TESTIMONY OF CRAIG MANSON, ASSISTANT SECRETARY FOR FISH AND WILDLIFE AND PARKS, DEPARTMENT OF THE INTERIOR, BEFORE THE SUBCOMMITTEE ON MILITARY READINESS, HOUSE COMMITTEE ON ARMED SERVICES, REGARDING IMPLEMENTATION OF ENVIRONMENTAL AND NATURAL RESOURCE LAWS AND MILITARY READINESS ISSUES
March 14, 2002
Mr. Chairman and members of the Subcommittee, I am Craig Manson, Assistant Secretary for Fish and Wildlife and Parks in the Department of the Interior. 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 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, the Migratory Bird Treaty Act (MBTA), 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.
Secretary Norton understands the unique nature of the duties and mission of the military and the need to train to be ready to fight. On a personal note, I've seen these issues from both perspectives, having served nearly thirty years on active duty in the Air Force, in 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. That opinion is shared by Secretary Norton and throughout the Department of the Interior.
The Department interacts with Department of Defense activities through 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 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 has done a commendable job at working to strike a balance between its 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 Endangered Species Act (ESA) was passed in 1973 as Congress recognized that a "safety net" was needed to conserve vulnerable plant and animal species that, despite other conservation laws, had become in danger of extinction.
The Department of Defense (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. The 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. I'd like to give some examples of these partnerships.
United States Air Force Academy, Colorado
The U.S. Air Force Academy recognized the value of long-range planning when it commissioned a baseline study of small mammals in 1994. The survey aided the Air Force in identifying the presence of the Preble's meadow jumping mouse, which at the time was a candidate for listing. A species receives protection under the ESA when it is listed as endangered or threatened. In order to help DOD agencies plan their activities, the Fish and Wildlife Service shares information on listing candidates and upcoming listing actions. As a result, the Academy entered into a partnership with the Colorado Natural Heritage Program to study the mouse and provide information for management and conservation strategies.
When the jumping mouse was listed as threatened in 1998, the Fish and Wildlife Service took steps to ensure that the Academy would be a full partner in the species' management and recovery. The Academy's natural resources manager is a member of the Science Advisory Team, a group of scientists and managers dedicated to compiling the best science available to support the conservation of the mouse throughout its range. An Academy representative also holds a position on the executive committee for a habitat conservation plan (HCP) under development for El Paso County, Colorado. Through the HCP process, the Academy will coordinate with non-Federal entities in the development of regional conservation strategies for the mouse. In addition, at the request of the Fish and Wildlife Service, the Academy's natural resources manager is representing the Air Force on the Preble's Meadow Jumping Mouse Recovery Team, which is charged with developing a plan to restore the species to a secure status.
The Air Force also initiated a programmatic formal consultation under section 7 of the ESA for its Preble's Meadow Jumping Mouse conservation management plan and conservation agreement. The biological opinion provided by the Fish and Wildlife Service on the Academy's conservation management plan significantly reduced the regulatory burden on both the Academy and the Fish and Wildlife Service by removing the need for section 7 consultations for each instance of regular maintenance.
Camp Pendleton, California
In 1999, substantial areas of Camp Pendleton were included in proposed designations of critical habitat for 5 of the 17 listed species that are present on the base. The Fish and Wildlife Service was able to work within the provisions of the ESA to address concerns expressed by the base regarding the proposed designations.
The ESA requires the Fish and Wildlife Service to determine whether designation of critical habitat is prudent and determinable. Under sections 4(b)(2) and 3(5)(A) of the ESA, the Secretary of the Interior can exclude areas from critical habitat designations when compelling economic interests outweigh the expected benefits of designation, and when special management considerations are implemented. These determinations are made after the Fish and Wildlife Service considers the economic impacts of the proposed designation and other potential effects by conducting an economic impact analysis. The ESA requires completion of such an analysis by the Fish and Wildlife Service for each critical habitat proposal that it makes.
The 1999 proposals for critical habitat on Camp Pendleton would have designated over 50 percent of the base as critical habitat for listed species, including the California gnatcatcher, the Tidewater goby, the Riverside fairy shrimp, the San Diego fairy shrimp, and the arroyo toad.
As a result of the exclusion process discussed above, the Fish and Wildlife Service was able to exclude most of Camp Pendleton from the designated critical habitat due to Marine Corps concerns about the effects the designations could have on military training critical to national security. The land area designated as critical habitat on Camp Pendleton encompasses a total of 6,322 acres, most of which is located on land leased by the State rather than the base proper.
Fort Hood, Texas
Under the section 7(a)(2) of the ESA, Federal agencies are required to consult with the Fish and Wildlife Service to ensure that actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of listed species or adversely modify designated critical habitats. A good example of this process occurred recently at Fort Hood. As one of the largest heavy artillery training sites in the country, it conducts live weapons fire and aviation training and houses more than 500 tanks. Much of the 220,000-acre base resembles barren, scorched battlefields with ruts as deep as trenches. However, it also contains essential nesting habitat for two endangered songbirds, the golden-cheeked warbler and black-capped vireo. Fort Hood is balancing its military mission with environmental stewardship.
As part of its responsibility under the ESA, the post manages 66,000 acres, more than 25 percent of the land on base, for the recovery of these two endangered species. The post also provides a haven to wintering bald eagles, occasional visiting whooping cranes, peregrine falcons, and other rare plant and animal species.
The Army entered into an interagency consultation with the Fish and Wildlife Service under section 7 of the ESA. In 1993, the Fish and Wildlife Service issued a "no jeopardy" Biological Opinion (BO). Following the issuance of the BO, Fort Hood contracted with the Nature Conservancy of Texas for further research and monitoring of the birds. In conjunction with Fish and Wildlife Service and Army biologists, Conservancy researchers are compiling the most comprehensive body of information on the birds to date. Fort Hood has followed the requirements of the 1993 BO (including a version amended in 2000) and has funded valuable research and management strategies that can be applied to warbler and vireo issues range-wide. The birds are benefitting from our partnership with the Garrison Commander and base natural resources staff.
Fort Bragg, North Carolina
For listed species, recovery is the ultimate goal. Section 7(a)(1) of the ESA directs Federal agencies to use their statutory authorities to fulfill this goal. The Sandhills region of North and South Carolina supports the largest population of red-cockaded woodpeckers (RCW) in the United States. Fort Bragg is the only Federal authority managing lands in that region for the recovery of RCW's. The area around Fort Bragg is being rapidly developed, and if critical tracts are not protected soon, they will be lost to the woodpecker. Loss of these lands due to development also would limit Fort Bragg's ability to sustain current and future military training. In response, the Army launched a Private Lands Initiative with The Nature Conservancy and other partners to purchase land or conservation easements from willing sellers. The lands will not only become available for red-cockaded woodpecker recovery, but also for compatible military training activities and recreation.
Fort McCoy, Wisconsin
Fort McCoy encompasses 59,750 acres and is home to a diversity of vegetation, including wild lupine, which is the only known food plant for larvae of the endangered Karner blue butterfly. Since 1990, when the installation discovered Karner blues on its land, military training and the butterflies have coexisted and thrived. Fort McCoy officials began coordinating with the Fish and Wildlife Service on the impact of both military and non-military activities affecting the Karner blue butterfly in 1992. In early 1994, the Fish and Wildlife Service issued Fort McCoy a no-jeopardy BO that included "reasonable and prudent measures" and "terms and conditions," both as provided under the ESA.
As part of an effort to fulfill those terms, Fort McCoy submitted a draft Karner Blue Butterfly Conservation Plan to the Fish and Wildlife Service in 1995. The plan outlined the direction Fort McCoy would take to manage its lands for the butterfly while allowing for the successful completion of the installation's military training mission. The final conservation plan was completed in 1997. Fort McCoy has been able to comply with the ESA while having only minimal impact on military training.
Pearl Harbor, Hawaii
A Navy team recently created some critical mudflat habitats for endangered waterbirds on the shores of Pearl Harbor. These mudflats are home to a number of Hawaiian waterbirds, including four endangered species and a variety of migratory birds. The site is a small pond within a unit of the Pearl Harbor National Wildlife Refuge. While the underlying land and water is owned by the Navy, the refuge is managed by the Fish and Wildlife Service. Over the years, the pond has provided decreasing value to waterbirds because of the increasing growth of invasive plants and weeds. Fish and Wildlife Service staff had attempted to create clear spaces by changing the water levels, but it wasn't enough to make the area suitable habitat for waterbirds. Additional work with heavy equipment was needed to create conditions favorable for wildlife.
In August 2000, a Navy Seabee unit answered the Refuge Manager's request for help and at the same time benefitted from some real-life training. Two Seabee heavy equipment operators maneuvered a bulldozer and grader to sculpt the bottom of the pond. Putting their Navy engineering skills to work in this training exercise, they reshaped mudflats for endangered Hawaiian stilts and constructed a drainage system according to a refuge restoration plan. This project was just one example of the Navy's strong partnership with the Fish and Wildlife Service's national wildlife refuge in Pearl Harbor. For years, sailors and their families also have volunteered numerous weekend hours creating new habitats and clearing away trash and excess vegetation at the refuge.
Air Force in Alaska and Peregrine Falcon Recovery
Since the early 1980s, the Air Force has worked with the Fish and Wildlife Service to minimize or eliminate impacts of Air Force activities on peregrine falcons in Alaska. Through the section 7 consultation process, the Air Force and the Fish and Wildlife Service identified major peregrine nesting areas in proposed Air Force training locations. Much of this training involves very low-level and high-speed flights, a combination with the potential to disturb many wildlife species, including nesting peregrine falcons. The Air Force agreed to a protective "no-fly" zone of 2 miles horizontal distance and 2,000 feet above the nest level in these dense nesting areas. Additionally, the Air Force is monitoring several nearby peregrine populations that fall outside the protected areas. This monitoring effort, which has continued since 1995, shows that the protective zones appear to provide adequate protection in the densest nesting areas and that the incidental loss of nestlings outside these zones is below the levels originally anticipated. Rather than making a minimal effort to comply with the ESA, the Air Force actively pursued programs to promote peregrine recovery, which helped make it possible to remove this magnificent bird from the threatened and endangered species list in 1999.
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. The term "species at risk" is defined as 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", but are not Federally listed. This project is intended to assist the military in focusing more effort towards conservation of species that may soon need listing if their populations continue to decline. The goal is to avoid listings and critical habitat designations that may further affect military operations. Some of these at-risk species may be endemic to military land holdings or dependent on military efforts to achieve recovery.
Once a species at risk is identified, the Fish and Wildlife Service works with the DOD activity to develop and implement conservation recommendations. Early conservation of candidate species, especially those conservation activities that occur before a species becomes a candidate, preserves management options for the military, minimizes the costs of recovery and could preclude the need for listing. This partnership project was developed by the military agencies, and demonstrates their interest in working with the Fish and Wildlife Service to benefit species.
Along with the 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 for issues whose solutions may be stymied at the local level to be elevated to the national level for guidance and resolution. The group also reviews the Sikes Act and Integrated Natural Resource Management Plan development and implementation as they pertain to endangered species management.
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, I have mentioned that 17 threatened or endangered species occur on Camp Pendleton. 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 the DOD can invoke in cases where National Security would be unacceptably compromised by conservation responsibilities. This exemption has never been invoked by the 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 having 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. I look forward to continuing to work with the DOD to clarify these issues and build upon the relationship we have established.
Sikes Act and Integrated Natural Resource Management Plans
As has been illustrated in this testimony, possibly the biggest land management challenge for DOD is the need to use its air, land, and water resources for military training and testing while conserving natural resources for future generations. The DOD has embraced its stewardship responsibilities for the lands it manages. The Fish and Wildlife Service has established effective partnerships with the military through the Sikes Act, resulting in proactive natural resource management on installations while enabling the military to successfully carry out its missions.
The Sikes Act, particularly as amended in 1997, broadened the scope of DOD natural resources programs, integrated natural resource programs with operations and training, embraced the tenets of conservation biology, invited public review, and strengthened funding for conservation activities on military lands. The Sikes Act Amendments require the development and implementation of Integrated Natural Resource Management Plans (INRMPs) for relevant installations and indicates that the plans are to be prepared in cooperation with the Fish and Wildlife Service and the State fish and wildlife agencies. The Sikes Act Amendments anticipated a truly collaborative process and full involvement of natural resource agencies. Additionally, INRMPs are to provide for public access to installations for enjoyment of natural resources, when practicable. However, INRMPs cannot compromise the capability of installation lands to support the military mission of the installation.
The Sikes Act Amendments state that INRMPs shall reflect mutual agreement of the installation commanders, the Fish and Wildlife Service, and the States. The goal is to reach agreement on the entire plan; however, it is a requirement that the INRMPs reflect agreement on elements of the plan within the scope of the Fish and Wildlife Service's and State's legal authorities. Several statutes provide the primary authorities for the Fish and Wildlife Service's involvement in environmental planning, including the Fish and Wildlife Coordination Act, the Endangered Species Act, the Migratory Bird Treaty Act, and the National Environmental Policy Act. The Sikes Act Amendments neither enlarges nor diminishes parties' legal authorities.
In fiscal year 2001, the Fish and Wildlife Service and State fish and wildlife agencies assisted in development, review, and/or implementation of INRMPs for over 300 military installations in the United States.
Migratory Bird Treaty Act
The implementation of the Migratory Bird Treaty Act of 1918 (MBTA) also affects the DOD. The MBTA prohibits the taking, including the pursuit, hunting, or killing of any migratory bird, unless permitted by suitable regulations adopted by the Secretary of the Interior. The law does not distinguish between intentional take and take that occurs incidental to other otherwise lawful activities. The prohibition on take extends to the activities of the Federal Government, including the branches of the DOD.
The Fish and Wildlife Service has worked to provide the necessary authorizations to enable readiness training and operational flexibility for the military. For example, we routinely issue permits authorizing military personnel to take birds that pose a risk to aircraft safety at airfields. These permits receive the highest priority. Also, the Fish and Wildlife Service uses enforcement discretion, rather than a permitting program, to allow activities such as live fire military training that take birds incidentally.
Implementing the MBTA in this fashion has enabled us to focus our limited resources on working cooperatively with various parties, including the military, to avoid or minimize the take of migratory birds, and target enforcement actions against those parties that choose not to cooperate with us to conserve migratory bird populations. We believe this approach has been consistent with the purposes of the treaties underlying the MBTA.
Implementation of the MBTA is not without its challenges. The Administrative Procedure Act (APA) allows third parties to file suit to prevent a Federal agency from taking final agency action that is Aarbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law (5 U.S.C. 706(2)(A)). In a case currently pending before the United States District Court for the District of Columbia, a third party has filed for declaratory and injunctive relief against the Secretaries of the Navy and Defense for training activities at Farallon de Medinilla Island in the Northern Mariana Islands, on the grounds that migratory birds will be taken incidental to otherwise lawful activities. Plaintiffs, therefore, claim that, lacking specific authorization from the Secretary of the Interior, the activities themselves are "not in accordance with law" (i.e., the MBTA).
This and other challenges under the MBTA are not limited to DOD. Memoranda of Understanding between the Fish and Wildlife Service and various Federal agencies, including the DOD, are being developed to address these issues. These MOUs will help clarify the roles of each agency and provide a foundation for broader authorizations to take migratory birds while assuring the continued health of bird populations.
Marine Mammal Protection Act
The Marine Mammal Protection Act of 1972 (MMPA) 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 otter, walrus, polar bear, dugong, and manatee, while Commerce is responsible for cetaceans and pinnipeds, other than walrus. 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.
Over the last several years, the Fish and Wildlife Service has worked diligently with the United States Navy, the National Marine Fisheries Service (NMFS), the Marine Mammal Commission (MMC), and Alaska Natives to develop proposals that enhance marine mammal conservation, and clarify areas of the existing law. During this process, revisions to the definition of harassment were considered to address concerns expressed by the Navy. This and other proposals related to the MMPA are currently under review by the Administration.
In closing, Mr. Chairman, I believe both the Interior Department and the DOD have acted cooperatively to implement the natural resource conservation laws passed by Congress. I am aware of the challenges that have arisen during this endeavor. The Interior 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.
Disclaimer: All statements are not the opinions or position of those testifying, rather they are the official positions taken by the Administration.