environments 

and they provide the realistic geographic battle space to train Brigade Combat 

Teams. 

CURRENT FWS POLICY 

Question 3: Both Major Bowdon and Brigadier General Fil’s testimony indicated that a recent Federal court ruling p1aces the discretion given to 

the Interior Secretary in Section (4)(b)(2) in jeopardy. But I do not believe 

this is the correct reading of the decision in Center for Biological Diversity 

v. Gale Norton. The court said that the ESA requires the Secretary to designate critical habitat essential to the conservation of species and may also 

require special management considerations or protection. Assistant Secretary Manson also alluded to this in his testimony when he recommended 

a change in the bill in light of the court decision. Given that the court did 

not question Interior’s discretion not to designate critical habitat under 

Section 4(b)(2), please explain how your current practice to exclude a military installation from critical habitat designation if an adequate INRMP is 

in place is threatened? 

Answer: The court’s opinion in Center for Biological Diversity v. Gale Norton calls 

into serious question the U.S. Fish and Wildlife Service’s policy of not designating 

critical habitat on land covered by an adequate management plan affording the 

‘‘special management consideration or protection’’ that critical habitat is intended to 

provide. This is the policy that the U.S. Fish and Wildlife Service has relied on to 

allow Integrated Natural Resources Management Plans (INRMP) to stand in place 

of designation of critical habitat on military installations. This policy is beneficial 

in ensuring that Department of Defense (DOD) installations will have the flexibility 

to effectively balance their mission and conservation responsibilities through 

INRMPs, without the rigid constraints currently imposed by critical habitat designation. This, however, does not mean that INRMPs are now entirely irrelevant to the 

U.S. Fish and Wildlife Service when they weigh the costs and benefits of critical 

habitat designation under Section 4(b)(2). The court granted deference to the Department of Interior’s interpretation of ‘‘relevant impact’’ under Section 4(b)(2), recognizing that the U.S. Fish and Wildlife Service has broad discretion to determine 

what factors it will consider in deciding whether or not to exclude lands from designation. We believe that the existence of an effective INRMP should still be considered by the U.S. Fish and Wildlife Service in determining whether designation of 

critical habitat would add any additional conservation benefit to the species. While 

the court’s decision may not preclude the U.S. Fish and Wildlife Service from considering an INRMP as a factor in making critical habitat designations under Section 

4(b)(2), there is inherent uncertainty and litigation risk in this process that would 

be eliminated under DOD’s Readiness and Range Preservation Initiative provision. 

EXISTING AND FUTURE CRITICAL HABITAT DESIGNATION PROBLEMS 

Question 4a: In your written testimony, you mention the critical habitat 

that is designated on 22,000 acres of the military base. I was under the impression that with the authorization of the NTC expansion, the 22,000 acres 

of critical habitat would be mitigated and could be used for training purposes. Indeed, Public Law 106-554 specifica1ly authorizes to be appropriated $75 million for ‘‘the implementation of conservation measures necessary for the final expansion plan for the National Training Center to 

146

comply with the Endangered Species Act.’’ Why, when Congress has enacted legislation specific to the National Training Center at Fort Irwin 

mandating the conservation of the desert tortoise AND authorizing $75 M 

to do it, is this still a problem? 

Answer: While Public Law 106-554 authorizes $75M for new opportunities for conservation of desert tortoise, it does not specifically change the critical habitat designation for the Fort Irwin lands that are proposed to be opened for training use. 

The problem for the National Training Center and Fort Irwin is that 22,000 acres 

of former training land on Fort Irwin, and over 70,000 acres of the new expansion 

lands, are currently designated as desert tortoise critical habitat. Under the Endangered Species Act, the designation of critical habitat requires federal agencies that 

may affect endangered species or adversely modify such lands to consult with the 

U.S. Fish and Wildlife Service to consider the impacts of its activities on endangered 

species. In addition, the federal agency must determine whether its proposed action 

would ‘‘adversely modify’’ any designated critical habitat. The authorization for 

funding will allow Fort Irwin the potential ability to mitigate and compensate for 

impacts to endangered species and critical habitat present in the project area. We 

believe the desert tortoise conservation measures that are incorporated into the expansion plan will provide adequate mitigation and compensation to avoid jeopardy, 

but the Endangered Species Act consultation process must be followed to a final conclusion before the use of the land is approved. 

EXISTING AND FUTURE CRITICAL HABITAT DESIGNATION PROBLEMS 

Question 4b: In your written testimony you state that ‘‘the potential designation of critical habitat may...make this area totally unusable for Brigade Combat Team training by the NTC.’’ I am fairly certain tat training 

restrictions on critical habitat are made by the FWS in consultation with 

the DOD after critical habitat is designated. Based on this sequence of 

events, your testimony would appear to be pure speculation. In fact, historically the FWS has tried not to place restrictions on critical habitat 

where it adversely impacts training. Is this statement simply your prediction about events that will transpire in consultation? 

Answer: My statement is an assessment of what could and has happened based 

on the experiences of past consultations. The National Training Center and Fort 

Irwin has engaged in two formal consultations with U.S. Fish and Wildlife Service 

concerning our military training requirements. Each consultation resulted in some 

additional training restrictions. It is true that the U.S. Fish and Wildlife Service 

may exclude designation of critical habitat when it determines that benefits to the 

species would be outweighed by the adverse consequences to military readiness 

under Section 4(b)(2) of the Endangered Species Act. However, once the U.S. Fish 

and Wildlife Service designates critical habitat for a species, it must continually consider actions that may adversely impact the habitat. 

Our current biological opinion requires that there can be no ground disturbing activities on the 22,000 acres of former training land in desert tortoise critical habitat. 

This means no off-road tactical vehicle use and no digging. We are limited to dismounted patrols in these 22,000 acres which makes the area mostly unusable for 

the type of training we are required to accomplish. Additionally, 70,000 acres of the 

new expansion lands are designated desert tortoise critical habitat; it is possible 

that the same restrictions could be put in place for this area. 

Critical habitat for Lane Mountain Milk-vetch has not been designated, but the 

critical habitat designation is court ordered to be final by September 15, 2004. The 

designation could include the whole western expansion area using a broad-brush approach. We are concerned that severe restrictions, similar to those for actions in 

desert tortoise critical habitat, will result from future Lane Mountain Milk-vetch 

consultations even if we are successful in mitigating for our impacts to desert tortoise in the same area. Passing the Readiness and Range Preservation Initiative 

could provide some needed flexibility to our situation, but would not affect our responsibility to conserve species and to consult with the Service. 

[Responses to questions submitted for the record by Rear 

Admiral Hathaway follow:]

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Response to a question submitted for the record by RADM Jeffrey J. 

Hathaway, Department of Homeland Security, United States Coast Guard 

MARINE MAMMAL PROTECTION ACT /ENDANGERED SPECIES ACT 

QUESTION: I know the Coast Guard may have restructured your training 

or operations due to the Marine Mammal Protection Act (MMPA) or Endangered Species Act (ESA). Has any operation of the Coast Guard been prevented or prohibited from taking any action taken by the NOAA or the 

DOI? Has a seal on a buoy ever prevented the Coast Guard from doing 

maintenance for aids to navigation? 

ANSWER: No, the Coast Guard has not been prevented or prohibited from taking 

any action by the National Oceanic and Atmospheric Administration (NOAA) or the 

Department of Interior (DOI) due to the Marine Mammal Protection Act (MMPA) 

or Endangered Species Act (ESA). Although no operations or training have been prevented or prohibited, including aids to navigation, the Coast Guard has issued 

guidelines to field units to schedule or delay activities to minimize or eliminate the 

negative impact to the protected species. For instance, Aids to Navigation (ATON) 

units schedule routine service of lighted aids for periods when specific species of 

birds are not nesting. The Coast Guard works closely with NOAA and DOI (Fish 

and Wildlife Service) to ensure Coast Guard operations can be conducted while 

complying with the MMPA and ESA. 

[Responses to questions submitted for the record by Dr. Hogarth 

follow:]

Response to questions submitted for the record by Dr. William T. Hogarth, 

Assistant Administrator for Fisheries, National Marine Fisheries Service, 

National Oceanic and Atmospheric Administration, U.S. Department of 

Commerce 

Questions Submitted by Chairman Richard Pombo 

Question 1: Is your agency conducting any research on the effects of various sounds on marine mammals? How much research is being funded by 

the Navy and/or NMFS? If not for this type of research, how much would 

we know about the acoustic ranges of various marine mammals? 

Answer: The National Marine Fisheries Service (NOAA Fisheries) supports a scientific program related to acoustics and the effects of noise on marine animals 

(mammals and turtles) at a level of $200,000 per year (for each of the last three 

fiscal years). Because this program is a new one and receives only modest support, 

most of the funds have been used to convene scientific workshops to compile and 

interpret the existing scientific information and to recommend specific areas and 

priorities for future research. Specifically, these funds have been used to support 

workshops (Acoustic Resonance, Auditory Brainstem Response, Temporary Threshold Shift), an NRC panel on ocean noise, the development of acoustic criteria (noise 

standards) for the agency, research on whale calls, and the creation of a computer 

program for calculating safety zones around sound sources (for issuance of Marine 

Mammal Protection Act (MMPA) authorizations). 

The Office of Naval Research (ONR) funds most of the research being done on marine noise. NOAA conducts some research alone and some in cooperation with ONR. 

The NOAA Fisheries budget for noise research is $200K per year. The ONR budget 

for noise research is $7 million per year. NOAA’s Office of Oceanic and Atmospheric 

Research spends approximately $1 million per year on passive acoustic monitoring 

of the oceans, including whale calls. All NOAA Fisheries regions use passive acoustic detection to locate whales during marine mammal surveys. This monitoring effort differs from noise research, and is not described in detail here. 

Before the current ONR research effort began 7 years ago, hearing ranges were 

known for only 5 or 6 of the 130 species of marine mammals, and nothing was 

known about the effects of noise on marine mammal ears. ONR has provided much 

needed information since then. Increased research has helped us gain a better understanding of the hearing ranges of between 12 and 15 marine mammal species. 

Other than the Navy and NOAA Fisheries efforts, the National Science Foundation 

and the oil and gas and seismic industries may soon contribute to the understanding of acoustics and marine mammals through donations to the National 

Ocean Partnership Program. Minerals Management Service (MMS) has contributed 

through monitoring programs as a part of authorizations (through regulations or Incidental Harassment Authorizations) to take marine mammals incidental to their 

activities. MMS has also produced a needed model of underwater explosions related 

148

to rig removals. All these efforts provide data on behavioral responses of marine 

mammals and turtles to anthropogenic sound. No federal agency has yet conducted 

research on the effects of noise and explosions on fish, although some research has 

been conducted. 

Question 2: We have heard from a number of scientists, groups and individuals that the proposed changes to the definition of ‘‘harassment’’ are 

problematic due to the inclusion of ‘‘significant’’ in paragraph (i) and the 

use of ‘‘natural behavioral patterns’’ in paragraph (ii). Why did the agency 

propose this language instead of the language recommended in the 

National Research Council’s report? 

Answer: The Administration used the NRC recommendations as a starting point 

for revising the current harassment definition to clarify that the definition should 

focus on those activities that are likely to result in significant negative impacts on 

marine mammals. The Administration’s bill achieves this goal. Certain additional 

agency concerns affected some of the specific language choices in the Administration’s proposed amendments to the definition. 

Specifically, the definition of harassment proposed by the Administration would: 

1) Make the definition more enforceable by eliminating the need to prove first 

that activities involve ‘‘pursuit, torment, or annoyance,’’ terms that are currently undefined in the MMPA, before they can qualify as Level A or B harassment; 

2) Make more explicit that certain activities directed at marine mammals may 

constitute harassment; and 

3) Focus the harassment standard on those activities that are likely to result in 

significant negative impacts on marine mammals, rather than those that potentially 

result in de minimus effects, which could unnecessarily tax the agency’s resources 

and overburden the regulated community. The Administration’s definition of harassment differs from the NRC definition on this point in two ways: 

• The Administration’s definition includes Level A harassment (not addressed by 

the NRC) and differs from the current MMPA primarily by adding the word 

‘‘significant’’ before the term ‘‘potential.’’

• The NRC recommended the term ‘‘meaningful disruption of biologically significant activities.’’ While the Administration definition differs, it captures the 

same concept of focusing on those activities that exceed a de minimus threshold. 

The NRC term may be too constraining if the term ‘‘biologically’’ is interpreted 

too narrowly. In either case, regulations or guidance could provide a clearer definition of terms. 

Question 3: The new paragraph (iii) in the proposed change to the definition of ‘‘harassment’’ has also been an issue of concern. This paragraph appears redundant to paragraph (ii) in the definition, but contains ‘‘any act 

that is directed toward a specific marine mammal...’’, but does not contain 

the ‘‘by causing disruption of natural behavioral patterns’’ qualifier. Why 

did the agency propose including this language in the definition? 

Answer: The Administration believed it was necessary to make more explicit in 

the definition of harassment that activities directed at marine mammals in the wild 

may constitute harassment because they are potentially injurious to the animals. 

This language is intended to clarify that activities such as closely approaching, 

swimming with, or touching marine mammals may, in certain circumstances, constitute harassment. Thus, the second tier of the Level B harassment definition 

would help NOAA Fisheries and/or the USFWS better regulate, and where appropriate prosecute, activities that may not lead to abandonment or significant alteration of the marine mammal’s natural behavioral pattern at the time, but are likely 

to cause disruption of natural behavioral patterns that are associated with cumulative, long-term harm to marine mammals. 

Question 4: Scientists are concerned this will cause more restrictions on 

their research. Is this true? 

Answer: This language will not impose increased restrictions on the scientific research community. The scientific research community already obtains scientific research permits or general authorizations for Level B harassment under MMPA section 104 for scientific research activities directed toward an individual, group, or 

stock of marine mammals in the wild, and section 104 would not be affected by this 

second tier of the definition. Under the new definition of harassment, research activities involving Level B harassment would still be covered under the General 

Authorization (GA) for scientific research, which provides a simplified process for 

authorizing research involving Level B harassment. This requires submission of 

‘‘Letters of Intent’’ (LOIs) to notify NOAA Fisheries of intended activities. NOAA 

Fisheries reviews the LOIs within 30 days and issues ‘‘Letters of Confirmation.’’ 

This process has worked well to date. Additionally, this process helps NOAA FishVerDate 0ct 09 2002 10:39 Nov 04, 2003 Jkt 087420 PO 00000 Frm 00152 Fmt 6633 Sfmt 6621 J:\DOCS\86854.TXT HRESOUR1 PsN: KATHY
149

eries track the types of research being conducted on marine mammals and the potential cumulative impacts they may have. 

The GA does not apply to research activities involving Level A harassment or endangered or threatened species listed under the ESA. It also does not apply when 

harassment is incidental (not directed). As with current MMPA language, scientists 

who want to conduct Level A harassment activities, or work with ESA-listed marine 

mammals, need to apply for a scientific research permit. More scientific research is 

likely to fall under Level B harassment, and be subject to the streamlined procedures of the General Authorization, under the administration’s proposed definition 

since the proposed Level A definition would focus on those activities that injure or 

have the ‘‘significant’’ potential to injure a marine mammal in the wild. 

Question 5: How will the agency implement this language? 

Answer: NOAA Fisheries intends to implement the new language in several ways. 

First, the agency will likely conduct a rulemaking to clarify the definition of harassment, and specifically, the intent behind this new language. Second, the agency will 

continue its long-term outreach efforts to educate the public and commercial operators about safe and responsible marine mammal viewing practices by continuing to 

produce outreach materials (e.g., brochures, posters, signs, public service announcements, etc.), holding community workshops, and continuing its partnership with the 

Watchable Wildlife program. Third, the agency intends to develop regulations in follow-up to the Advance Notice of Proposed Rulemaking published in January 2002 

(67 FR 4379) that would further clarify specific activities that can cause harassment 

of marine mammals. Fourth, NOAA Fisheries Office of Protected Resources will continue to work with the NOAA Office of General Counsel and the NOAA Fisheries 

Office for Law Enforcement to develop strategies for addressing violations. 

With regard to the scientific research community, the General Authorization for 

Scientific Research has been in place since 1994 and NOAA Fisheries has already 

developed a streamlined and expedited program to issue ‘‘Letters of Confirmation’’ 

for bona fide scientific research projects within 30 days of receipt of a ‘‘Letter of Intent’’ submitted by a qualified researcher. This authorization process has been successful and would not change. 

Question 6: Could you explain the intent of the changes proposed to the 

MMPA definition of harassment in section 3, paragraph (iii)—‘‘any act that 

is directed toward a specific individual’’? 

Answer: As discussed in our response to Question 3, clause (iii) of the proposed 

harassment definition will help NOAA Fisheries and/or USFWS to enforce the taking prohibition of the Act against those that directly harass marine mammals. It 

will make it more explicit that activities directed at marine mammals in the wild 

may constitute harassment because they are associated with negative long-term cumulative effects on the animals. This language is intended to clarify that activities 

such as closely approaching, swimming with, touching, or feeding marine mammals 

in the wild that are likely to disrupt the behavior of the animals are considered harassment. Thus, the second tier of the Level B harassment definition would help 

NOAA Fisheries and/or USFWS better regulate and enforce actions that may not 

lead to abandonment or significant alteration of the marine mammal’s behavioral 

patterns at the time, but that are likely to cause disruption of such behaviors that 

are associated with cumulative, long-term harm to marine mammals (e.g., reduced 

fecundity, low calf weaning rate, increased energy expenditure). 

Question 7: Could the goal of paragraph iii be accomplished under the 

language of paragraphs (i) and/or (ii)? 

Answer: No. Paragraphs (i) (Level A harassment) and (ii) (Level B harassment) 

can apply to both direct and indirect harassment. However, paragraph (iii) is intended to address problems that the agencies have encountered in applying the 

Level B harassment definition to actions directed toward marine mammals, while 

paragraph (ii) is intended to address problems that the agencies have encountered 

in applying the Level B harassment definition to actions that cause incidental harassment. The language in paragraph (iii) recognizes that activities directed at marine mammals are more likely to disturb the animals; therefore, there is a different 

threshold for these directed activities. It also recognizes that those who engage in 

activities directed at marine mammals that are likely to disturb them should be 

treated differently from those who affect marine mammals incidentally. The new 

language would help NOAA Fisheries and USFWS better regulate, and where appropriate prosecute, activities specifically directed toward marine mammals which, 

if unchecked, can have negative long-term effects on marine mammals. 

Question 8: Is there a reason why paragraph (iii) does not contain the 

‘‘significance’’ threshold of paragraphs (i) and (ii)? 

Answer: The main intent behind this language is to make it easier to regulate, 

and where appropriate prosecute, unlawful activities aimed at marine mammals in 

150

the wild. This part of the Administration’s proposed definition does not contain a 

‘‘significance’’ threshold because activities directed at marine mammals in the wild 

by members of the general public that disturb the animals should not be allowed 

and because these activities often are more likely to cause adverse effects that may 

not be immediately recognized through significant changes in behavior. 

Question 9: Will the removal of ‘‘specified geographic region’’ change how 

the agency determines if an activity has a ‘‘negligible impact’’ on marine 

mammal species? 

Answer: While most activities take place within a relatively small area, some activities might apply for authorizations in the future, such as commercial or military 

transoceanic shipping or air transport, that would travel across more than a single 

biogeographic region. For example, a noisy, large container ship traveling the Great 

Circle Route from Los Angeles to Tokyo would transit 4-5 of the biogeographic regions, established under the LFA sonar rule, during that transit. 

Sections 101(a)(5)(A) and 101(a)(5)(D) of the MMPA contain the requirement that 

the activity take place within a ‘‘specified geographic region.’’ Negligible impact determinations are made under both sections on a species or stock basis and, for section 101(a)(5)(A), the determination must be made that the ‘‘total of such taking’’ 

by the activity will be negligible. If the negligible impact determination is based on 

a marine mammal species or stock basis, it does not matter if the activity is confined within a single specified geographic region, over several regions, or oceanbasin wide. Based on our current knowledge of marine mammals, it is difficult to 

draw specific geographic regions such that they encompass the entire suite of marine mammal stocks that might be affected by wide-ranging activities. Therefore, 

there would not be any modification in how NOAA Fisheries makes the necessary 

determinations, including negligible impact, under the small take program if the 

phrase ‘‘within a specified geographic region’’ is modified or removed. 

Question 10: Could you explain how you envision take authorizations 

being implemented if the language within a ‘‘specified geographic region’’ 

is deleted from 101(a)(5) of the MMPA? 

Answer: There would not be a significant change. The current regulations implementing the incidental take program under Section 101(a)(5)(A) instituted a process 

that requires those whose activities may result in a taking of one or more marine 

mammals to obtain a Letter of Authorization (LOA) under regulations implemented 

to govern that specific activity. The activity regulations do not authorize the taking; 

the LOA authorizes the taking. Because NOAA Fisheries must determine that the 

total taking by the activity is having a negligible impact on affected marine mammals stocks, the determinations necessary to support LOAs would not change and 

would continue to cover the area in which marine mammal stocks are affected. 

Question 11: If an incidental take authorization for an activity is done on 

a worldwide basis, how would variations in the types and numbers of species and the types of potential harassment among different regions of the 

world be dealt with in one take authorization? For example, if there is only 

a few numbers of species under consideration in New England, but huge 

numbers of the same species in California, how would that be reflected in 

the mitigation measures for a single take authorization? Will NOAA have 

the resources to review the scientific literature, research and data on a 

global basis? Will this slow down the take authorization process? 

Answer: NOAA Fisheries does not intend to issue blanket world-wide 

authorizations since all applicants will need to notify NOAA Fisheries of the location of their operations. If such locations are classified for military or commercial 

(e.g., oil and gas deposit locations) reasons, NOAA Fisheries has staff who are 

authorized to view that material and make the necessary determinations. 

Regarding mitigation measures, NOAA Fisheries is required to ensure, through 

regulations, that the authorized taking is at the lowest level practicable. In making 

its determinations that the taking will have no more than a negligible impact on 

affected stocks and will not have an unmitigable adverse impact on subsistence 

uses, NOAA Fisheries considers all mitigation measures that can be practically implemented during rulemaking. If the mitigation measures are universal, they will 

be contained in the regulations and apply to all LOAs issued under that set of regulations. If the mitigation measures would vary by location, either because the affected stocks (especially in regard to endangered marine mammals) and impacts on 

them vary, because the characteristics of the action areas vary, or because an area 

needs additional protection during certain seasons, the regulations may contain a 

general framework for mitigation that allows for more tailored mitigation measures 

at the LOA level. In either case, NOAA Fisheries would not issue blanket worldwide authorizations, only regulations under section 101(a)(5)(A) that would form the 

framework for authorizations under LOAs. 

151

In implementing the incidental take program, the applicant must provide to 

NOAA Fisheries and the U.S. Fish and Wildlife Service the best available information that the applicant’s activity will have no more than a negligible impact on affected marine mammal species and stocks. That information is then reviewed by 

NOAA scientists to determine whether it supports the preliminary finding of negligible impact. NOAA’s marine mammal scientists are among the most qualified to 

determine the accuracy of this information. If the information is insufficient to support even a preliminary finding, the applicant may be required to conduct scientific 

research on the impact. This is what the U.S. Navy was required to do before NOAA 

Fisheries would accept an incidental take application for SURTASS LFA sonar. 

However, when issuing incidental take authorizations for waters distant from the 

United States, delays may result because the marine mammal information on status 

and trends may not be available. Therefore, potential applicants should begin discussions with NOAA Fisheries early in the planning process for the activity to ensure that the necessary information is identified and can be obtained. 

Question 12: Will incidental take authorizations be effective on a worldwide basis given the language in section 102(1) of the MMPA that it is 

illegal to take a marine mammal on the high seas? 

Answer: Incidental take authorizations may be issued for activities of United 

States citizens on the high seas based on the language of MMPA sections 102(a)(1) 

and 101(a)(5). However, NOAA Fisheries does not intend to issue blanket worldwide authorizations, because all applicants will need to notify NOAA Fisheries of 

the location of their operations in order for NOAA Fisheries to carry out its responsibilities (see response to previous questions) and because the required determinations must be made on a stock-by-stock basis. 

Question 13: Although it is not addressed by this bill, as you may be 

aware, the National Oceanic and Atmospheric Administration is considering expanding the Channel Islands National Marine Sanctuary to now 

include waters that are part of the Point Mugu Naval Air Station’s sea test 

range. Do you believe that allowing marine sanctuaries to expand into 

waters used for military readiness activities is counterproductive to Point 

Mugu’s mission and to our nation’s military preparedness? If so, why? If 

not, why not? 

Answer: National Marine Sanctuaries and Department of Defense (DOD) have coexisted since 1980, when the Channel Islands National Marine Sanctuary (CINMS) 

was designated in an area that significantly overlaps the Point Mugu Naval Air Station’s Sea Test Range. Since that time, CINMS has never obstructed or intruded 

upon military activities within the Sea Test Range. 

CINMS maintains a good working relationship with the Navy and Air Force and 

both have representatives on the Sanctuary Advisory Council, which advises NOAA 

on management of the Sanctuary. 

Every relevant National Marine Sanctuary, including CINMS, provides an exemption for DOD activities. This exemption grandfathers in existing (as of the date of 

sanctuary designation) DOD activities and allows for the exemption of new DOD activities after consultation with NOAA. To date, such consultations have usually resulted in the requested exemption being granted to DOD. NOAA has not denied any 

request to extend exemptions to new activities. In the only case that we are aware 

of, it was not necessary to grant an exemption because after consultations, DOD 

agreed to other alternatives which met their needs. 

NOAA is deferring selection of a preferred boundary alternative for the CINMS 

until additional biogeographic assessments are completed and a supplemental environmental impact statement is prepared sometime next year. 

NOAA, having a positive working relationship with the DOD (including the Point 

Mugu Naval Air Station) to date, intends to continue these efforts if there is any 

future decision to expand CINMS boundaries farther into waters used for military 

readiness activities. NOAA believes that using existing DOD exemption mechanisms 

and fostering this working relationship will prevent any concerns or actions that 

might be counterproductive to the Point Magu’s mission or to our Nation’s military 

preparedness. 

Question 14: Would giving the Department of Defense the authority, in 

certain circumstances, to keep off-limits active military waters from future 

marine sanctuary boundary expansions or new sanctuary designations 

alleviate hindrances to military readiness activities? 

Answer: In passing the National Marine Sanctuaries Act (NMSA), Congress recognized the importance of special places in the marine environment that are of significance to the Nation. This protection can be achieved without compromising our Nation’s military readiness. 

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The NMSA requires that, as part of every sanctuary designation (and potential 

boundary expansion, which would trigger the same process), the Secretary of Commerce consult with the Secretary of Defense on the sanctuary proposal. Historically, 

this has been the time that the details of how a sanctuary will interact with any 

military activities in the area has been determined, including specifics of regulations 

and boundary. To date, this has resulted in the inclusion of military operating areas 

in several sites (Channel Islands, Olympic Coast, Florida Keys, and Hawaiian Islands Humpback Whale National Marine Sanctuaries). It is clear from these examples that sanctuaries and military activities can co-exist without any hindrance to 

military readiness. 

NOAA believes that this case-by-case consultation is the most effective way to determine how sanctuary and military activities can coexist, as sanctuary resources 

vary from site to site and military operating areas vary in their use. 

Questions Submitted by Congressman Nick Rahall 

Permit Process 

Question 1: There are complaints that the permit process can be expensive and slow, and is not always applied equally to academic research, industry and the military. At last year’s House Armed Services Committee 

hearing on environmental issues, you testified that ‘‘to the extent the Navy 

and other action agencies can plan sufficiently far in advance of activities 

and provide us with adequate time to work them at the earliest possible 

stages, the implications of the permit process should be minor.’’

• How many dedicated full time employees are on staff to review Navy 

permitting requests under the Marine Mammal Protection Act? 

• Would increased staffing help expedite this process thus addressing 

some of the Navy’s concerns? 

• What steps have been taken in the past twelve months to increase your 

resources and initiate more advanced planning to foster a more efficient permit application and review process? 

Answer: NOAA Fisheries has two positions and one contract person to review and 

process all small take applications from all applicants including the Navy, Air Force, 

Interior, FAA, the oil industry, and others. 

Based on current and projected requests from the Navy, NOAA Fisheries anticipates that one position would be necessary to process all Navy small take applications within the time period required by the MMPA. However, there are significantly more Navy requests for consultation on the full range of Navy actions under 

section 7 of the ESA than there are small take applications. Therefore, to avoid 

delays in completing Navy MMPA small take authorizations, one additional position 

would also be needed to address Navy ESA consultation activities. 

We have reached our authorized staffing levels with the recent hiring of a new 

employee to work on MMPA ‘‘small take’’ authorizations. In addition, we have reprogrammed funding to contract for a person to prioritize work on DOD small take applications. We are also reprogramming funds to bring on additional marine acoustic 

scientific expertise. Finally, we are discussing with the Navy options for acquiring 

additional resources. 

The Navy and NOAA Fisheries have established several means to work on Navy 

projects months or years prior to their initiation so that MMPA and ESA 

authorizations are completed as soon as possible upon completion of other necessary 

environmental documents. These discussions often are initiated at our regional offices. For example, we will begin meetings in July 2003 for a Navy activity scheduled for 2006 that will need a small take authorization. On this and other Navy 

activities, NOAA Fisheries expects to be a cooperating agency in preparation of 

NEPA documents. 

The FY 2003 President’s request included $1.5 million to provide for thorough, 

complete, and timely environmental and economic analyses for NOAA’s recovery 

programs. These funds would also support assessments of environmental and socioeconomic impacts of implementing protected species conservation programs. This request was not funded in the FY 2003 appropriation; however, it is also included in 

the FY 2004 request. 

Existing Exemption 

Question 2: In 1998, Congress amended the U.S. Armed Forces Code to 

give the military an opportunity to raise readiness issues to the political 

level of the Executive Branch and suspend administrative actions pending 

consultation between the Secretary of Defense and the head of the action 

agency involved. 

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How many times has the Secretary of Defense used this provision for activities that fall under the scope of your agency? 

Answer: It is our understanding that the DOD has not used this provision to address activities that have fallen under the scope of NOAA programs. 

Definition of Terms 

Question 3: Section 3 of H.R. 1835 proposes changing the definition of 

harassment to purportedly clarify it. Can you please elaborate on how 

NOAA would interpret, define, and enforce the terms ‘‘significant potential 

to injure’’ and ‘‘significantly altered?’’

Answer: Amendments to the harassment definition changed in H.R. 1835 from 

the hearing on May 6, 2003, to when the bill was reported out of the House 

Resources Committee. The below response notes which version of the amendments 

we refer to. 

NOAA Fisheries worked closely with the Department of the Interior, Department 

of Defense, and Marine Mammal Commission to develop a package of amendments 

to improve implementation and enforcement of the MMPA. Clarifying the definition 

of harassment was part of these efforts in order to better regulate, and where appropriate prosecute, activities that unlawfully harass marine mammals. Our intention 

was to clarify statutory language while maintaining flexibility in case new scientific 

information were to become available that would shed light on the most important 

negative impacts of harassment on marine mammals. Further refinement of terms 

such as ‘‘significant potential to injure’’ and ‘‘significantly altered,’’ contained in both 

the version of H.R. 1835 that was reported out of the House Resources Committee 

as well as the administration’s MMPA reauthorization bill, would occur through 

rulemaking, which would provide for public input. 

The proposed harassment language in the version of H.R. 1835 that was considered by the House Resources Committee at the hearing on May 6, 2003, and contained in the Administration’s MMPA reauthorization bill would improve the Act by 

a) removing confusion and enforcement difficulties associated with the phrase ‘‘pursuit, torment, and annoyance,’’ which provides terms that are not defined in the 

MMPA and create a second element that the agencies must prove in cases alleging 

harassment; b) providing greater notice and predictability to the regulated community; c) sparing the public the regulatory burdens associated with obtaining 

authorizations for relatively benign activities; d) clarifying that acts directed at marine mammals such as chasing, closely approaching, or feeding wild marine mammals that disturb or are likely to disturb the animals would constitute harassment; 

and e) providing marine mammals with protection from activities that are likely to 

be harmful and from the cumulative effects of activities that take marine mammals 

both directly and incidentally. 

With regard to the term ‘‘significant potential to injure’’ in the proposed Level A 

definition in both versions of H.R. 1835 and the Administration’s bill, the existing 

phrase ‘‘potential to injure’’ could be interpreted to mean that any activity, no matter how remote the possibility, is subject to the Level A standard because one could 

interpret that almost every activity, no matter how benign or seemingly inconsequential, has the potential to fall within the Level A standard. This does not make 

sense. The agencies therefore tried to find terms that would focus attention on those 

activities that exceed a theoretical possibility of injury, without moving the standard 

so far toward actual injury that the language would be meaningless. The agencies 

felt that ‘‘significant potential’’ was a more appropriate threshold that would enable 

staff to focus on those activities that pose important biological and ecological impacts to marine mammals. Any greater specificity in the statutory language is not 

necessary and would limit agency discretion and flexibility. As stated above, NOAA 

intends to further define these terms through regulations. 

The term ‘‘significantly altered,’’ contained in both H.R. 1835’s and the Administration bill’s amendments to Level B harassment, was developed by the agencies in 

an attempt to focus on those activities which are likely to cause biologically significant disruptions in behavior important to survival and reproduction. In our deliberations the agencies interpreted ‘‘abandoned’’ and ‘‘significant alteration’’ of behavioral 

patterns to mean a temporary or permanent departure from a natural behavior pattern when such departure is biologically or ecologically significant. 

Litigation 

Question 4: In your responses to questions at the hearing, you stated that 

enforcement cases brought by NOAA for harassment under the MMPA have 

been ‘‘thrown out of court’’ based on the definition of that term added to 

the Act in 1994. Can you please elaborate by providing the names of those 

cases and briefly summarizing the facts and the rulings? 

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Answer: NOAA Fisheries would like to clarify any testimony provided at the hearing that expressed or implied that certain cases were ‘‘thrown out of court’’ based 

upon the definition of harassment added in 1994. NOAA Fisheries is unaware of any 

instance in which a court has dismissed an enforcement action because the existing 

definition of ‘‘harassment’’ is overly vague. However, NOAA has declined to prosecute several cases because it determined that it would be unable to prove that the 

activity in question constituted an act of ‘‘pursuit, torment, or annoyance.’’

Question 5: What is NOAA’s position on H.R. 1835? 

Answer: These comments refer to the version of H.R. 1835 that was reported out 

of the House Resources Committee on May 7, 2003, and not the version that the 

Resources Committee considered during their hearing on May 6, 2003. 

MMPA Concerns 

With regard to the MMPA, NOAA Fisheries supports some of the key amendments in H.R. 1835 including those pertaining to the incidental take permit program. With regard to the harassment definition, however, NOAA Fisheries believes 

that the harassment definition contained in the administration’s MMPA reauthorization bill would enable the agency to better uphold its responsibilities under the 

MMPA. Specifically, the Administration believed it was necessary to make more explicit in the definition of harassment that activities directed at marine mammals in 

the wild may constitute harassment because they are potentially injurious to the 

animals. This language, contained in the proposed amendment to section 3(18)(B)(ii) 

that would be made under Sec. 515 of the administration’s MMPA reauthorization 

proposal is intended to clarify that activities such as closely approaching, swimming 

with, touching, or feeding marine mammals may result in harassment. This second 

tier of the Level B harassment definition would help NOAA Fisheries and/or the 

USFWS better regulate, and where appropriate enforce, actions that may not lead 

to abandonment or significant alteration of the marine mammal’s natural behavioral 

pattern at the time, but that are likely to disrupt natural behaviors where such disruptions are associated with cumulative, long-term harm to marine mammals. 

ESA Concerns 

NOAA Fisheries has concerns about qualifying language and potential 

redundancies proposed by the ESA amendments in H.R. 1835. 

With regard to critical habitat, section 2(a) of the bill leaves questions as to how 

to interpret the language in practical application. This section proposes to change 

the requirement to promulgate critical habitat to the maximum extent prudent and 

determinable by striking the words ‘‘prudent and determinable’’ and inserting the 

word ‘‘necessary.’’ We are unclear as to how we would be expected to determine 

when critical habitat is necessary. The terms ‘‘prudent and determinable’’ are both 

clearly defined in regulation. Further, the courts have made clear that critical habitat has benefit to species and thus would be necessary in many, if not most, circumstances. 

Question 6: What effect would Section 2(a) of H.R. 1835 have on the 

Endangered Species Act? 

Answer: It is our understanding that the portion of the bill to which this question 

refers is no longer contained in the bill. 

Nonetheless, the policy statement contained in section 2(c)(1) of the ESA that ‘‘all 

Federal departments and agencies shall seek to conserve endangered species and 

threatened species and shall utilize their authorities in furtherance of the purposes 

of this Act’’ is a cornerstone of the ESA. Given the often dire condition of endangered and threatened species, NOAA Fisheries and USFWS rely on the cooperation 

of all federal entities in furthering this policy of the Act to ensure that these species 

are being considered in all major management actions. Section 2(a) of the version 

of H.R. 1835 that the Resources Committee considered at the hearing on May 6, 

2003 would have inserted the phrase ‘‘in so far as practicable and consistent with 

their primary purposes’’ after the words ‘‘threatened species,’’ in the current policy 

statement quoted above. Few federal agencies have as their primary purpose the 

conservation of listed species. Thus, this could be interpreted as giving nearly all 

Federal agencies the opportunity to limit their commitment to the conservation of 

endangered or threatened species. Further, this amendment could apply to all sections of the ESA, including those governing section 7 consultations and recovery actions. This could have potentially serious repercussions on species already at risk 

of extinction by limiting agencies’ commitment to minimizing impacts of federal actions and the recovery of species on federal lands. We must have the commitment 

of other agencies to realize our goal of conserving these species. 

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[Responses to questions submitted for the record by Judge 

Manson follow:]

Response to questions submitted for the record by The Honorable Craig 

Manson, Assistant Secretary for Fish and Wildlife and Parks, U.S. Department of the Interior 

Question 1: What is the length of time for the military to receive a decision on applications seeking to use critical habitat for military exercises? 

Response: When the effects to critical habitat are insignificant, we are often able 

to respond within 30 days. However, response times for consultations on military 

actions that affect designated critical habitat vary depending on the complexity of 

the action and its effects on the critical habitat. The U.S. Fish and Wildlife Service 

(Service) makes every effort to complete these consultations within the 135 days 

provided by the Interagency Cooperation regulations established at 50 CFR Part 

402. 

Question 2: It has been stated that the proposed changes to the definition 

of ‘‘harassment’’ will help the agencies better enforce the MMPA? Can you 

give us some examples? 

Response: We support the Administration’s proposed revision to the definition of 

harassment. The Service jointly administers the Marine Mammal Protection Act 

(MMPA) with the National Marine Fisheries Service. The MMPA gives each agency 

jurisdiction over different species that pose different management and enforcement 

issues. Under the proposed revised definition contained in the Administration’s legislative proposal to reauthorize the MMPA, the Service does not anticipate changes 

in the way we currently enforce the MMPA, or in the types of harassment cases 

we would pursue. However, we believe that the proposed revised definition provides 

greater certainty to the regulated public regarding what actions constitute harassment. 

Question 3: Has the Secretary of the Interior issued any incidental take 

authorizations? If so, for what activities and for what species of marine 

mammals? What type of mitigation measures does the Secretary require 

when issuing these authorizations? 

Response: Yes, the Secretary of the Interior has issued incidental take 

authorization under Section 101(a)(5)(A) of the MMPA. To date, all such 

authorizations have been for oil and gas industry activities in Alaska, and involve 

polar bear and Pacific walrus. In November 2002, the Service proposed regulations 

to authorize incidental take of manatees during the course of government activities 

related to watercraft and watercraft access facilities in Florida. However, in May 

2003, the Service published a notice in the Federal Register that effectively withdrew that proposed rule due to substantive comments and concerns raised during 

the rulemaking process regarding the information and analysis used to develop the 

proposed rule. The Service may propose such regulations again for manatees in the 

future. 

The Service finalized incidental take regulations for industry activities on the 

following dates: 

• June 14, 1991 for a period of 5 years in the Chukchi Sea; 

• November 16, 1993 for a period of 18 months; 

• August 17, 1995 for the period through December 15, 1998; 

• January 28, 1999 for a period of 12 months; and 

• March 30, 2000 for a period of 3 years. 

These regulations authorized the incidental, unintentional take of small numbers 

of polar bears and Pacific walrus during oil and gas exploration, development, and 

production activities in the Beaufort Sea and the adjacent northern coast of Alaska 

(with the exception of the 1991 polar bear/walrus regulations, which, as noted 

above, were for industry activities in the Chukchi Sea). These rulemakings addressed primarily passive forms of take resulting from unanticipated interactions 

with polar bears, not lethal takes. 

The regulations required mitigating measures that include: 

• Approved plans for monitoring and reporting the effect of authorized industry 

activities on polar bear and walrus; 

• A ‘‘Plan of Cooperation’’ that provides procedures on how industry will work 

with affected Alaska native communities to avoid interference with subsistence 

hunting of polar bears and Pacific walrus and to ensure the availability of the 

species for subsistence use; 

• Site specific strategies to avoid conducting activities in areas that may contain 

denning bears, such as seasonal or location limitations on activities in imporVerDate 0ct 09 2002 10:39 Nov 04, 2003 Jkt 087420 PO 00000 Frm 00159 Fmt 6633 Sfmt 6621 J:\DOCS\86854.TXT HRESOUR1 PsN: KATHY
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tant denning habitat, or avoidance of known polar bear den sites by one mile; 

and • Timing restrictions to minimize activities during peak den emergence. 

In addition, on July 25, 2003, the Service issued a proposed rule to authorize taking of polar bear and Pacific walrus in Alaska incidental to oil and gas industry activities for a period of 16 months. This proposed rule contains the regulatory scheme 

described above. 

Question 4: Although it is not addressed by this bill, as you may be 

aware, a study is underway to study the suitability and feasibility of designating a majority of Vandenberg Air Force Base lands as a unit of the 

National Park System. Do you believe including lands on an active military 

installation for possible inclusion with a National Park is counter productive to the mission of Vandenburg Air Force Base and our national 

preparedness? If so, why; If not, why not? 

Response: Vandenburg Air Force Base lies within an area of the Gaviota Coast 

of California that Congress directed the National Park Service to study as a potential addition to the National Park System. Although the study has not been finalized, the draft report finds that the study area, including Vandenburg Air Force 

Base, is not feasible for addition to the National Park System. 

We do not believe that such a study by the National Park Service, which is mandated by Congress, has any adverse impact on the military mission of Vandenburg 

or any other military installation. Studies by the National Park Service inform Congress whether certain lands might be eligible for addition to the National Park System and assess alternatives for their protection. In the case of active military bases, 

a study by the National Park Service normally discusses what alternatives might 

be considered by Congress if the land is no longer needed for military use. Any decision to follow up on such a study rests with Congress and not the National Park 

Service. 

Question 5: Would giving the Department of Defense the authority, in certain circumstances, to remove certain active military lands from future 

park studies alleviate hindrances to military readiness activities? 

Response: In addition to the information provided in the preceding answer, these 

park studies occur only as and when directed by Congress through the enactment 

of authorizing legislation. This Congressional direction includes the area to be studied. Therefore, Congress can now ensure that future park study legislation will not 

include military lands. 

Question 6: I understand that a landowner who has received ESA section 

10 permit coverage for certain activities through a habitat conservation 

plan (or ‘‘HCP’’) approved by the Fish and Wildlife Service may later have 

those activities reviewed under another regulatory process pursuant to 

section 7 of the ESA. The section 7 consultation process is triggered if the 

landowner requires permits or some other involvement of another federal 

agency. I also understood that this additional regulatory review often has 

the effect of delaying the implementation of activities already in compliance with the ESA and adding to their cost. 

Secretary Manson, could you explain to me why a landowner holding a 

valid section 10 permit would be subjected to this additional regulatory 

scrutiny and if the Administration has considered approaches to eliminating this extra step under section 7? 

Response: Because this is a statutory requirement, the Administration does not 

have the authority to eliminate this requirement. The Service is developing additional guidance that will expedite the section 7 review process for situations like the 

one you describe. We anticipate that the guidance will point to the biological opinion 

issued by the Service for the section 10 permit and Habitat Conservation Plan as 

also fulfilling the consultation responsibilities of any federal agencies that must subsequently approve activities that are covered by the Habitat Conservation Plan. As 

a result, there should be no additional regulatory delays associated with ESA 

compliance for activities that were covered in the HCP and the associated internal 

section 7 consultation the Service conducts when we issue the permit. 

Question 7: I am aware that the Fish and Wildlife Service has, on occasion, agreed to exclude areas covered by existing HCPs from critical habitat designations. However, I am also aware that the Service has been unwilling to apply this approach to HCPs that are approved after the initial 

designation of critical habitat. It seems to me that the Service should be 

equally willing to exclude an area from critical habitat regardless of 

whether the HCP was approved before or after the initial designation. 

Secretary Manson, could you explain why the Service would treat these 

two scenarios differently, and if the Administration had considered adoptVerDate 0ct 09 2002 10:39 Nov 04, 2003 Jkt 087420 PO 00000 Frm 00160 Fmt 6633 Sfmt 6621 J:\DOCS\86854.TXT HRESOUR1 PsN: KATHY
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ing a policy that clearly stated that areas covered by HCPs would not be 

subject to critical habitat designation, irrespective of when the HCP was 

approved, and that also directed the Service to use the public review process for the critical habitat designation as the basis for exempting existing 

and future HCPs? 

Response: The Service normally would exclude from critical habitat designation 

for a particular species those areas included in approved HCPs that provide coverage for the species. We have made a commitment to go back and revise critical 

habitat for future HCPs when they are completed, if resources allow. As you know, 

litigation over critical habitat has limited the resources available for this purpose. 

The Fish and Wildlife Service’s listing program’s limited resources and staff time 

are being spent responding to an avalanche of lawsuits, and court orders focused 

on critical habitat designations. We believe that our staff time could be better utilized focusing on those actions that benefit species through improving the consultation process, the development and implementation of recovery plans, and working 

to develop voluntary partnerships with States and other landowners. 

Revisions to critical habitat made in the year or so following a designation, while 

existing biological and economic information is still current, may be relatively short 

and inexpensive. Revisions that are made at times more distant from the original 

designation do, however, become more costly. As a result, revisions of critical habitat to exclude later HCPs may have to be postponed. 

Questions Submitted by the Minority 

Question 1: What is the Administration’s position on H.R. 1835? 

Response: While the Administration has not developed an official position on 

H.R. 1835, we do note that a number of the provisions contained in this legislation 

are similar to provisions in the Administration’s Readiness and Range Preservation 

Initiative, which the Department supports. 

Question 2: Is it the position of the Administration that Congress should 

eliminate the ESA’s critical habitat protection? If Congress were to take 

this step, what mechanisms would remain in place to ensure that habitats 

needed for species recovery are protected? 

Response: It is not the position of the Administration that Congress should eliminate the ESA’s critical habitat protection. The Administration looks forward to 

working with Congress to develop a workable solution to the current breakdown. 

For example, one option that has been proposed would move the requirement to designate critical habitat from the time of listing to the time of recovery planning and 

make it non-regulatory, as in the Chafee-Kempthorne bill, S. 1100, which was introduced in the 105th Congress. With that change, the determination of which areas 

are important for a species’ recovery would become a part of the recovery planning 

process, enabling the Service to determine a species’ habitat needs at a time when 

there is a greater knowledge base about the species than at the time of listing. However, there are undoubtedly other alternatives which would also productively address this situation, and we welcome a chance to work with you to explore these. 

We acknowledge that protecting habitat is essential to achieving recovery for 

many listed species. But both this Administration and the previous Administration 

have found that critical habitat designations add little, if any, benefits to the species. For example, the ESA requires consultation for activities that may affect listed 

species, including habitat alterations, regardless of whether critical habitat has been 

designated. We have also learned over time that, in almost all cases, active management of the habitat is far better than the ‘‘do no harm’’ requirement accompanying 

a critical habitat designation. However, because many landowners and land managing agencies strongly oppose critical habitat designations, the current critical 

habitat process has proven counterproductive to meeting the real needs of the species in many instances. 

A significant problem is that the original ESA mechanism designed to address 

this, critical habitat designation, cannot produce the management needed. Active 

cooperation cannot be compelled by this regulatory scheme. Instead, we believe far 

better results can be achieved by developing and promoting cooperative conservation 

efforts between landowners and land managers. 

Question 3: Does the Administration intend to issue a new regulation defining adverse modification of critical habitat as called for by the Fifth Circuit decision in Sierra Club v. U.S. Fish and Wildlife Service? If so, when 

will this regulation be proposed and finalized? In the meantime, what 

standard of protection of critical habitat is being used by the Administration in the Fifth Circuit? 

Response: The Administration is developing a proposed rule that would address 

the Fifth Circuit’s decision. Presently in the Fifth Circuit, in evaluating whether the 

158

effects of a proposed action constitute destruction or adverse modification of critical 

habitat, we analyze whether the effects of the proposed action appreciably diminish 

the value of the critical habitat for the recovery of the species. 

Question 4: Does ESA § 4(b)(2) give the U.S. Fish and Wildlife Service 

(FWS) the flexibility to exclude Defense Department lands from a critical 

habitat designation based on the existence of an adequate Integrated Natural Resource Management Plan (INRMP)? If so, what factors does FWS 

consider in determining whether an INRMP conserves listed species adequately enough to justify a ESA § 4(b)(2) exclusion? 

Response: Section 4(b)(2) allows the Service to exclude DoD lands based on the 

existence of an adequate INRMP, or their importance to national security, or other 

relevant reasons under which the benefit of excluding the lands from critical habitat 

might exceed the benefit of including them. However, this is an action which is discretionary. The Department of Defense is seeking certainty, and we agree that this 

is warranted. 

Question 5: Have the courts interpreting ESA § 4(b)(2) placed any limits 

on the U.S. Fish and Wildlife Service’s ability to exclude habitats from critical habitat designations pursuant to this provision of the ESA? If so, 

please describe those limits. If not, please explain why ESA § 4(b)(2) is an 

inadequate tool for substituting an INRMP for a critical habitat designation when FWS deems it appropriate. 

Response: The courts have ruled that the Secretary’s ability to exclude areas 

under section 4(b)(2) is discretionary. Under the applicable standards, as long as 

proper procedures are followed and there is a rational basis on the record for the 

decision, we would not expect a court to overturn a 4(b)(2) exclusion, whether related to INRMPs or other factors. However, as noted above, this is an action which 

is discretionary, while the Department of Defense is seeking certainty. 

Question 6: Please estimate the cost of cleaning up the backlog of critical 

habitat designations and provide a timeline and a detailed breakdown of 

how this estimate was derived. If Congress were willing to fund the cleanup of this backlog, would there be any remaining obstacle? 

Response: For the reasons described in this answer, we do not have adequate information for providing an accurate response to this question. We do know, however, 

that Section 4 of the ESA requires critical habitat be designated for every species 

listed as threatened or endangered. Currently only 306 species or 25% of the 1,211 

listed in the United States under the jurisdiction of the Service have designated 

critical habitat. Additionally, there are currently 257 candidate species for which 

listing proposals are believed to be warranted but which are precluded by higher 

priority actions. If these species are ultimately listed, critical habitat would need to 

be designated for most of them as well. Based on actual costs to complete recent 

critical habitat designations (between $200,000 - $600,000 per designation including 

economic analysis, NEPA compliance, and drafting and publication costs), it would 

cost hundreds of millions of dollars to designate critical habitat for all of these species as the Act requires. It would also take many years and substantial resources 

to completely address the backlog of critical habitat designations. Even if the resource issues related to the critical habitat backlog are addressed, the real issue is 

whether or not statutory critical habitats are effective in helping to conserve listed 

species. In 30 years of implementing the ESA, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of conservation resources. As Judge 

Manson testified, we believe that the service’s resources and time could be better 

spent focusing on those actions that benefit species through improving the consultation process, the development and implementation of recovery plans, and voluntary 

partnerships with States and other landowners. The present system for designating 

critical habitat is broken and, as Judge Manson testified, we are prepared to work 

with Congress to identify ways of providing necessary legislative relief. 

Question 7: Please provide a list of any contractors that have been retained by the Administration to perform economic impact analyses under 

ESA § 4(b)(2), the terms of those contractual arrangements, and copies of 

any instructions that have been provided to these contractors regarding 

how economic impact analyses should be performed. 

Response: The Service contracts with Industrial Economics (IEC) in Cambridge, 

Massachusetts, for completion of its economic analyses. In turn, IEC subcontracts 

out some of the analyses to other firms. Copies of the contracts and instructions are 

attached. 

Question 8: How much money would the Administration save if it were 

not to follow the Tenth Circuit’s New Mexico Cattle Growers ruling and to 

instead estimate only the impacts of critical habitat designation that are 

159

not redundant with the impacts of other ESA provisions? Please provide a 

timeline and a detailed breakdown of how this estimate was derived. 

Response: We made a policy decision to apply the 10th Circuit ruling nationwide 

because we believe it to be an accurate statement of the law. It has since been endorsed by courts in other circuits, including the 9th Circuit and here in the District 

of Columbia, and has not been rejected in any other circuit. Accordingly, it is not 

at all clear that we could legally pursue the course of action raised in this question. 

In addition, it is difficult to estimate precisely how much the Service might save 

by this approach. Much of the Service’s increased economic analysis costs result 

from doing a more robust analysis of the actual costs of critical habitat designations. 

Because we would still take the time to do these more robust analyses, we would 

likely still incur those associated costs. 

Question 9: When the Administration characterizes the critical habitat 

protection as essentially valueless, does it take into account the value that 

critical habitat designation plays in protecting habitats not occupied by 

the listed species? If so, what other ESA provision protects unoccupied 

habitats? What impact on listed species would result from removing critical 

habitat protections for unoccupied habitats? Approximately how many listed species will need to be restored to unoccupied habitat in order to recover? 

Response: The last element of the question highlights what we believe to be the 

most important aspect of the unoccupied habitat issue—that its value under the 

ESA is for reintroduction of the species in order to assist in recovery. However, a 

critical habitat designation cannot compel a private landowner, or a state or federal 

agency, to allow reintroduction on their land, or to manage their land to benefit the 

species. This can only result from the voluntary cooperation of the landowner or 

land manager. 

As noted in my answer to Question 2 above, it is our experience that many landowners—public and private—oppose critical habitat designations. Inasmuch as most 

listed species are found, in whole or part, on state and private lands, critical habitat 

designations have become significant obstacles to obtaining landowner cooperation 

in species conservation, and a critical habitat designation for unoccupied habitat 

thus often harms rather than assists recovery for the species for which it is designated. 

On the question in general, we do not track the overall amount of occupied and 

unoccupied designated critical habitat. However, because the ESA sets a higher 

standard for designation of unoccupied habitat than for occupied, and the legislative 

history instructs us to be ‘‘highly circumspect’’ in designating unoccupied habitat, 

it is reasonable to presume that most currently designated critical habitat is occupied habitat. 

For these reasons, we do not believe that a lack of regulatory coverage under the 

ESA of unoccupied habitat is a significant aspect of the critical habitat issue, or 

would have significant consequences for the recovery of listed species. 

Lastly, we note that there are a wide variety of other aspects of the ESA which 

can be used to help develop the cooperation of landowners and land managers. 

These include HCPs, Candidate Conservation and Safe Harbor Agreements, and the 

various ESA grant programs. Many other programs can be and are also used to benefit species’ habitat, including Private Stewardship Grants and the Partners for Fish 

and Wildlife program. 

Additional Questions Submitted by Congressman Nick Rahall 

Question 1: Does the Department of the Interior support Section 2(a) of 

H.R. 1835. 

Response: While the Administration has not developed an official position on 

H.R. 1835, we do note that a number of the provisions contained in this legislation 

are similar to provisions in the Administration’s Readiness and Range Preservation 

Initiative (RRPI). For example, Section 2(a) of H.R. 1835 would provide, among 

other things, statutory authority for the Department to exclude military facilities 

from critical habitat if there was an approved INRMP for that facility which addressed the species in question. This is similar to provisions of the RRPI, which the 

Department supports. 

Question 2: H.R. 1835 would make it the policy of the Congress that all 

Federal agencies must seek to conserve endangered and threatened species 

‘‘insofar as is practical and consistent with their primary purposes.’’ How 

would this affect other Federal agencies’ requirement to comply with reasonable and prudent alternatives developed by FWS? 

Response: Because this provision was removed from the bill during the Committee 

mark-up, we did not analyze its possible effect. 

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Question 3: Current FWS Policy I understand that, in general, the policy 

of the Secretary of the Interior has been to waive critical habitat designation when an adequately prepared Integrated Natural Resources Management Plan exists. 

If H.R. 1835 is enacted, how, if at all, would this policy change? Is my understanding correct? If yes, what factors does FWS consider in determining 

whether an INRMP conserves listed species adequately? 

Response: It has been our policy to continue the prior Administration’s practice 

of determining that a military base with an adequate INRMP generally does not 

meet the definition of critical habitat as set forth in section 3(5)(A) of the Act, in 

that no special management or protection would be needed. This policy also applies 

to non-military lands with adequate management plans. The Service has considered 

three factors in evaluating INRMPs and non-military management plans that the 

plan provides a conservation benefit to the species, that it provides assurances that 

the plan will be implemented, and that it provide assurances, usually through monitoring and evaluation, that the conservation effort will be effective. 

If H.R. 1835 were enacted in the version reported by the Committee, we would 

still evaluate the INRMP to make such a determination. 

Question 4: Consideration of Relevant Impacts - Section 4(b)(2) of the 

ESA reads, in part, ‘‘the Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as critical habitat.’’ 

Have the courts interpreting ESA § 4(b)(2) placed any limits on the U.S. 

Fish and Wildlife Service’s ability to exclude habitats from critical habitat 

designations pursuant to this provision of the ESA? If so, please describe 

those limits. If not, please explain why ESA § 4(b)(2) is an inadequate tool 

for substituting an INRMP for a critical habitat designation when FWS 

deems it appropriate. 

Response: The courts have ruled that the Secretary’s ability to exclude areas 

under section 4(b)(2) is discretionary. Under the applicable standards, as long as 

proper procedures are followed and there is a rational basis on the record for the 

decision, we would not expect a court to overturn a 4(b)(2) exclusion, whether related to INRMPs or other factors. However, this is an action which is discretionary, 

while DoD is seeking certainty. 

Question 5: Litigation - Several pages of your written testimony talk 

about the effects of litigation on the U.S. Fish and Wildlife Service. Can you 

tell me how many of these lawsuits have been brought against the FWS for 

critical habitat designation, or lack thereof, on military land? 

Response: The Service has been sued many times for failure to designate critical 

habitat, and many of these suits have been about critical habitat for species that 

occupy DoD lands. However the Service has never been sued specifically for designating critical habitat on military lands, or for failing to designate critical habitat 

specifically on military lands. The concerns expressed in the DoD statements relate 

to lawsuits over designation of critical habitat for species that occupy military lands, 

and the concern in my statement over lawsuits, insofar as it relates to DoD, is that 

a decision in a case not related to that Department could be interpreted as precluding our current practice of exempting DoD lands with INRMPs under section 

3(5)(A). 

Has this case been settled? When do you expect a final decision? 

Response: As noted above, there is no specific lawsuit applicable here. 

What effect would the RRPI have on your litigation load given the small 

percentage of lawsuits that regard military lands? 

Response: It is not clear what affect the Range and Readiness Preservation Initiative (RRPI) would have on our litigation workload. It is always possible that the implementation of new statutory authority will be subject to litigation. 

Question 6: You mention in your written testimony voluntary partnerships with States that include the military agencies. But many of the partnerships that include military lands are mandated by the Sikes Act. 

To what extent do these mandated partnerships depend on voluntary cooperation between the DoD and the FWS? 

Are there instances where the cooperation has not been volunteered to 

an extent to make the partnership successful? 

Response: We have provided a sample of the many examples where military installations have undertaken voluntary cooperative actions that go well beyond the 

scope of Sikes Act requirements. We are not aware of instances where cooperation 

has not been volunteered to an extent to make the partnership successful. 

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Camp Shelby 

The Service; the Mississippi Army National Guard; Mississippi Department of 

Wildlife, Fisheries, and Parks; and the U.S. Forest Service are in the final stages 

of developing a Candidate Conservation Agreement for the Camp Shelby burrowing 

crayfish. The goal of the Agreement is to conserve the species and its associated 

wetland bog habitat through habitat management, habitat protection, habitat and 

species monitoring, and education and information transfer. Implementation elements include collaborative actions among the parties on coordinating conservation 

activities, conservation schedule implementation, funding conservation actions, and 

assessing conservation progress. A multi-agency implementation team will ensure 

that the Agreement’s expected goals and objectives are being realized, or will adjust 

efforts accordingly. 

The parties to the Agreement believe that, with proper management, protection 

of this species and its habitat are compatible with the primary military training and 

other activities conducted by the Mississippi Army National Guard and the U.S. 

Forest Service. On-going and future management actions as outlined in the Agreement should ensure conservation of the species and preclude the need for its protection under the ESA. 

Eglin AFB 

Eglin AFB participates in the Gulf Coastal Plains Ecosystem Partnership 

(GCPEP). This partnership between The Nature Conservancy, state, federal, and 

private landowners was originally in response to the dramatic loss of longleaf pine 

habitat in the southeastern U.S. GCPEP promotes connectivity of managed lands 

in Alabama and the Florida panhandle with a mission that includes sustainability 

of native plants and animals (including over 160 rare and imperiled species), and 

the conservation and restoration of the integrity of ecosystems. The partnership, 

which covers 845,800 acres (and is growing), contains more than 20 percent of the 

remaining longleaf ecosystem and comprises the largest remaining nearly contiguous block of longleaf pine in the United States. 

Other examples of voluntary cooperation between the Service and Eglin AFB include: 

• Eglin AFB provides ‘‘donor’’ red-cockaded woodpeckers (RCWs) to be 

translocated as part of the ‘‘Southeastern Translocation Cooperative’’ to other 

recipient lands whose populations are in danger of extirpation; 

• Eglin AFB funds two Service aquatic biologists that work on the reservation 

doing stream surveys and identifying aquatic ecosystem restoration needs; 

• Eglin AFB has purchased sonic tags for Gulf sturgeon marine habitat studies; 

• Eglin AFB in Florida hosted a large Earth Day event in 2002. Twenty thousand 

students participated with over 200 exhibitors, including the Service. 

Fort Polk 

In Louisiana, Fort Polk, home of the Joint Readiness Training Command (the 

most intensive force-level training in the country), has long funded two Service wildlife biologists who conduct a variety of habitat management and endangered species 

enhancement and recovery activities (such as habitat improvements in support of 

the western Louisiana recovery population of the RCW which includes adjacent 

lands on the Kisatchie National Forest (KNF)). Fort Polk has also entered into cooperative agreements with the Forest Service to use those adjoining KNF lands to 

meet their training needs, and has actively supported land stewardship and enhanced RCW management on those lands. An active participant in the ‘‘West Gulf 

Coastal Plain RCW Translocation Cooperative,’’ Fort Polk has also played a key role 

in the partnership that developed the soon-to-be-signed Louisiana Pine Snake Candidate Conservation Agreement covering Texas and Louisiana. 

Fort Bragg 

Fort Bragg in North Carolina is a leader in voluntary cooperation that extends 

far beyond the measures required by the Sikes Act. Their former base commander 

Col. Davis received a conservation award last year from the Regional Director (of 

the Southeast Service Region). 

Fort Bragg has consistently provided funding and support to the North Carolina 

Sandhills Conservation Partnership. In addition, Fort Bragg has voluntarily entered 

into a cooperative agreement with the Nature Conservancy to purchase conservation 

lands under the Private Lands Initiative. Fort Bragg also entered into an Interagency Agreement with the Service for support of the North Carolina Sandhills Safe 

Harbor Program. Under this program the Service works with private landowners to 

restore their lands to benefit the recovery of the RCW. 

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Fort Bragg has also sponsored a workshop for the Sustainable Sandhills Initiative. Under this initiative, Fort Bragg will work cooperatively with the surrounding 

counties to achieve Smart Regional Land Use Planning and to write a 25 year sustainability study. 

McChord AFB and Fort Lewis 

A study on phenology, nesting, success, habitat selection, and census methods for 

the streaked horned lark was conducted by the Washington Department of Natural 

Resources with partial funding by the Service on McChord Air Force Base and Fort 

Lewis. Other partners were Washington Department of Transportation and the Nature Conservancy. This study vastly improved our knowledge about the streaked 

horned lark, a candidate species. It also resulted in Fort Lewis voluntarily modifying their mowing schedules at their airfield to minimize nest destruction, not renewing a permit for a model airplane club that was conducting activities where 

horned larks were nesting, and posting of signs limiting entry at the nesting site. 

Naval Air Station on Whidbey Island 

A University of Washington project to study experimental restoration techniques 

for the golden paintbrush was partially funded with Service Coastal Program dollars 

through the Nature Conservancy with the Naval Air Station on Whidbey Island. 

The Service botanist in the Western Washington Office also provided technical assistance. The project consisted of experimental outplantings of the golden paintbrush under different treatments to develop improved restoration techniques. 

Species-at-Risk Project 

The Department of Defense, NatureServe, and local Natural Heritage Programs 

are working with the Service to develop management plans for selected species-atrisk occurring on military lands. The Department of Defense has committed 

$130,000 to the effort, which means devoting about $32,500 for each of four species, 

ideally from each branch of the military service. For each of the four species selected, the Service and the local Natural Heritage Program will help DoD identify 

the threats to the species and develop management guidelines to prevent further declines in the species on or near the installation where it occurs. If any of these species are subsequently listed, conservation efforts identified in the management plans 

could facilitate recovery and section 7 consultations. 

Question 7: Effectiveness of INRMPs - In your written testimony you say 

that INRMPs are an ‘‘effective vehicle’’ through which DoD can plan for the 

conservation of fish and wildlife species. Do you have any data on which 

to judge the effectiveness of INRMPs at actually conserving fish and wildlife species? 

Response: Integrated Natural Resources Management Plans are a relatively recent requirement—completed plans were required for relevant installations by November 2001. Prior to the use of INRMPs, Cooperative Plans to manage natural resources were developed by installations in coordination with the Service and states. 

The continued success of the military’s recreational hunting and fishing programs, 

in addition to the diverse populations of wildlife present on installations, attest to 

the successful management provided by those plans. We anticipate that INRMPs 

will build on the success of the Cooperative Plans. With the Sikes Act’s requirement 

for INRMPs, management plans now require an ecosystem management approach 

and more intense coordination and cooperation among military installations, the 

Service, and states. As the plans are implemented in years to come, this will ensure 

an ‘‘effective vehicle’’ for healthy and balanced management practices beneficial to 

all plant and animal species on lands managed by DoD. 

Question 8: Camp Pendleton numbers 

What is the current percentage of total acreage at Camp Pendleton designated as critical habitat? 

Response: A total of 4,622 acres have been designated critical habitat on Marine 

Corps Base Camp Pendleton, most of which (about 2,767.82 acres) is leased to California State Parks. This acreage total takes into account overlapping areas designated for the individual species and does not include areas designated, but now 

vacated, by the courts. Thus, about 3.69 percent of the Base’s total land area 

(125,118 acres) is designated critical habitat: 1.49 percent is on Marine Corps Base 

Camp Pendleton actively used by the military and 2.2 percent is on lands leased 

to California State Parks by Camp Pendleton. 

Is there proposed acreage under active consideration? Why or why not? 

Response: In 2000, the Service proposed approximately half of Camp Pendleton 

as critical habitat for the gnatcatcher. Other proposals for other species raised that 

to approximately 57% of the base. The Service’s final critical habitat designations 

for the gnatcatcher and other species exempted both Camp Pendleton and MCAS 

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Miramar from critical habitat in the initial use of the 3(5)(A) exemption for an 

INRMP. Both areas were also excluded under section 4(b)(2), and the same approach was used for the other species. The final designations for the gnatcatcher 

and some of the other species were subsequently challenged in court. The Service 

then withdrew the proposals for revision. 

On April 22, 2003, the Service published a revised proposed rule to designate critical habitat for the gnatcatcher and on April 24, 2003, we published a revised proposed rule to designate critical habitat for the San Diego fairy shrimp, the two main 

species at Camp Pendleton. The comment period for both of these rules closed on 

June 23, 2003. The acreage proposed at Camp Pendleton for each species is provided 

in the table below. The areas proposed are primarily non-training areas based on 

the Service’s understanding of the base’s training activities and include lands leased 

to State Parks and for agriculture use, lands between and adjacent to housing areas, 

and the Cocklebur Sensitive Area that was ‘‘set aside’’ (designated as a non-training 

area) to offset impacts from construction of a Navy Hovercraft facility. 

However, the chart does not tell the entire story, as we may alter our proposal 

in the final rule, and whatever final designation we make for these species could 

well be challenged again in court. There is of course no way to predict the outcome 

of such a challenge, or how it might impact Camp Pendleton.

[Responses to questions submitted for the record by Rear 

Admiral Moeller follow:]

Responses to questions submitted for the record by RADM Robert T. 

Moeller, Deputy Chief of Staff for Operations/Plans and Policy, U.S. 

Pacific Fleet, U.S. Navy 

Question 1: You have heard in the past few weeks and you will probably 

hear today that the military is looking for exemptions from the ESA and 

MMPA so that you can get out of your environmental responsibilities under 

these acts. How do you respond? 

Answer: DOD is not seeking exemptions from the ESA and MMPA, nor any other 

environmental statute. Allegations to the contrary are erroneous and misleading. 

DOD will continue to comply with the same environmental laws as private organizations when engaged in the same activities, and as such DOD is subject to all federal 

environmental laws. The military also has a unique responsibility to prepare for and 

win armed conflicts—unlike any private organization, state, or local government—

and has land specially set aside to test and train for that purpose. The changes 

being studied are narrowly focused on that testing and training, i.e., ‘‘military readiness activities.’’ The changes would not affect DOD compliance with environmental 

laws in the management of its infrastructure or industrial operations that are similar to those of private companies. For example, DOD will continue to comply with 

all applicable environmental laws in the way that it runs its sewage treatment 

plants, paint booths, management of industrial hazardous wastes, etc. and DOD will 

continue all environmental cleanup programs. With respect to DOD’s unique military readiness activities, the proposals simply provide greater flexibility to protect 

both our environment and military readiness. In this regard, DOD is seeking legislative clarification where the ESA and MMPA are being applied beyond their original legislative intent. We are looking at a combination of narrowly focused measures 

to enhance readiness while maintaining our commitment to environmental stewardship. 

Question 2: When INRMPS are developed who sets the recovery goals for 

the species in question? 

Answer: The U.S. Fish and Wildlife Service (USFWS) has the responsibility under 

the Endangered Species Act to develop species recovery plans and goals. 

Question 3: How does NEPA fit into the process of INRMPs? 


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Answer: Navy policy and guidelines require completion of NEPA documentation 

for INRMPs. Navy completed separate NEPA documentation for each INRMP and 

required that a Finding of No Significant Impact be signed before the INRMP development process was considered to be complete. 

Question 4: Why has DoD not exercised Section 7(j) of the ‘‘God Squad’’ 

under ESA? 

Answer: The Department of Defense has not used the national security exemption 

in section 7(j) of the Endangered Species Act (ESA) because, to date, no DoD action 

has placed the continued existence of any threatened or endangered species in jeopardy. Under section 7(j), the Secretary of Defense may direct the Endangered Species Committee (a committee composed of various Cabinet and sub-Cabinet level officials) to exempt a DoD action from the prohibitions in the ESA when such an exemption is necessary for national security. Very few proposed DoD actions, however, 

have even the potential to threaten the continued existence of any species; generally 

DoD actions are confined to a discrete area for a limited time, while most species 

listed under the ESA are somewhat more widely dispersed. Hence, DoD would have 

to utilize the section 7(j) exemption only in the rare instance in which a particularly 

destructive, critical, national security activity was required to take place in an area 

that represented the full range of a particular species. Notwithstanding the rarity 

of such an occurrence, the ability to use the exemption is a valuable hedge against 

future emergencies. 

A more common scenario for DoD under the ESA is that a proposed action will 

result in the take of a small number of individual listed species members or result 

in the destruction or adverse modification of critical habitat—but not in a manner 

that threatens the continued existence of the entire species. The ESA provides a 

means, through consultation, for a federal agency to obtain an incidental take statement from the appropriate agency (U.S. Fish and Wildlife Service or National Marine Fisheries Service) that covers these situations. Although such consultation, is 

time-consuming and, on occasion, results in requirements for mitigation that 

adversely impacts the value of a particular test or training exercise, DoD takes its 

responsibility to conserve species seriously and has not suggested that the 

requirement to consult on military readiness actions that could take threatened or 

endangered species be eliminated altogether. DoD has limited its legislative request 

on the ESA; it asks Congress only to allow the Secretary of the Interior not to designate critical habitat on a military installation when the Interior Secretary finds 

that an integrated natural resources management plan (INRMP) for that installation provides the special management considerations necessary to protect the species for which critical habitat would otherwise be designated. 

DoD’s suggested approach is more practical than its use of the section 7(j) exemption under the ESA. Although the existing exemption could be used to exempt use 

of designated critical habitat on an action by action basis, DoD believes it is unacceptable, as a matter of public policy, for indispensable readiness activities to require repeated invocation of emergency authority—particularly when narrow clarifications of the underlying regulatory statutes would enable the continuation of both 

essential readiness activities and environmental protection. Use of the INRMP, instead of designating critical habitat, would allow DoD to plan, in coordination with 

the U.S. Fish and Wildlife Service and the appropriate State wildlife agency, its use 

of a range (for example) over time without having to engage in multiple consultations with USFWS over what activities are, or are not, appropriate in an area that 

might also be used for species conservation. This would preserve efficiencies in both 

DoD and Interior. The narrowness of this proposed exception to critical habitat, 

however, is such that it would principally affect consultation on unoccupied habitat. 

Because listed species are present on occupied habitat, DoD would remain obligated, 

under section 7(a)(2) of the ESA, to consult with USFWS and NMFS on its actions 

in such areas to ensure that they do not jeopardize the continued existence of any 

threatened or endangered species. 

Question 5a: Included in your testimony, you talk about the Least Tern 

and the Western Snowy Plover populations at the Naval Amphibious Base 

Coronado. Specifically you state that Least Tern nests have increased from 

187 to 825 and Western Snowy Plover nests have increased from 7 to 99. 

This has been over a 9 year period. Is this under an INRMP? 

Answer: The Least Tern and Western Snowy Plover have been successfully managed under an INRMP at Naval Amphibious base Coronado since 1998. 

Question 5b: What are the recovery goals set by the USFWS on this? 

Answer: There are presently no such goals in place. 

Question 6a: You testify that military training areas were originally located in isolated areas and now they are surrounded by development, leaving the military lands as the only relatively undisturbed habitat for many 

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species. Does this mean that your stewardship of these lands has actually 

come back to bite you? 

Answer: Multiple encroachment issues continue to constrain DOD’s ability to 

maintain the combat readiness of America’s military forces and many issues, such 

as development around our ranges. Many military facilities have become wonderful 

environmentally protected areas, largely due to DOD management processes and 

the exclusion of other high intensity land uses, which typically cause much more 

habitat damage than testing or training. The land, sea, air, and space we use to 

test our weapons and train our people are essential national assets, but environmental and other restrictions can have unintended consequences that increasingly 

limit the military’s ability to effectively train for combat. 

Question 6b: If you cannot use these lands for training any more, what 

options do you have other than not training? 

Answer: When one considers that our forces must train as they fight and will 

fight as they train, there are no viable options providing a long-term solution. Some 

individuals allege that models and simulators and additional ‘‘work-arounds’’ are 

possible options. However, models and simulators can teach only so much. Military 

training involves integrating unit maneuvers with employment of munitions under 

conditions of stress. This can be done safely only on training ranges set aside for 

that purpose. Similarly, ‘‘work-arounds’’ will seriously degrade training and readiness when they go beyond being an inconvenience to fundamentally undercutting 

the realism and quality of training. The bottom line is that some ‘‘work-arounds’’ 

may satisfy regulatory rules designed for non-military activities but do not meet 

military training requirements. DOD is increasingly forced to restrict or relocate 

training and testing when encroachment affects our ranges. Both alternatives degrade the readiness of U.S. military forces. 

Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) 

Sonar 

Question 7a: If you were to receive an incidental take permit for the use 

of the SURTASS LFA sonar system and your subsequent monitoring on its 

effects on marine mammals showed that the sonar caused serious injury or 

death to a number of marine mammals, what would the result be? 

Answer: In accordance with the incidental take permit, any observed effects on 

marine mammals would be promptly reported to the National Marine Fisheries 

Service (NMFS). In parallel, the Navy would reevaluate SURTASS LFA operations. 

Question 7b: Would your permit be revoked or new mitigation requirements be written into the permit? 

Answer: NMFS would evaluate the situation and determine the required action 

with regards to the permit. 

Question 8: Although the stranding incidents in the Bahamas were not 

related to low frequency sonar, what was the Navy’s response to using 

similar sonar systems in similar bottom types? Has the Navy changed their 

testing and training operations as a result of the lessons learned in the Bahamas? 

Answer: After the Bahamas stranding, the Navy and NMFS launched a joint investigation into the potential causes of the stranding and issued the Joint Interim 

Report, Bahamas Marine Mammal Stranding Event of 15-16 March 2000, in December 2001. The joint interim report included the following mitigation recommendations: 

a. Forego multi-ship, peacetime active sonar transmissions from mid-range tactical sonars in the Northeast and Northwest Providence Channels unless required 

for National Security reasons. 

b. The Navy will carefully assess and closely scrutinize future training and training areas with an eye toward avoiding those situations where the combination of 

factors presented in this report (oceanography, bathymetry, sonar usage, etc.*) 

would be likely to occur. 

c. If factors cited in the report exist at another location and relocation of the action is not feasible, and the action must proceed, Navy will adhere to the following 

procedures in the absence of a Letter of Authorization (LOA) or an Incidental Harassment Authorization (IHA): 

(1) Immediately before the operation, use every facility or asset available 

to visually and acoustically survey for marine mammals; 

(2) Establish a zone of influence appropriate to the existing oceanographic conditions and sonar source level settings; 

(3) Employ properly trained lookouts; 

(4) Implement shutdown procedures if marine mammals are detected 

within the zones of influence established for those species; and 

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(5) Immediately upon conclusion of the operation (where feasible, usually 

in near shore waters), survey for injured, disabled, or dead marine mammals using every facility or asset available. Notify NMFS if animals are 

found so an appropriate stranding response can be implemented. 

d. NMFS will continue to conduct broad area surveys of marine mammal locations, migratory pathways, and habitats that can be used by Navy planners in selecting exercise sites. 

The Navy reviews all major exercises for compliance with the Endangered Species 

Act (ESA) and Marine Mammal Protection Act (MMPA), and when appropriate, pursues IHAs or LOAs under the MMPA. Consideration of the factors in the Bahamas 

report is included in each of these reviews, and applicable mitigation guidelines are 

promulgated by message. No multi-ship ASW training has been conducted in the 

Providence Channel since March 2000. To the extent possible and consistent with 

operational requirements, the Navy selects exercise locations to minimize potential 

adverse effects to marine species of concern (e.g., exercises scheduled near shore 

have been moved into deeper water towards areas of less favorable habitat and historically lower presence of marine mammals). In addition, the Navy, under its At 

Sea Policy, is reviewing each level of activity—major exercises and routing training 

events—for environmental compliance and mitigation concerns. 

*Note: The report lists the full range of factors such as sound propagation characteristics (e.g., surface duct), unusual underwater bathymetry, intensive use of multiple sonar units, a constricted channel with limited egress avenues, and the presence 

of beaked whales. 

Question 9: How much testing of marine mammal hearing is being done 

by the Navy and/or NMFS? If not for this type of research, how much would 

we know about the acoustic ranges of various marine mammals? 

Answer: The Navy supports almost all marine mammal hearing testing/research 

in the U.S. and internationally. Since 1991, the Navy has invested nearly $10 million to studies of marine mammal low frequency hearing sensitivity, critical ratios, 

critical bandwidths, masking, effects of diving on hearing and temporary threshold 

shift thresholds for seven species of marine mammals, plus fish and sea turtles. In 

addition the Navy has supported studies of marine mammal, sea turtle and fish 

hearing anatomy and the derivation of general predictive models of hearing function 

for fish and marine mammals. NMFS does not conduct hearing research, and currently provides small amounts of funding (less than $200,000 per year) in support 

of ancillary activities to hearing studies, such as providing stranded animal specimens to researchers working on anatomical studies. 

Without Navy support almost nothing would be known of marine mammal hearing. Navy efforts began in the early 1960’s with the discovery of dolphin sonar, related studies of seal and sea lion hearing, and development of the animal care and 

training procedures that are used worldwide today. A recent external independent 

review of the most recent progress in the ONR Temporary Threshold Shift program 

is posted on the ONR website (www.onr.navy.mil, keyword: mammal). That report 

assesses the current status of research in the field, and provides detailed recommendations for potential new areas of study, such as using evoked potential 

audiometric techniques to obtain rapid hearing assessments from new species not 

readily tested with existing methods (e.g. large baleen whales and beaked whales). 

Although other agencies, including the Minerals Management Service, are sponsoring an increasing amount of marine mammal behavioral research, practically all 

work on hearing thresholds is and has been supported by the U.S. Navy. 

Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) 

Sonar 

Question 10a: You testify that the LFA sonar system needs to be tested 

and evaluated to be effective. This implies that the permits you were requesting were to see how well the system works and were not just for routine training. Is that correct? 

Answer: The permit was requested, and granted, for training, testing, and routine 

military operations. National Marine Fishery Service (NMFS) regulation Part 216, 

Subpart Q—Taking of Marine Mammals Incidental to Navy Operations of 

SURTASS LFA—50 CFR 216.180 states, ‘‘The authorized activities...include the 

transmission of low frequency sounds from the SURTASS LFA sonar and the transmissions of high frequency sounds from the mitigation sonar...during training, testing, and routine military operations of SURTASS LFA sonar.’’

Question 10b: Would part of that testing be to see how the sonar system 

affects marine mammals? 

Answer: Yes. As part of the required monitoring mitigation set forth in the Regulation and Letter of Authorization (LOA), any effects of LFA on marine mammals 

167

noted during operations will be recorded and reported to NMFS in quarterly and 

annual reports. 

Under the Regulation and LOA, NMFS stated that while it believes that the research conducted to date is sufficient to assess the impacts of LFA on marine mammals, it would be prudent to continue research over the course of the period of effectiveness of the regulation. Research on the effects of low frequency sound and LFA 

on marine mammals may or may not involve the use of the LFA array depending 

on the nature of the research. 

Question 10c: What types of mitigation and monitoring requirements did 

the agency put into your permit? 

Answer: There are geographic restrictions as well as monitoring requirements associated with the permit. 

Geographic Restrictions: NMFS adopted the Navy proposed action in the Final environmental impact statement (EIS): SURTASS LFA sonar operations would be conducted to ensure that the sound field does not exceed 180 dB (i.e., the zone of potential for injury to marine mammals) at a distance of 12-nm (22-km) from any coastline, including islands, nor in designated offshore biologically important areas, those 

portions of the world’s oceans that are outside the 12-nm (22-km) coastline where 

marine mammals of concern congregate in high densities to carry out biologically 

important behaviors, during the biologically important season(s) for that particular 

area. The 12-nm (22-km) restriction includes almost all marine-related critical habitats and National Marine Sanctuaries (NMSs). However, some parts of NMSs, that 

are recognized to be important for marine mammals and are outside 12 nm (22 km), 

were added to the restricted areas by NMFS during rule making. 

In addition to at the geographic limitation set forth by the 180 dB sound field, 

designed to protect marine mammals and other noise sensitive marine animals, the 

Navy will establish a similar, overlapping geographic limitation for human divers 

at 145 dB re 1 μPa (rms) around all known human commercial and recreational diving sites. Although this geographic restriction is intended to protect human divers, 

it will also reduce the LF sound levels received by marine mammals that are located 

in the vicinity of known dive sites. 

Monitoring requirements: NMFS adopted, with modification, the Navy proposal in 

the Final EIS to use visual, passive acoustic, and active acoustic monitoring of the 

area surrounding the SURTASS LFA sonar array to prevent the incidental injury 

of marine mammals that might enter the 180-dB SURTASS LFA mitigation zone. 

In order to minimize risks to potentially affected marine mammals that may be 

present in waters surrounding SURTASS LFA sonar, the Navy will: (1) conduct visual monitoring for marine mammals and sea turtles from the vessel during daylight 

hours; (2) use passive SURTASS LFA sonar to listen for vocalizing marine mammals; and (3) use high frequency active sonar (i.e., High Frequency Marine Mammal 

Monitoring [HF/M3] sonar similar to a commercial fish finder) to monitor/locate/

track marine mammals than may pass close enough to the SURTASS LFA sonar’s 

transit array to enter the 180 dB sound field (LFA mitigation zone). 

NMFS decided in the Final Rule to augment the 180-dB LFA mitigation zone to 

ensure to the greatest extent practicable that marine mammals are not subject to 

potential injury. In that regard, as an added mitigation measure, NMFS established 

an interim ‘‘buffer zone’’ extending an additional 1 km (0.54 nm) beyond the 180-

dB LFA mitigation zone. 

Question 10d: Would these mitigation measures have minimized the harm 

to marine mammals? 

Answer: Yes. The conclusion of the SURTASS LFA Final EIS was that under the 

preferred alternative (with geographic restrictions and monitoring mitigation as 

noted above) the potential impact on any stock of marine mammals from injury is 

considered negligible, and the effect on the stock on any marine mammal from significant change in a biologically important behavior is considered minimal. NMFS, 

as a cooperating agency on the Final EIS, concurred with this conclusion. 

Question 10e: What would happen if the mitigation measures were not effective? 

Answer: If the mitigation measures were ineffective, LFA transmissions would be 

suspended until corrective actions were completed. For example, if the High Frequency Marine Mammal Monitoring (HF/M3) sonar were to become inoperative, 

LFA transmissions would be suspended until it was able to perform adequately.

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