U.S. Senate Committee on Environment & Public Works
U.S. Senate Committee on Environment & Public Works
Hearing Statements
Date:   04/02/2003
 
Jamie Clark
Senior Vice President for Conservation Programs
National Wildlife Federation

Impact of military training on the environment

Good morning, Chairman Inhofe, Senator Jeffords and Members of the Committee. My name is Jamie Rappaport Clark, Senior Vice President for Conservation Programs at the National Wildlife Federation, the nation’s largest conservation education and advocacy organization. I am here to testify on behalf of National Wildlife Federation, as well as Defenders of Wildlife, the Endangered Species Coalition, Fund for Animals, Humane Society of the United States, Military Toxics Project, Public Employees for Environmental Responsibility, Public Interest Research Group, Natural Resources Defense Council, and World Wildlife Fund. I thank the Committee for this opportunity to testify on the Administration’s Readiness and Range Preservation Initiative.

Prior to arriving at the National Wildlife Federation in 2001, I served for 13 years at the U.S. Fish and Wildlife Service, with the last 4 years as the Director of the agency. Prior to that, I served as Fish and Wildlife Administrator for the Department of the Army, Natural and Cultural Resources Program Manager for the National Guard Bureau, and Research Biologist for U.S. Army Medical Research Institute. I am the daughter of a U.S. Army Colonel, and lived on or near military bases throughout my entire childhood.

Based on this experience, I am very familiar with the Defense Department’s long history of leadership in wildlife conservation. On many occasions during my tenures at FWS and the Defense Department, DOD rolled up its sleeves and worked with wildlife agency experts to find a way to comply with environmental laws and conserve imperiled wildlife while achieving military preparedness objectives.

The Administration now proposes in its Readiness and Range Preservation Initiative that Congress scale back DOD’s responsibilities to conserve wildlife and to protect people from the hazardous pollution that DOD generates. This proposal is both unjustified and dangerous. It is unjustified because DOD’s longstanding approach of working through compliance issues on an installation-by-installation basis works. As DOD itself has acknowledged, our armed forces are as prepared today as they ever have been in their history, and this has been achieved without broad exemptions from environmental laws.

The DOD proposal is dangerous because, if Congress were to broadly exempt DOD from its environmental protection responsibilities, both people and wildlife would be threatened with serious, irreversible and unnecessary harm. Moreover, other federal agencies and industry sectors with important missions, using the same logic as used here by DOD, would line up for their own exemptions from environmental laws.

My expertise is in the Endangered Species Act (ESA), so I would like to focus my testimony on why exempting the Defense Department from key provisions of the ESA would be a serious mistake. I will rely on my fellow witnesses to explain why the proposed exemptions from other environmental and public health and safety laws is similarly unwise.

Concerns with the ESA Exemption

The Defense Department’s proposed ESA exemption suffers from three basic flaws: it would severely weaken this nation’s efforts to conserve imperiled species and the ecosystems on which all of us depend; it is unnecessary for maintaining military readiness; and it ignores the Defense Department’s own record of success in balancing readiness and conservation objectives under existing law.

1. Section 2017 Removes a Key Species Conservation Tool

Section 2017 of the Administration’s Readiness and Range Preservation Initiative would preclude designations of critical habitat on any lands owned or controlled by DOD if DOD has prepared an Integrated Natural Resources Management Plan (INRMP) pursuant to the Sikes Act and has provided “special management consideration or protection” of listed species pursuant to Section 3(5)(A) of the ESA.

This proposal would effectively eliminate critical habitat designations on DOD lands, thereby removing an essential tool for protecting and recovering species listed under the ESA. Of the various ESA protections, the critical habitat provision is the only one that specifically calls for protection of habitat needed for recovery of listed species. It is a fundamental tenet of biology that habitat must be protected if we ever hope to achieve the recovery of imperiled fish, wildlife and plant species.

Section 2017 would replace this crucial habitat protection with management plans developed pursuant to the Sikes Act. The Sikes Act does not require the protection of listed species or their habitats; it simply directs DOD to prepare INRMPs that protect wildlife “to the extent appropriate.” Moreover, the Sikes Act provides no guaranteed funding for INRMPs and the annual appropriations process is highly uncertain. Even the best-laid management plans can go awry when the anticipated funding fails to come through. Yet, under Section 2017, even poorly designed INRMPs that allow destruction of essential habitat and put fish, wildlife or plant species at serious risk of extinction would be substituted for critical habitat protections.

Section 2017 contains one minor limitation on the substitution of INRMPs for critical habitat designations: such a substitution is allowed only where the INRMP provides “special management consideration or protection” within the meaning of Section 3(5)(A) of the ESA. Unfortunately, this limitation does nothing to ensure that INRMPs truly conserve listed species.

The term “special management consideration or protection” was never intended to provide a biological threshold that land managers must achieve in order to satisfy the ESA. The term is found in Section 3(5) of the ESA, which sets forth a two-part definition of critical habitat. Section 3(5)(A) states that critical habitat includes areas occupied by a listed species that are “essential for the conservation of the species” and “which may require special management consideration or protection.” Section 3(5)(B) states that critical habitat also includes areas not currently occupied by a listed species that are simply “essential for the conservation of the species.”

As this language makes clear, an ESA §3(5) finding by the U.S. Fish and Wildlife Service or National Marine Fisheries Service (Services) that a parcel of land “may require special management consideration or protection” is not the same as finding that it is already receiving adequate protection. Such a finding simply highlights the importance of a parcel of land to a species, and it should lead to designation of that land as critical habitat. See Center for Biological Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003) (rejecting, as contrary to plain meaning of ESA, defendant’s interpretation of “special management consideration or protection” as providing a basis for substituting a U.S. Forest Service management plan for critical habitat protection). By allowing DOD to substitute INRMPs for critical habitat designations whenever it unilaterally makes a finding of “special management consideration or protection,” Section 2017 significantly weakens the ESA.

Section 2017 is also problematic because it would eliminate many of the ESA Section 7 consultations that have stimulated DOD to “look before it leaps” into a potentially harmful training exercise. As a result of Section 7 consultations, DOD and the Services have routinely developed what is known as “work-arounds,” strategies for avoiding or minimizing harm to listed species and their habitats while still providing a rigorous training regimen.

Section 2017 purports to retain Section 7 consultations. However, the duty to consult only arises when a proposed federal action would potentially jeopardize a listed species or adversely modify or destroy its critical habitat. By removing critical habitat designations on lands owned or controlled by DOD, Section 2017 would eliminate one of the two possible justifications for initiating a consultation, reducing the likelihood that consultations will take place. This would mean that DOD and the Services would pay less attention to species concerns and would be less effective in conserving imperiled species and maintaining the sustainability of the land.

The reductions in species protection proposed by DOD would have major implications for our nation’s rich natural heritage. DOD manages approximately 25 million acres of land on more than 425 major military installations. These lands are home to at least 300 federally listed species. Without the refuge provided by these bases, many of these species would slide rapidly toward extinction. These installations have played a crucial role in species conservation and must continue to do so.

2. The ESA Exemption is Not Necessary to Maintain Military Readiness

The ESA already has the flexibility needed for the Defense Department to balance military readiness and species conservation objectives. Three key provisions provide this flexibility. First, under the consultation provision of Section 7(a)(2) of the Act, DOD is provided with the opportunity to develop solutions in tandem with the Services to avoid unnecessary harm to listed species from military activities. Typically, the Services conclude, after informal consultation, that the proposed action will not adversely affect a listed species or its designated critical habitat or, after formal consultation, that it will not likely jeopardize a listed species or destroy or adversely modify its critical habitat. See, e.g., U.S. Army Environmental Center, Installation Summaries from the FY 2001 Survey of Threatened and Endangered Species on Army Lands (August 2002) at 9 (noting successful conclusion of 282 informal consultations and 36 formal consultations, with no “jeopardy” biological opinions). In both informal and formal consultations, the Services either will recommend that the action go forward without changes, or it will work with DOD to design “work arounds” for avoiding and minimizing harm to the species and its habitat. In either case, DOD accomplishes its readiness objectives while achieving ESA compliance.

Second, under Section 4(b)(2) of the ESA, the Services are authorized to exclude any area from critical habitat designation if they determine that the benefits of exclusion outweigh the benefits of specifying the area. (An exception is made for when the Services find that failure to designate an area as critical habitat will result in the extinction of a species – a finding that the Services have never made.) In making this decision, the Services must consider “the economic impact, and any other relevant impact” of the critical habitat designation. DOD has recently availed itself of this provision to convince the U.S. Fish and Wildlife Service to exclude virtually all of the habitat at Camp Pendleton – habitat deemed critical to five listed species in proposed rulemakings -- from final critical habitat designations. Thus, for situations where the Section 7(a)(2) consultation procedures place undue burdens on readiness activities, DOD already has a tool for working with the Services on excluding land from critical habitat designation. Attached to my testimony is a factsheet that shows how the Services have worked cooperatively with DOD on these exclusions, and another factsheet showing the importance of maintaining the Services’ role in evaluating proposed exclusions.

Third, under Section 7(j) of the ESA an exemption “shall” be granted for an activity if the Secretary of Defense finds the exemption is necessary for reasons of national security. To this date, DOD has never sought an exemption under Section 7(j) -highlighting the fact that other provisions of the ESA have provided DOD with all the flexibility it needs to reconcile training needs with species conservation objectives.

Where there are site-specific conflicts between training needs and species conservation needs, the ESA provides these three mechanisms for resolving them in a manner that allows DOD to achieve its readiness objectives. Granting DOD a nationwide ESA exemption, which would apply in many places where no irreconcilable conflicts between training needs and conservation needs have arisen, would be harmful to imperiled species and totally unnecessary to achieve readiness objectives.

a. DOD Has Misstated the Law Regarding Its Ability to Continue with a Cooperative, Case-by-Case Approach to Critical Habitat Designations

DOD has stated that the ESA exemption is necessary because a recent court ruling in Arizona would prevent DOD from taking the cooperative, case-by-case approach to critical habitat designations that was developed when I served as Director of the Fish and Wildlife Service. This description of the court ruling is inaccurate – the ruling clearly allows DOD to continue the cooperative, case-by-case approach if it wishes.

The court ruling at issue is entitled Center for Biological Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003). In this case, FWS excluded San Carlos Apache tribal lands from a critical habitat designation pursuant to ESA §4(b)(2) because the tribal land management plan was adequate and the benefits of exclusion outweighed the benefits of inclusion. The federal district court upheld the exclusion as within FWS’s broad authority under ESA §4(b)(2). At the same time, the court held that lands could not legitimately be excluded from a critical habitat designation on the basis of the “special management” language in ESA §3(5).

Under the court’s reasoning, FWS continues to have the broad flexibility to exclude DOD lands from a critical habitat designation on the basis of a satisfactory INRMP and the benefits to military training that the exclusion would provide. The ruling simply clarifies that such exclusions must be carried out pursuant to ESA §4(b)(2) rather than ESA §3(5). Thus, DOD’s assertion that the Center for Biological Diversity ruling prevents it from working with FWS to secure exclusions of DOD lands from critical habitat designations is inaccurate.

b. DOD’s Anecdotes Do Not Demonstrate That the ESA Has Reduced Readiness

The DOD has offered a series of misleading anecdotes describing difficulties it has encountered in balancing military readiness and conservation objectives. Before Congress moves forward with any exemption legislation, the appropriate Congressional committees should get a more complete picture of what is really happening at DOD installations.

Some of DOD’s anecdotes are simply unpersuasive on their face, such as DOD’s repeated assertion that environmental laws have prevented the armed services from learning how to dig foxholes and that troops abroad have been put at greater risk as a result. There is simply no evidence that environmental laws have ever prevented foxhole digging. Moreover, given its vast and varied landholdings and the many management options available, the Defense Department certainly can find places on which troops can learn to dig foxholes without encountering endangered species or other environmental issues.

Other anecdotes have simply disregarded the truth. For example, DOD and its allies have repeatedly argued that more than 50 percent of Camp Pendleton may not be available for training due to critical habitat designations. In fact, only five species have been proposed for critical habitat designations at Camp Pendleton. In each of these five instances, DOD raised concerns about impacts to military readiness, and in each instance, FWS worked closely with DOD to craft a solution. FWS ultimately excluded virtually all of the habitats for the five listed species on Camp Pendleton from critical habitat designations – even though FWS had earlier found that these habitats were essential to the conservation of the species. As a result of FWS’s exclusion decisions, less than one percent of the training land at Camp Pendleton, and less than 4 percent of all of Camp Pendleton, is designated critical habitat. (Most of the critical habitat designated at Camp Pendleton is non-training land leased to San Onofre State Park, agricultural operations, and others. DOD’s repeated suggestion that more than 50 percent of Camp Pendleton is at risk of being rendered off-limits to training due to critical habitat is simply inaccurate.

DOD also has argued that training opportunities and expansion plans at Fort Irwin have been thwarted by the desert tortoise. Yet just two weeks ago this official line was contradicted by the reality on the ground. In an article dated March 21, 2003, Fort Irwin spokesman Army Maj. Michael Lawhorn told the Barstow Desert Dispatch that he is unaware of any environmental regulations that interfere with troops' ability to train there. He also said there isn't any environmental law that hinders the expansion.

Attached to my testimony is a factsheet outlining a series of additional misleading anecdotes used by DOD and the additional facts that must be considered before drawing any conclusions about the impact of the ESA on military readiness.

These examples of misleading anecdotes highlight the need for Congress to look behind the reasons that are being put forward by DOD as the basis for weakening environmental laws. DOD uses the anecdotes in an attempt to demonstrate that conflicts between military readiness and species conservation objectives are irreconcilable. However, solutions to these conflicts are within reach if DOD is willing to invest sufficient time and energy into finding them. DOD has vast acres of land on which to train and vast stores of creativity and expertise among its land managers. With careful inventorying and planning, DOD can find a proper balance.

Has DOD made the necessary effort to inventory and plan for its training needs? In June 2002, the General Accounting Office issued a report entitled “Military Training: DOD Lacks a Comprehensive Plan to Manage Encroachment on Training Ranges,” suggesting that the answer is no. The GAO found:

· DOD has not fully defined its training range requirements and lacks information on training resources available to the Services to meet those requirements, and that problems at individual installations may therefore be overstated.

· The Armed Services have never assessed the overall impacts of encroachment on training.

· DOD’s readiness reports show high levels of training readiness for most units. In those few instances of when units reported lower training readiness, DOD officials rarely cited lack of adequate training ranges, areas or airspace as the cause.

· DOD officials themselves admit that population growth around military installations is responsible for past and present encroachment problems.

· The Armed Services’ own readiness data do not show that environmental laws have significantly affected training readiness.

Ten months after the issuance of the GAO report, DOD still has not produced evidence that environmental laws are at fault for any of the minor gaps in readiness that may exist. EPA Administrator Whitman confirmed this much at a recent hearing. At a February 26, 2003, Senate Environment and Public Works Committee hearing on EPA’s budget, EPA Administrator Whitman stated that she was “not aware of any particular area where environmental protection regulations are preventing the desired training.”

To this date, DOD has not provided Congress with the most basic facts about the impacts of ESA critical habitat requirements on its readiness activities. Out of DOD’s 25 million acres of training land, how many acres are designated critical habitat? At which installations? Which species? In what ways have the critical habitat designations limited readiness activities? What efforts did DOD make to alert FWS to these problems and to negotiate resolutions? Without answers to these most basic questions, Congress cannot fairly conclude that the ESA is at fault for any readiness gaps or that a sweeping ESA exemption is warranted.

3. DOD has Worked Successfully with the Services to Balance Readiness and Species Conservation Objectives

The third reason why enacting DOD’s proposed ESA changes would be a mistake is because the current approach – developing solutions at the local level, rather than relying on broad, national exemptions - has worked. My experience at both FWS and DOD has shown me that solutions developed at the local level are sometimes difficult to arrive at, but they are almost always more intelligent and long-lasting than one-size-fits-all solutions developed at the national level.

Allow me to provide a few brief examples. At the Marine Corps Base at Camp Lejeune in North Carolina, every colony tree of the endangered red-cockaded woodpecker is marked on a map, and Marines are trained to operate their vehicles as if those mapped locations are land mines. Here is the lesson that Major General David M. Mize, the Commanding General at Camp Lejeune, has drawn from this experience:

“Returning to the old myth that military training and conservation are mutually exclusive; this notion has been repeatedly and demonstrably debunked. In the overwhelming majority of cases, with a good plan along with common sense and flexibility, military training and the conservation and recovery of endangered species can very successfully coexist.”

“Military installations in the southeast are contributing to red-cockaded woodpecker recovery while sustaining our primary mission of national military readiness.”

“I can say with confidence that the efforts of our natural resource managers and the training community have produced an environment in which endangered species management and military training are no longer considered mutually exclusive, but are compatible.”

These sentiments, which I share, were relayed by Major General Mize just eight weeks ago at a National Defense University symposium sponsored by the U.S. Army Forces Command (FORSCOM) and others. At that symposium, representatives of Camp Lejeune Marine Corps Base, Eglin Air Force Base, Fort Bragg Army Base, Fort Stewart Army Base, Camp Blanding Training Center in Florida, the U.S. Army Environmental Center, and other Defense facilities - some of the most heavily utilized training bases in the country - heralded the success that Defense Department installations have had in furthering endangered species conservation while maintaining military readiness.

On the Mokapu Peninsula of Marine Corps Base Hawaii, the growth of non-native plants, which can decrease the reproductive success of endangered waterbirds, is controlled through annual “mud-ops” maneuvers by Marine Corps Assault Vehicles. Just before the onset of nesting season, these 26 ton vehicles are deployed in plow-like maneuvers that break the thick mats of invasive plants, improving nesting and feeding opportunities while also giving drivers valuable practice in unusual terrain.

Attached to my testimony is a factsheet with additional examples of successful efforts by DOD installations across the country to balance military readiness and species conservation.

These success stories highlight a major trend that I believe has been missed by those promoting the DOD exemptions. In recent years, DOD has increasingly recognized the importance of sustainability because it meets several importance objectives at once. Sustainable use of the land helps DOD achieve not only compliance with environmental laws, but also long-term military readiness and cost-effectiveness goals. For example, by operating tanks so that they avoid the threatened desert tortoise, DOD prevents erosion, a problem that is extremely difficult and costly to remedy. If DOD abandons its commitment to environmental compliance, it will incur greater long-term costs for environmental remediation and will sacrifice land health and military readiness.

A November 2002 policy guidance issued by the then-Secretary of the Navy to the Chief of Naval Operations and the Commandant of the Marine Corps suggests that certain members of DOD’s leadership are indeed willing to abandon the sustainability goal. The policy guidance on its face seems fairly innocuous – it purports to centralize at the Pentagon all decisionmaking on proposed critical habitat designations and other ESA actions. However, the Navy Secretary’s cover memo makes clear that its purpose is also to discourage any negotiation of solutions to species conservation challenges by Marines or Navy personnel in the field, lest these locally-developed “win-win” solutions undercut DOD’s arguments on Capitol Hill that the ESA is broken. According to paragraph 2 of the cover memo, "concessions ... could run counter to the legislative relief that we are continuing to pursue with Congress."

Similar sentiments were voiced by Deputy Defense Secretary Paul Wolfowitz in his March 7, 2003, memo to the chiefs of the Army, Navy and Air Force. Deputy Secretary Wolfowitz argued that "it is time for us to give greater consideration to requesting exemptions" from environmental laws and pleaded for specific examples of instances in which environmental regulations hamper training. The implicit message is that efforts at the installation level to resolve conflicts between conservation and training objectives should be suspended, and that such conflicts instead should be reported to the Pentagon, where environmental protections will simply be overridden.

These messages to military personnel in the field mark a very unfortunate abdication of DOD’s leadership in wildlife conservation. To maintain its leadership role as steward of this nation’s endangered wildlife, DOD must encourage its personnel to continue developing innovative solutions and not thwart those efforts.

Conclusion

With the Iraq war ongoing and terrorism threats always present, no one can dismiss the importance of military readiness. However, there is no justification for the Defense Department to retreat from its environmental stewardship commitments at home. As base commanders have been telling us, protecting endangered species and other important natural resources is compatible with maintaining military readiness.

Surveys show that the American people today want environmental protection from the federal government, including the Defense Department, as much as ever. According to an April 2002 Zogby Poll, 85% of registered voters believe that the Defense Department should be required to follow America's environmental and public health laws and not be exempt. Americans believe that no one, including the Defense Department, should be above the law.

Congress should reject the proposed environmental exemptions in the Administration’s defense authorization package. This proposal, along with the parallel proposal in the Administration’s FY04 budget request that Congress cut spending on DOD’s environmental programs by $400 million, are a step in the wrong direction.

DOD has a long and impressive record of balancing readiness activities with wildlife conservation. The high quality of wildlife habitats at many DOD installations provides tangible evidence of DOD’s positive contribution to the nation’s conservation goals. At a time when environmental challenges are growing, DOD should be challenged to move forward with this successful model and not to sacrifice any of the progress that has been made.

DOD HAS A LONG HISTORY OF WORKING SUCCESSFULLY WITH THE ESA

The Department of Defense (DOD) is again pursuing exemptions from key environmental laws. A legislative package with these exemptions has been sent to Congress, which will soon be casting crucial votes. If this legislation is approved it will greatly reduce DOD’s obligations under the Endangered Species Act (ESA), Marine Mammal Protection Act, Clean Air Act, Superfund, and Resource Conservation and Recovery Act.

Last year, the Administration requested exemptions from six environmental statutes, and Congress settled on an exemption from the Migratory Bird Treaty Act.

DOD and ESA Success Stories

DOD has argued, and intends to do so again, that the ESA is too inflexible and that a sweeping new exemption is needed. However, this argument is not based on having encountered insurmountable hurdles complying with the ESA. In fact, the General Accounting Office has concluded, based on a review of DOD’s own readiness reports, that the military is at a high state of readiness and that DOD has never demonstrated that the ESA has significantly impeded training.

Nonetheless, without any public debate, DOD sought to bypass the ESA’s careful balancing between military training needs and conservation of imperiled wildlife. The facts show that this would be an unfortunate and unnecessary departure from DOD’s long history of working successfully with the ESA.

Marine Corps Air Station Miramar, California

In an effort to protect the station’s ten endangered species, the U.S. Fish and Wildlife Service (FWS) initially proposed to designate 65 percent of Miramar’s land area as critical habitat. FWS later exercised its discretion under existing law and withdrew this proposed designation after the Marine Corps established a framework to protect and preserve the station’s endangered species, guaranteed the plan would be implemented, and defined measures to judge the plan’s effectiveness. According to DOD, in so doing, “the plan made military readiness activities and endangered species protection mutually compatible.”

Mokapu Peninsula of Marine Corps Base Hawaii

Among the 50 species of birds that call this island home are all four of Hawaii’s endangered waterbirds: the Hawaiian stilt, Hawaiian coot, Hawaiian gallinule, and the Hawaiian duck. Management activities at the base have more than doubled the number of stilts on the base over the past 20 years. The growth of non-native plants, which can decrease the waterbirds’ reproductive success, is controlled through annual “mud-ops” maneuvers by Marine Corps Assault Vehicles (AAVs). Just before the onset of nesting season, these 26 ton vehicles are deliberately deployed in supervised plow-like maneuvers that break the thick mats of invasive plants, improving nesting and feeding opportunities while also giving drivers valuable practice in unusual terrain.

Air Force in Alaska

In 1995 FWS found that the Air Force’s low-level, high speed training flights in Alaska had the potential to disturb the three North American subspecies of endangered peregrine falcons. After the Air Force consulted with FWS under the ESA, the Air Force agreed to protective “no-fly” zones around dense peregrine nesting locations. The peregrine falcon has since recovered to the point that it has been removed from the ESA’s list of threatened and endangered species, and FWS has declared that “the knowledge gained by Air Force research projects was important in the recovery process.”

Marine Corps Base Camp Lejeune, North Carolina

Initially 10 percent of this base was restricted in order to protect the red-cockaded woodpecker, but now only 1 percent of the base is restricted for that purpose, as the number of breeding pairs of the bird have doubled in the past ten years. The Marines attribute the success of its conservation efforts to its partnership with FWS, the State of North Carolina, academic experts, and environmental advocacy groups.

Fort Bragg, North Carolina

Fort Bragg contains important habitat for the red-cockaded woodpecker, enabling the base to proudly claim that “this single species has survived because of the havens provided by our installations’ training land and ranges.” Working with the Nature Conservancy and others, DOD has created buffers around its installations and training areas, lessening restrictions on training while enabling the endangered red-cockaded woodpecker to move closer to recovery.

DOD has successfully worked with the ESA to achieve its military readiness objectives while conserving imperiled species. Please ask your lawmakers to oppose any proposals that exempt DOD from the ESA and other environmental laws!

For more information, contact Corry Westbrook, Legislative Representative, National Wildlife Federation, at 202-797-6840, westbrook@nwf.org.

FWS Has Repeatedly Granted DOD's Requests That Its Lands Be Excluded From ESA Critical Habitat Designations

In pushing for exemptions from Endangered Species Act (ESA) critical habitat protections, the Department of Defense (DOD) has argued that the ESA lacks sufficient flexibility to exclude DOD lands from critical habitat designations where appropriate. However, as shown below, where the U.S. Fish and Wildlife Service (FWS) has found that DOD's lands are needed for training and listed species are being adequately conserved, it has repeatedly acceded to DOD's requests that those be excluded from critical habitat designations. See also NWF Factsheet: FWS's Case-by-Case Review of INRMPs is Essential for Conserving Imperiled Wildlife. DOD's effort to replace this flexible, case-by-case review with a sweeping ESA exemption is completely unwarranted.

The following FWS statements from the Federal Register show that, time and again, FWS has used the flexibility of the existing ESA to exclude large swaths of valuable habitat on DOD lands from critical habitat designations:

Lompoc yerba santa and Gaviota tarplant (plants) at Vandenberg Air Force Base, 67 FR 67968-01 (November 7, 2002):

“Although measures to provide for the conservation of Eriodictyon apitatum or Deinandra increscens ssp. villosa are not currently included in the draft INRMP, the Air,> Force has committed to incorporate into their INRMP, and implement, specific measures that will address the conservation of these species and their habitat where they occur on Vandenberg. Based on this commitment, we have, therefore, determined that lands on Vandenberg Air Force Base should be excluded under subsection 4(b)(2) of the Act because the benefits of exclusion outweigh the benefits inclusion and will not cause the extinction of the species. For this reason, we are excluding from the designated critical habitat those proposed units and portions of proposed units that were located on Vandenberg.”

2. l Chlorogalum purpureum (a plant) at Camp Roberts and Ft. Hunter Liggett, 67 FR 65414-01 (October 24, 2002):

“We have revised the proposal to eliminate lands at Camp Roberts under section 3(5)(A), and lands at Ft. Hunter Liggett under section 4(b)(2). It is our policy that if any areas containing the primary constituent elements are currently being managed to address the conservation needs of Chlorogalum purpureum management or protection, these areas would not meet the definition of critical habitat in section 3(5)(A)(i) of the Act and would not be included in this final rule. We have determined that this is the case at CampRoberts due to their having an approved Integrated Natural Resources Management Plan which addresses the conservation needs of Chlorogalum purpureum.

We have also determined that the direct and indirect costs to the Army, including reduction in military readiness, from designation of critical habitat at Ft. Hunter Liggett are such that the benefits of excluding those lands exceed the benefits of their inclusion.

3. Monterey Spineflower at Naval Postgraduate School, 67 FR 37498-01 (May 29, 2002)

“In their comments on the proposed rule, the DON requested that the lands of the School be excluded from the Marina unit of critical habitat because of the protections and management actions provided for Chorizanthe pungens var. pungens as part of the INRMP. We evaluated the INRMP and found that it meets the three criteria described above. We excluded these lands from critical habitat under the section 3(5)(A) definition.”

4. Riverside Fairy Shrimp at Miromar AFB and Camp Pendleton 67 FR 59884-01 (September 24, 2002)

[NOTE: This designation was vacated by a federal court on October 30, 2002, after an industry group claimed that FWS's economic impact analysis was not sufficently broad. See Building Ind. Legal Defense Found. V. Norton,, 231 F. Supp. 100 (D.D.C. 2002). The court required FWS to complete a new designation by July 2004.]

“To date, Miramar is the only DOD installation that has completed a final INRMP that provides, for sufficient conservation management, and protection for vernal pools and the., Riverside fairy shrimp. We reviewed this plan and determined that it addresses and meets the three criteria. Therefore, lands on Miramar (proposed Critical Habitat Unit 5) do not meet the definition of critical habitat, and they have not been included in this final designation of critical habitat for the Riverside fairy shrimp.”

“To date, as the INRMP for Camp Pendleton has not yet been completed and approved, these lands meet the definition of critical habitat. Nevertheless, we have determined that it is appropriate to exclude training areas on Camp Pendleton from this critical habitat designation under section 4(b)(2). The main benefit of this exclusion is ensuring that the mission-critical military training activities can continue without interruption at Camp Pendleton while the INRMP is being completed.”

“The proposed critical habitat designation included about 2,295 ha (5,670 ac), or about 10 percent of the base. This exclusion does not apply to the vernal pool complexes in the Wire Mountain Housing Area, within the Cockleburr Sensitive Area, and lands leased to the State of California and included within San Onofre State Park. Because these lands are used minimally, if at all, by the Marines for training, the 312 ha (770 ac) of lands proposed on Camp Pendleton and within the San Onofre State Park are retained in the final designation.”

California Red-legged Frog 66 FR 14626-01 (March 13, 2001)

“During the comment period for the proposed determination of critical habitat for the California red-legged frog, we received and subsequently evaluated a final INRMP for Vandenberg Air Force Base found in Units 23, 24, and 26. This plan addresses the California red-legged frog as a covered species and provides conservation measures for the species. Based on this plan and Vandenberg's section 7 consultation history, we have determined that the conservation measures afforded the subspecies are sufficient to assure its conservation on the base. Therefore, we have excluded Vandenberg Air Force Base from the final determination of critical habitat for the red-legged frog resulting in a reduction of approximately 38,445 ha (95,000 ac) from these units.”

“We also received and evaluated a request from Camp Parks Reserve Forces Training Area found in Unit 15 and Camp San Luis Obispo found in Unit 21, for exclusion from final designation because of the impact a final designation would have on their training­critical mission. The proposed designation included about 90 percent of both installations. After evaluation of the benefits of inclusion and the benefits of exclusion, we have excluded Camp Parks resulting in a reduction of approximately 857 ha (2,118 ac) in Unit 15 and CSLO resulting in a reduction of approximately 2,272 ha (5,613 ac) in Unit 21 from this final designation.”

Arroyo Toad 66 FR 9414-01 (February 7, 2001)

[NOTE: This designation was vacated by a federal court on October 30, 2002, after an industry group claimed that the economic impact analysis was not sufficiently broad. See Building Ind. Legal Defense Found. V. Norton, 231 F. Supp. 100 (D.D.C. 2002). The court required FWS to complete a new designation by July 2004.]

“Arroyo toad numbers on Camp Pendleton are significant and are inclusive of the few remaining populations along the coastal plain.”

“[W]e have determined that it is appropriate to exclude Camp Pendleton from this critical habitat designation under section 4(b)(2). The main benefit of this exclusion is ensuring that the mission-critical military training activities can continue without interruption at ,Camp Pendleton while the INRMP and programmatic uplands consultation are being completed. This exclusion does not include that part of Camp Pendleton leased to the State of California and included within San Onofre State Park (including San Mateo Park) and those agricultural leased lands adjacent to San Mateo Creek. Because these lands are used minimally, if at all, by the Marines for training, the lands proposed within the state park and agricultural leases are retained in the final designation.”

“Fort Hunter Liggett seemed most concerned in their comments about the inclusion of what they termed “marginal and unsuitable” habitat and the resulting consultation requirements, and the perceived need to reinitiate consultation on certain actions. We believe we have adequately addressed much of their concern by eliminating the northernmost reach of the river that was proposed, and by the reduction in grid cell size to eliminate such marginal habitat (see Changes from the Proposal section).”

“A primary concern expressed by Fallbrook Naval Weapons Station is that the designation of critical habitat within certain developed areas will impose additional restrictions on their operations. However, existing structures, ordnance storage magazines and bunkers, and other developed areas do not provide the primary constituent elements necessary for the arroyo toad and thus by definition are not critical habitat.”

Mexican Spotted Owl 66 FR 8530-01 (February 1, 2001)

[NOTE: In Center for Biological Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003), the court overturned the critical habitat designation for the Mexican spotted owl on the ground that that U.S. Forest Service lands could not legitimately be excluded from a critical habitat designation on the basis of the “special management” language in ESA §3(5). However, the court upheld FWS's exclusion of tribal lands as within FWS's broad authority under ESA §4(b)(2). Thus, the ruling does not remove FWS's flexibility to exclude DOD lands from a critical habitat designation on the basis of a satisfactory INRMP and the benefits to military training that the exclusion would provide. See NWF Factsheet: DOD's Argument for an ESA Exemption is Based Upon a Misstatement of the Law.]

“Fort Carson, Colorado, provided information during the comment period that indicated the Mexican spotted owl is not known to nest on the military installation and the species is a rare winter visitor. Protected and restricted habitat is also not known to exist on Fort Carson. Further, Fort Carson is updating the Integrated Natural Resources Management Plan (INRMP) to include specific guidelines and protection measures that have been recently identified through informal consultation with us. The INRMP will include measures to provide year-round containment and suppression of wildland fire and the establishment of a protective buffer zone around each roost tree. The target date of completion for this revision is early 2001. Fort Carson, through consultation with us, indicated they will ensure that the INRMP will meet the criteria for exclusion. They also provided additional information and support to indicate that no protected or restricted habitat exists on the base, and asked to be excluded from the final designation. We agree that Fort Carson should be excluded from the final designation.”

Coastal California Gnatcatcher 65 FR 63680-01 (October 24, 2000)

“To date, Marine Corps Air Base Miramar is the only DOD installation that has completed a final INRMP that provides for sufficient conservation management and protection for the gnatcatcher. We have reviewed this plan and have determined that it addresses and meets the three criteria. Therefore, lands on Marine Corps Air Base Miramar do not meet the definition of critical habitat and have been excluded from the final designation of critical habitat for the gnatcatcher.”

California Red-legged Frog 66 FR 14626-01 (March 13, 2001)

“During the comment period for the proposed determination of critical habitat for the California red-legged frog, we received and subsequently evaluated a final INRMP for Vandenberg Air Force Base found in Units 23, 24, and 26. This plan addresses the California red-legged frog as a covered species and provides conservation measures for the species. Based on this plan and Vandenberg's section 7 consultation history, we have determined that the conservation measures afforded the subspecies are sufficient to assure its conservation on the base. Therefore, we have excluded Vandenberg Air Force Base from the final determination of critical habitat for the red-legged frog resulting in a reduction of approximately 38,445 ha (95,000 ac) from these units.”

“We also received and evaluated a request from Camp Parks Reserve Forces Training Area found in Unit 15 and Camp San Luis Obispo found in Unit 21, for exclusion from final designation because of the impact a final designation would have on their training­critical mission. The proposed designation included about 90 percent of both installations. After evaluation of the benefits of inclusion and the benefits of exclusion, we have excluded Camp Parks resulting in a reduction of approximately 857 ha (2,118 ac) in Unit 15 and CSLO resulting in a reduction of approximately 2,272 ha (5,613 ac) in Unit 21 from this final designation.”

Arroyo Toad 66 FR 9414-01 (February 7, 2001)

[NOTE: This designation was vacated by a federal court on October 30, 2002, after an industry group claimed that the economic impact analysis was not sufficiently broad. See Building Ind. Legal Defense Found. V. Norton, 231 F. Supp. 100 (D.D.C. 2002). The court required FWS to complete a new designation by July 2004.)

“Arroyo toad numbers on Camp Pendleton are significant and are inclusive of the few remaining populations along the coastal plain.”

“[W]e have determined that it is appropriate to exclude Camp Pendleton from this critical habitat designation under section 4(b)(2). The main benefit of this exclusion is ensuring that the mission-critical military training activities can continue without interruption at Camp Pendleton while the INRMP and programmatic uplands consultation are being completed. This exclusion does not include that part of Camp Pendleton leased to the State of California and included within San Onofre State Park (including San Mateo Park) and those agricultural leased lands adjacent to San Mateo Creek. Because these lands are used minimally, if at all, by the Marines for training, the lands proposed within the state park and agricultural leases are retained in the final designation.”

“Fort Hunter Liggett seemed most concerned in their comments about the inclusion of what they termed “marginal and unsuitable” habitat and the resulting consultation requirements, and the perceived need to reinitiate consultation on certain actions. We

In contrast to Marine Corps Air Base Miramar, other military installations within the area proposed as critical habitat for the gnatcatcher have not yet completed their INRMPs. Most notably, Marine Corps Base Camp Pendleton (Camp Pendleton) represents one of the largest contiguous blocks of coastal sage scrub in southern California. The base provides habitat for numerous core populations of gnatcatchers and essential habitat linkages between core populations in northern San Diego County to those in southern Orange and southwestern Riverside Counties. In light of these factors, we proposed 20,613 ha (50,935 ac) of the approximately 50,000 ha (125,000 acre) base as critical habitat for the gnatcatcher.”

“During both public comment periods for the proposal, the Marines concluded that the designation, if it-were to become final, would cripple their ability to conduct their critical training activities. They asserted that “this overwhelming proposal [if made final] will have a long term, cumulative and detrimental impact on [their] mission.” The proposed critical habitat encompassed more than 40 percent of the Base. Out of the 46 training or joint use areas on Camp Pendleton, the proposal included all of 22 and portions of 9 such areas, which were concentrated on the coastal portion of the Base. In addition, the proposal included three of four principal landing beaches and the key inland training areas adjacent to these beaches where Marines train in amphibious warfare, large and small tactics, and warfighting skills. Camp Pendleton is the Marine Corps' only amphibious training base on the Pacific coast.”

“Today, as the INRMP has not yet been completed and approved, these lands on the base meet the definition of critical habitat. Nevertheless, we have determined that it is appropriate to exclude Camp Pendleton from this critical habitat designation under section 4(b)(2). The main benefit of this exclusion is ensuring that the mission-critical military training activities can continue without interruption at Camp Pendleton while the INRMP is being completed.”

“In particular, the Marines implement a set of “programmatic instructions” that create 500-foot buffers around each 1998 gnatcatcher observation. These avoided areas, after eliminating overlapping buffers and off-Base areas, total about 3,343 ha (8,260 ac), or a little less than 7 percent of the entire area of Camp Pendleton. Although avoiding these areas constrains Marine training activities to some degree, the effectiveness of their overall mission is not compromised. The proposed critical habitat designation, however, included about 20,613 ha (50,935 ac), or, to reiterate, about 40 percent of the Base. If this area is included in the final designation of critical habitat for the gnatcatcher, the Marines would be compelled by their interpretation of the Endangered Species Act to significantly curtail necessary training within the area designated as critical habitat, to the detriment of mission-critical training capability, until the consultation is concluded, up to a year from now. As a result, this increase in the extent of avoided areas would greatly restrict use of the Base, severely limiting the Base's utility as a Marine training site.”

“This exclusion does not include that part of Camp Pendleton leased to the State of California and included within San Onofre State Park (including San Mateo Park).

Because these lands are used minimally, if at all, by the Marines for training, the 1,195 ha (2,960 ac) of lands proposed within the state park are retained in the final designation. These lands do not include lands leased for agricultural purposes.”

San Diego Fairy Shrimp 65 FR 63438-01 (October 23, 2000)

“We evaluated Department of Defense (DOD) Integrated Natural Resource Management Plans (INRMPs) for DOD land that was within the proposed critical habitat to determine whether any INRMPs met the special management criteria. To date, Marine Corps Air Base, Miramar is the only DOD installation that has completed a final INRMP that provides for sufficient conservation management and protection for the San Diego fairy shrimp. We reviewed this plan and determined that it addresses and meets the three criteria. Therefore, lands on Marine Corps Air Base, Miramar no longer meet the definition of critical habitat, and they have been excluded from the final designation of critical habitat for the San Diego fairy shrimp.”

“In contrast to Marine Corps Air Base Miramar, Marine Corps Base Camp Pendleton (Camp Pendleton) has not yet completed their INRMP. Camp Pendleton has several substantial vernal pool complexes that support the San Diego fairy shrimp. In light of these factors, we proposed 4,902 ha (12,114 ac) of the approximately 50,000 ha (125,000 acre), base as critical habitat for the San Diego fairy shrimp. Out of the 46 training or joint use areas on Camp Pendleton, the proposal included all of five such areas, which were concentrated on the coastal portion of the Base. In addition, the proposal included habitat found elsewhere on the base.”

“Today, as the INRMP has not yet been completed and approved, these lands on the base meet the definition of critical habitat. Nevertheless, we have determined that it is appropriate to exclude Camp Pendleton from this critical habitat designation under section 4(b)(2). The main benefit of this exclusion is ensuring that the mission-critical military training activities can continue without interruption at Camp Pendleton while the INRMP is being completed.”

For more information, contact Corry Westbrook, NWF Legislative Representative, at 202-797-6840, westbrook@,nwf.org, or John Kostyack NWF Senior Counsel, at 202­797-6879, kostyack@nwf.org .

FWS's Case-by-Case Review of INRMPs Is Essential

For Conserving Imperiled Wildlife

Reject Defense Department's Proposed Exemption

From This Accountability

The Defense Department has requested an exemption from the Endangered Species Act (ESA) on the ground that the Integrated Natural Resources Management Plans (INRMPs) it prepares under the Sikes Act are an adequate substitute for ESA critical habitat protection.

However, the U.S Fish and Wildlife Service (FWS) has reviewed a number of INRMPs in the past few years for the very purpose of determining their adequacy as substitutes for critical habitat protection. As shown in the table below, on repeated occasions, FWS has determined that INRMPs were inadequate to conserve listed species.

U.S. Fish and Wildlife Service's Findings Regarding Inadequacy of INRMPs

DOD Installation

Endangered and Threatened

FWS Findings

Species Habitat at Installation

Pacific Missile Range, Navy's Barking Sands Facility, Kauai

Plants: Panicum niihauense no common name)

“Management at the PRMF Barking Sands Facility lands currently consists of restricting human access and off-road vehicles from the dune ecosystems and mowing landscaped areas. These actions alone are not sufficient to address the factors inhibiting the long-term conservation of Panicum niihauense. Therefore, we cannot at this time find that management, on these lands under Federal jurisdiction as sufficient to find that they no longer meet the definition of critical habitat.” 68 FR 9116 (February 27, 2003).

Santa Cruz Armory, California

Plants: Santa Cruz tarplant Holocarpha macradenia)

“We conclude that [the California Army National Guard] does not yet have an INRMP for the Santa Cruz Armory that sufficiently addresses the criteria above. These lands do not warrant exclusion from critical habitat designation because the proposed management plan has not been approved and does not contain assurances that the management actions it describes will be implemented or effective.” 67 FR 63968 (October 16, 2002).

Navy's Barking Sands and Makaha Ridge Facility, Kaua' i

Plants: Panicum niihauense (no common name) Sesbania tomentosa ('ohai) Wilkesia hobdyi (iliau)

“Management at the Barking Sands and Makaha Ridge Facility lands currently consists of restricting human access and mowing landscaped areas. These actions alone are not sufficient to address the factors inhibiting the long-term conservation of [plants] Panicum niihauense and Wilkesia hobdyi. Therefore, we can not at this time find that management on these lands under Federal jurisdiction is adequate to preclude a proposed designation of critical habitat.” 67 Fed. Reg. 3940, 3998 (Jan. 8, 2002).

Army's Dillingham Military Reservation, Oahu

Plants:

Cyperus trachysanthos (pu'uka'a)

Hibiscus brackenridgei ssp. mokuleianus (ma'o hau hele)

Nototrichium humile (kulu'i) Schiedea kealiae (no common name)

“We believe this land is needed for the recovery of one or more of these four [plant] species. Currently, the Army is not implementing any management actions for these listed species at the Dillingham Military Reservation (HINHP Database 2001; Army 2001b). In addition, proposed management actions identified for [the plant] Schiedea kealiae in the 2001 INRMP are `subject to available funding'. We do not believe that appropriate conservation management strategies have been adequately funded or effectively implemented. Therefore, we cannot at this time find that management of this land under Federal jurisdiction is adequate to preclude a proposed designation of critical habitat.” 67 Fed. Reg. 37108, 37161 (May 28, 2002).

Army's Kahuku Training Area, Oahu

Plants:

Adenophorus periens (no common name) Chamaesyce rockii (' akoko)

Cyanea grimesiana ssp. grimesianna (haha) Cyanea koolauensis (haha) Cyanea longiflora (haha) Eugenia koolauensis (nioi) Gardenia mannii (nanu)

Hesperomannia arborescens (no common name) Phyllostegia hirsuta (no common name) Tetraplasandra gymnocarpa (' ohe' ohe) “Proposed management actions identified for listed plant species in the 2001 INRMP are `subject to available funding'. We do not believe that there are sufficient assurances that appropriate conservation management strategies will be adequately funded or effectively implemented. Therefore, we cannot at this time find that management of this land under Federal jurisdiction is adequate to preclude a proposed designation of critical habitat.” 67 Fed. Reg. 37108, 37161-37162 (May 28, 2002).

Army's Kawadoa Training Area, Oahu

Plants:

Adenophorus periens (no common name) Chamaesyce rockii ('akoko) Cyanea acuminata (haha) Cyanea crispy (haha) . Cyanea grimesiana ssp. grimesiana (haha) Cyanea humboldtiana (haha) Cyanea koolauensis (haha) Cyanea long jora (haha) Cyanea st. johnii (haha) Cytrandra dentata (ha iwale) Cyrtandra virid flora (ha' iwale) Delissea subcordata (no common name) Eugenia koolauensis.(nioi) Gardenia mannii (nanu). Hesperomannia arborescens (no common name) Labordia cyrtandrae (kamakahala) Lobelia oahuensis (no common name) Melicope lydgatei (alani) , Myrsine juddii.(kolea) Phlegmariurus nutans (wawae' iole) Phyllostegia hirsuta (no common name) Phyllostegia parv fora (no common name) Plantago princeps (ale) Platanthera holochila (no common name) Pteris,lidgatei (no common, name) Sanicula purpurea (no common name) Tetraplasandra gymnocarpa ('ohe'ohe) Viola oahuensis (no common name)

“Proposed management actions identified for listed plant species in the 2001 INRMP are `subject to available funding'. We do not believe that the current management measures are sufficient to address the primary threats to these species, nor do we believe that there are appropriate assurances that appropriate conservation management strategies will be adequately funded or effectively implemented. Therefore, we cannot at this time find that management of this land under Federal jurisdiction is adequate to preclude a proposed designation of critical habitat.” 67 Fed. Reg. 37108, 37192 (May 28, 2002).

Plants:

Alectryon macrococcus (mahoe) Alsinidendron obovatum (no common name) Bonamia menziesii (no common name) Cenchrus agrimonioides (kamanomano) Chamaesyce celastroides var. keanana ('akoko) Ctenitis squamigera (pauoa) Cyanea superba (haha) Cyrtandra dentata (ha' iwale) Delissea subcordata (no common. name) Diellia falcata (no common name) Dubautia herbstobatae (na'ena'e) Euphorbia haeleeleana ('akoko) Flueggea neowawraea (mehamehame) Hedyotis degeneri (no common name) Hedyotis parvula (no common name) Hibiscus brackenridgei (ma'o hau hele) Lepidium arbuscula ('anaunau) Lipochaeta tenuifolia (nehe) Lobelia niihauensis (no common name) Lobelia oahuensis (no common name) Neraudia angulata (no common name) Nototrichium humile (kulu'i) Plantago princeps (ale) Sanicula mariversa (no common name) Schiedea hookeri (no common name) Schiedea nuttallii (no common name) Silene lanceolata (no common name) Spermolepis hawaiiensis (no common name) Tetramolopium filiforme (no common name) Tetramolopium lepidotum ssp. lepidotum (no common name) Viola chamissoniana ssp. chamissoniana ('olopu; amakani)

“While we believe that some of these [plant] species specific actions may control threats in the short term, we do not believe that these measures are sufficient to address the primary threats to all of the species reported from Makua Military Reservation at this time... However, we cannot at this time find that management of this land under Federal jurisdiction is adequate to preclude a proposed designation of critical habitat.” 67 Fed. Reg. 37108, 37162­37163 (May 28, 2002).

Army's Makua Military Reservation, Oahu (continued)

Bird: Chasiempis sandwichensis ibidis (O'ahu 'elepaio)

“To date, no military installation on O'ahu has completed a final INRMP that provides sufficient management and protection for the elepaio.” 66 Fed. Reg. 63752, 63762 (Dec. 10, 2001).

“We have determined that current management [at Makua Military Reservation] does not adequately address the conservation needs of the Oahu elepaio....” 66 Fed. Reg, at 63768.

Army's Schofield Barracks East Range, O' ahu

Plants:

Chamaesyce rockii ('akoko) Cyanea acuminata (haha) Cyanea koolauensis (haha) Cyanea long f ora (haha) Cyanea st johnii (haha) Cyrtandra subumbellata (ha' iwale) Gardenia mannii (nanu) Hesperomannia arborescens (no common name) Isodendrion laurifolium (aupaka) Lobelia gaudichaudii ssp. koolauensis (no common name) Lobelia oahuensis (no common name) Phlegmariurus nutans (wawae' iole) Phyllostegia hirsuta (no common name) Pteris lidgatei (no common name) Sanicula pupurea (no common name) Tetraplasandra gymnocarpa (' ohe' ohe) Viola oahuensis (no common name)

“Proposed' management actions identified for listed plant species in 2001 INRMP are `subject to available funding'. We do not believe that the current management measures are sufficient to address the primary threats to these species, nor do we believe that there are sufficient assurances that appropriate conservation management strategies will be adequately funded or effectively implemented. Therefore, we cannot at this time find that management of this land under Federal jurisdiction is adequate to preclude a proposed designation of critical habitat “ 67 Fed. Reg. 37108, 37163 (May 28, 2002).

Army's Schofield Barracks East Range, Oahu (continued)

Bird: Chasiempis sandwichensis ibidis (O'ahu 'elepaio)

“To date, no military installation on Oahu has completed a final INRMP that provides sufficient management and protection for the elepaio.” 66 Fed. Reg. 63752, 63762 (Dec. 10, 2001).

“We have determined that current management [ at Schofield Barracks] does not adequately address the conservation needs of the Oahu elepaio....” 66 Fed. Reg. at 63768.

Army's Schofield Barracks Military Reservation, Oahu

Plants:

Abutilon sandwicense (no common name) Alectryon macrococcus (mahoe) Alsinidendron trinerve (no common name) Cenchrus agriminioides (kamanomano) Ctenitis squamigera (pauoa) Cyanea acuminata (haha) Cyanea grimesiana ssp. grimesiana (haha) Cyanea grimesiana ssp. obatae (haha) Cyanea superba (haha) Delissea subcordata (no common name) Diellia falcata (no common name) Diplazium molokaiense (no common name) Eragrostis fosbergii (no common name) Flueggea neowawraea (mehamehame) Gardenia mannii .(nanu), Isodendrion longifolium(aupaka) Labordia cyrtandrae (kamakahala) Lepidium arbuscula ('anaunau) Lipochaeta lobata var. leptophylla (nehe) Lipochaeta tenuifolid (nehe) Lobelia niihauensis (no'conumon name)' Lobelia oahuensis (no common' name) Neraudia anguldta (no common name) Nototrichium huinile (kulu'i) Phyllostegia hirsuta (no common name) Phyllostegia mollis'(no common name) Plantago princeps (ale) Schiedea hookeri (no common name) Schiedea nuttallii (no common name) Solanum sandwicense (popolo 'aiakeakua) Stenogyne kanehoana (no common name) Tetramolopium lepidotum ssp. lepidotum (no common name) Urera kaalae (opuhe) Viola chamissoniana ssp.' chamissoniana. (' olopu; pamakani).

“Proposed management actions identified for listed plant species in the 2001 INRMP are `subject to available funding'. We do not believe that the current management measures are sufficient to address the primary threats to these species, nor do we believe that there are sufficient assurances that appropriate conservation management strategies will be adequately funded or effectively.implemented. Therefore, we cannot at this time find that management of this land under Federal jurisdiction is adequate to preclude a proposed designation of critical habitat.” 67 Fed. Reg. 37108, 37163 (May 28, 2002).

Army's Schofield Barracks Military Reservation, Oahu (continued)

Bird: Chasiempis sandwichensis ibidis (O' ahu 'elepaio)

“To date, no military installation on O'ahu has completed a final INRMP that provides sufficient management and protection for the elepaio.” 66 Fed. Reg. 63752, 63762 (Dec. 10, 2001).

“[T]he threat to elepaio at Schofield Barracks of wildfires resulting from training activities has not been managed adequately. Larger scale rodent control and improved fire management will be necessary to meet the long-term conservation needs of the elepaio. We have determined that current management does not adequately address the conservation needs of the Oahu elepaio....” 66 Fed. Reg.at 63768.

Naval Computer and Telecommunications Area Master Station Pacific Radio Transmitting Facility at Lualualei, Oahu

Plant: Marsilea villosa (' ihi' ihi)

“One [plant] species, Marsilea villosa, occurs on land at the Naval Computer and Telecommunications Area Master Station Pacific Radio Transmitting Facility at Lualualei and we believe this land is needed for the recovery of this species. Some management actions to protect and maintain the population are included in the 2001 INRMP but these actions have not been adequately funded or effectively implemented (HINHP Database 2001; Navy 200la). Therefore, we cannot at this time find that management of this land under Federal jurisdiction is adequate to preclude a proposed designation of critical habitat.” 67 Fed. Reg. 37108, 37164 (May 28, 2002).

Naval Magazine Pearl Harbor Lualualei Branch, O' ahu

Plants:

Abutilon sandwicense (no common name) Alectryon macrococcus (mahoe) Bonamia menziesii (no common name) Chamaesyce kuwaleana ('akoko) Diellia falcata (no common name) Flueggea neowawraea (mehamehame) Hedyotis parvula (no common name) Lepidium arbuscula ('anaunau) Lipochaeta lobata (nehe) Lipochaeta tenuifolia (nehe) Lobelia niihauensis (no common name) Marsilea villosa ('ihi'ihi) Melicope sanit. johnii (alani) Neraudia angulata (no common name) Nototrichium humile (kulu'i) Phyllostegia hirsuta (no common name) Plantago princeps (ale) Sanicula mariversa (no common name) Schiedea hookeri (no common name) Tetramolopium filiforme (no common name) Tetramolopium lepidotum (no common name) Urera kaalae (opuhe)' Viola chamissoniana ssp. chamissoniana ('olopu; pamakani)

“We do not believe that these measures are sufficient to address the primary threats to these species on this land, nor do we believe that appropriate conservation management strategies have been adequately funded or effectively implemented. Therefore, we cannot at this time find that management of this land under Federal jurisdiction is adequate to preclude a proposed designation of critical habitat.” 67 Fed. Reg. 37108, 37164 (May 28, 2002).

Bird: Chasiempis sandwichensis ibidis (Oaahu 'elepaio)

“The primary threats to the elepaio, predation by alien rats and diseases carried by alien mosquitoes, have not been addressed on Navy lands.... After reviewing the draft INRMP for NAVMAG Pearl Harbor Lualualei Branch, we have determined that it does not provide for adequate protection or management for the Oahu elepaio. The draft INRMP does not include a management strategy for the Oahu elepaio and does not provide an evaluation of population distribution, quality and quantity of nesting habitat, threats, and management needs for recovery.” 66 Fed. Reg. 63752, 63767 (Dec. 10, 2001).

Army's Fort Shafter, H'ahu

Bird: Chasiempis sandwichensis ibidis (O'ahu 'elepaio)

“To date, no military installation on Oahu has completed a final INRMP that provides sufficient management and protection for the etepaio.” 66 Fed. Reg. 63752, 63762 (Dec. 10, 2001).

Army's Pohakuloa Training Area, Island of Hawaii Plants:

Asplenium fragile var. insulare (no common• name) Hedyotis coriacea (kio'ele) Neraudia ovata (no common name) Fortutaca sclerocarpa (po' e) Silene hawaiiensis (no common name) Silene lanceolata (no common name) Solanum incompletum (popolo ku mai) Spermolepis hawaiiensis (no common name) Tetramolopium arenarium (no common name) Zanthoxylum hawaiiense (a'e)

“However, current management is not sufficient to address many of the factors inhibiting the long-term conservation of any of these ten [plant] species and thus provide conservation benefits to the species. In addition there is no guarantee of long-term funding for on-going or future management actions.... Therefore, we can not at this time find that management on this land under Federal jurisdiction is adequate to preclude a proposed designation of critical habitat.” 67 Fed. Reg. 36968, 37002 (May 28, 2002).

DOD HAS USED MISLEADING ANECDOTES TO JUSTIFY ITS PROPOSAL TO EXEMPT ITSELF FROM THE ESA'S CRITICAL HABITAT PROTECTIONS

The Department of Defense (DOD) is again pursuing exemptions from key environmental laws. A legislative package with these exemptions has been sent to Congress, which will soon be casting crucial votes. If this legislation is approved it will greatly reduce DOD's obligations under the Endangered Species Act (ESA), Marine Mammal Protection Act, Clean Air Act, Superfund, and Resource Conservation and Recovery Act.

The DOD is requesting these exemptions even though the General Accounting Office concluded, based on a review of DOD's own readiness reports, that the-military is at a high state of readiness and that DOD has never demonstrated that adhering to: environmental laws has significantly impeded training.

What justification has DOD offered sweeping exemptions from the ESA? It turns out that the only evidence by DOD has consisted of highly misleading anecdotes.

The ESA's Critical Habitat Protections Have Not Significantly Impeded Training

An analysis of DOD's ESA anecdotes shows that sweeping exemptions from the ESA, are unwarranted -- DOD has been able to carry out its training mission while complying with the ESA. Due to successful negotiations, DOD frequently persuaded the U.S. Fish and Wildlife Service (FWS) to exclude DOD lands from critical habitat designations. In the rare cases where critical habitat has been designated, DOD has never identified an obstacle to achieving readiness. DOD has never found it necessary to utilize the “national security” exemption procedure provided by the ESA.

Camp Pendleton, California:

DOD ASSERTION: “At Camp Pendleton, proposed critical habitat under the Endangered Species Act would cover 57% of the base . . . .” (Congressional Testimony of Raymond F. DuBois, Jr., Deputy Undersecretary of Defense, March 13, 2003.)

THE REST OF THE STORY; Such proposals were rejected two years ago by the FWS in its final rules, which excluded all but 875 acres of Camp Pendleton's approximately 120,000 acres of training land from its final critical habitat designations. Camp Pendleton encompasses 125,118 acres, roughly 5,000 acres of which are leased for various non-military purposes, such as California's San Onofre State Park and agricultural operations. FWS's critical habitat designations have been focused almost entirely on these non-training lands.

The following list provides the number of acres originally proposed and actually designated for each of the five species with proposed critical habitat designations at Camp Pendleton. Some of these species share the same habitats, so acreage totals should not be combined to derive otal acres designated as critical habitat.

San Diego Fairy Shrimp Critical Habitat:

12,829 acres were proposed but only 40 acres were designated. The entire 40 acres designated are within San Onofre State Park and are not used for training.

Coastal California Gnatcatcher Critical Habitat:

50,992 acres were proposed but only 3,773 acres were designated. None of the 3,773 acres designated are used for training: 2,960 acres are within San Onofre State Park and the remainder are leased for agricultural purposes.

Tidewater Goby Critical Habitat:

731 acres were proposed but 959 acres were designated. Less than 875 acres of designated lands are potential training lands; the remaining 84 acres are within San Onofre State Park. Camp Pendleton has the only remaining population of this endangered fish `in the region.

Riverside Fairy Shrimp Critical Habitat:

5,567 acres were proposed but only 770, acres were designated. All of the 770 acres designated are in San Onofre State Park or otherwise in leased areas that, according to FWS, are “used minimally, if at all, by the Marines for training.” As a result of a building industry lawsuit,-this designation has now been vacated and a more extensive, economic impact analysis is now being prepared.

Arroyo Toad Critical Habitat:

38,210 acres were proposed but only 2,680 acres were designated. According to FWS, all of these designated acres are either in San Onofre State Park or on agricultural leased lands that are “used minimally, if at all, by the Marines for-”training.” As a result of a building industry lawsuit, this designation has now been vacated and a more extensive economic impact analysis is being prepared. In summary, despite the presence of 18 threatened and endangered species on Camp Pendleton, less than one percent of the training lands on the base - not the reported 57 percent - is designated as critical habitat for any species.

DOD ASSERTION: “At Camp Pendleton, proposed critical habitat under the Endangered Species Act would cover 57% of the base, including all 17 miles of the beach that is critical to training operations. ...” (Congressional Testimony of Raymond F. DuBois, Jr., Deputy Undersecretary of Defense, March 13, 2003. Emphasis added.)

THE REST OF THE STORY: The biggest limitation on training is not critical habitat designation but the presence of Interstate 5, a railroad, the San Onofre Nuclear Generation Plant, and other topographic access limitations. The ESA only limits large­unit amphibious landings on two to three miles, of the 17-mile beach and only during the five- to six-month nesting seasons of the endangered Western snowy plover and California least tern.

DOD essentially concedes that the training restrictions to protect the Western snowy plover and California least tern are not a significance to training. Camp Pendleton's successful efforts to protect the snowy plover were recently celebrated in DOD's “We're Saving a Few Good Species” poster campaign, with DOD declaring that “an elite military force can train in environmentally sensitive areas and protect a threatened species at the same time.” The exemption from the ESA's critical habitat provisions proposed by DOD. would not even affect the restrictions related to the snowy plover and the least tern – those restrictions are in place pursuant to the ESA's jeopardy and take. prohibitions. Neither species has designated critical habitat on Camp Pendleton.

DOD ASSERTION: The proposed amendment is narrowly tailored and will only apply to portions of Camp Pendleton and other military bases needed for training.

THE REST OF THE STORY: The amendment would apply to land owned by the military even if used for non-military purposes. In the case of Camp Pendleton, the amendment would apply to San Onofre State Park, which is leased to the State of California by the Marine Corps. San Onofre is the 10th most popular park in California and currently is home to several endangered and threatened species and their designated critical habitat. However, because the Park is “owned” by the Department, the amendment would preclude any designation of critical habitat on park property.

Naval Base at Coronado, California

DOD ASSERTION: “When Navy SEALs land on beaches at Naval Base Coronado during nesting season, they have to disrupt their tactical formation to move in narrow lanes marked by green tape, to avoid disturbing the nests of the Western snowy plover and California least tern. “

THE REST OF THE STORY: Of the base's 5,000-yard ocean coastline, the presence of these two endangered birds only restricts the use of one, 500-yard training lane and the restriction is only in place for the birds' five- to six-month nesting season. And, as the Navy acknowledges, this nest-marking “work around” has been important to species recovery.

San Clemente Island, California

DOD ASSERTION: The presence of the endangered loggerhead shrike shorebird has curtailed “the use of illumination rounds or other potentially incendiary shells during shore bombardment exercises at San Clemente during the six-month loggerhead shrike breeding season. “

THE REST OF THE STORY: The,loggerhead shrike first became imperiled on the island due to the Navy's introduction of a goat that decimated the bird's habitat. As a result of conservation efforts on the island, the shrike's population, once as low was 13 birds, now consists of 106 birds.

The use of live ordinance is restricted from June to October (not during the February­June breeding season) because of the risk of fire, but this could be remedied by the use of inert ordinance. The sole reason provided by the Marine Corps for its failure to use inert ordinance is that its inventory of this kind of ordinance is limited.

Vieques Island Naval Range, Puerto Rico

DOD ASSERTION: ESA protections for the endangered hawksbill and leatherback sea turtles have restricted training at this range, including the: possibility -of “halting the entire training exercise for a Carrier Battle Group' in the event of observing a single sea turtle. “

THE REST OF THE STORY As a result of formal consultation under the ESA, the Navy agreed to institute precautionary conservation measures. In response, FWS issued a no jeopardy Biological Opinion allowing battle group exercises to go forward without fear of delay due to the ESA. The Navy's conservation measures, such as the relocation of turtle eggs to a hatchery during amphibious landings, have resulted in the successful hatching of over 17,000 hawksbill and leatherback sea turtle eggs.

Barry M. Goldwater Air Force Range, Arizona

DOD ASSERTION: “In the calendar year 2000, almost 40 percent of the live fire missions at the Goldwater Range were canceled.”

THE REST OF THE STORY: This base is home to the last remaining Sonoran pronghorn in the United States - with just 99 animals left, it is one of the most endangered species of large mammals in the world. The pronghorn's continued existence is threatened by air and ground maneuvers, including bombing, strafing, artillery fire and low-level flights. Despite this fact, DOD's proposed legislation would not address the situation at Goldwater, as FWS has not designated any of the range as critical habitat for the pronghorn out of fear that doing so “could seriously limit the Air Force's ability to modify missions on its lands.” In return, the Air Force is participating in a regional ecological study with the Department of the Interior, the Nature Conservancy, and the Sonoran Institute as a starting point for their conservation efforts.

Fort Hood, Texas

DOD ASSERTION: “Only about 17% of Fort Hood lands are available for training without restriction. “

THE REST OF THE STORY: Endangered species conservation measures are singled out for blame in the limitation of training exercises at Fort Hood, yet over 74 percent of the base's 217,600 acres are currently restricted in order to accommodate large-scale cattle operations. Conversely, less than 34 percent of Fort Hood's training land has faced limited restrictions because of the presence of two endangered birds, the black capped , vireo and the golden cheeked warbler. Even on these restricted lands, however, many training activities are still allowed. In certain “core areas” within the endangered birds' habitat, the use of chemical grenades, artillery firing and digging are limited.

DOD has successfully worked with the ESA to achieve its military readiness objectives while conserving imperiled species. Please ask your lawmakers to oppose any proposals providing exemptions from the Endangered Species Act and other environmental laws!

For more information, contact Corry Westbrook, NWF Legislative

Representative, at 202-797-6840, westbrook@nwf.org , or John Kostyack, NWF Senior Counsel, at 202­, 797-6879, kostyack@nwf.org

DOD HAS A LONG HISTORY OF WORKING SUCCESSFULLY WITH THE ESA

The Department of Defense (DOD) is again pursuing exemptions from key environmental laws. A legislative package with these exemptions has been sent to Congress, which will soon be casting crucial votes. If this legislation is approved it will greatly reduce DOD's obligations under the Endangered Species Act (ESA), Marine Mammgl Protection Act, Clean Air Act, Superfund, and Resource Conservation and Recovery Act.

Last year, the Administration requested exemptions from six environmental statutes, and Congress settled on an exemption from the Migratory Bird Treaty Act.

DOD and ESA Success Stories

DOD has argued, and intends to do so again, that the ESA is too inflexible and that a sweeping new exemption is needed. However, this argument is not based on having encountered insurmountable hurdles complying with the ESA. In fact, the General Accounting Office has concluded, based on a review of DOD's own readiness reports, that the military is at a high state of readiness and that DOD has never demonstrated that the ESA has significantly impeded training.

Nonetheless, without any public debate, DOD sought to bypass the ESA's careful balancing between military training needs and conservation of imperiled wildlife. The facts show that this would be an unfortunate and unnecessary departure from DOD's long history of working successfully with the ESA.

Marine Corps Air Station Miramar, California

In an effort to protect the station's ten endangered species, the U.S. Fish and Wildlife Service (FWS) initially proposed to designate 65 percent of Miramar's land area as critical habitat. FWS later exercised its discretion under existing law and withdrew this proposed designation after the Marine Corps established a framework to protect and preserve the station's endangered species, guaranteed the plan would be implemented, and defined measures to judge the plan's effectiveness. According to DOD, in so doing, “the plan made military readiness activities and endangered species protection mutually compatible.”

Mokapu Peninsula of Marine Corps Base Hawaii

Among the 50 species of birds that call this island home are all four of Hawaii's endangered waterbirds: the Hawaiian stilt, Hawaiian coot, Hawaiian gallinule, and the Hawaiian duck. Management activities at the base have more than doubled the number of stilts on the base over the past 20 years. The growth of non-native plants, which can decrease the waterbirds' reproductive success, is controlled through annual “mud-ops” maneuvers by Marine Corps Assault Vehicles (AAVs). Just before the onset of nesting season, these 26 ton vehicles are deliberately deployed in supervised plow-like maneuvers that break the thick mats of invasive plants, improving nesting and feeding opportunities while also giving drivers valuable practice in unusual terrain.

Air Force in Alaska

In 1995 FWS found that the Air Force's low-level, high speed training flights in Alaska had the potential to disturb the three North American subspecies of endangered peregrine falcons. After the Air. Force consulted with FWS under the ESA, the Air Force agreed to protective “no-fly” zones around dense peregrine nesting locations. The peregrine falcon has since recovered to the point that it has been removed from the ESA's list of threatened and endangered species, and FWS has declared that “the knowledge gained by Air Force research projects was important in the recovery process.”

Marine Corps Base Camp Lejeune, North Carolina

Initially 10 percent of this base was restricted in order to protect the red-cockaded woodpecker, but now only 1 percent of the base is restricted for that purpose,: as the number of breeding pairs of the bird have doubled in the past ten years. The Marines attribute the success of its conservation efforts to its partnership with FWS, the State of North Carolina, academic experts, and environmental advocacy groups.

Fort Bragg, North Carolina

Fort Bragg contains important habitat for the red-cockaded woodpecker, enabling the base to proudly claim that “this single species has survived because of the havens provided by our installations' training land and ranges.” Working with the Nature Conservancy and others, DOD has created buffers around its installations and training areas, lessening restrictions on training while enabling the endangered red-cockaded woodpecker to move closer to recovery.

DOD has successfully worked with the ESA to achieve its military readiness objectives while conserving imperiled species. Please ask your lawmakers to oppose any proposals that exempt DOD from the ESA and other environmental laws!

For more information, contact Corry Westbrook, Legislative Representative, National Wildlife Federation, at 202-797-6840, westbrook@nwf org.

JAMIE RAPPAPORT CLARK

Jamie Rappaport Clark is Senior Vice President for Conservation Programs at the National Wildlife Federation, one of the nation's leading conservation education and advocacy organizations. In that position she directs conservation advocacy programs emanating from the organization's headquarters in Reston, Virginia, the Congressional and Federal Affairs Office and International Affairs Office in Washington, D.C., and 9 field offices, which are implemented in partnership with NWF's 46 state affiliate organizations and grassroots volunteers nationwide.

Before assuming NWF's lead conservation post in May, 2001, Clark was Director of the U.S. Fish and Wildlife Service (FWS) from 1997-2001. As head of the principal federal agency responsible for conserving, protecting, and enhancing fish, wildlife, plants, and their habitats, she oversaw the management of more than 530 national wildlife refuges and 66 national fish hatcheries. She also directed the administration and enforcement of the Endangered Species Act, Migratory Bird Treaty Act and other wildlife laws.

Prior to being named Director, Clark served the agency as Assistant Director, Ecological Services (1994-1997); Chief, Division of Endangered Species (1993-1994); Deputy Assistant Regional Director, Endangered Species/Permits, Southwest Region (1991-1993); and Senior Staff Biologist, Division of Endangered Species (1989-1991).

Some of the major conservation successes achieved during Clark's lengthy tenure with the FWS include the spectacular recovery of the gray wolf, bald eagle, and peregrine falcon; and the passage of the National Wildlife Refuge System Improvement Act, which ensures that activities on refuges are consistent with sound wildlife conservation principles.

Before joining the FWS, Clark was Fish and Wildlife Administrator for the Department of the Army; Natural/Cultural Resources Program Manager for the National Guard Bureau; Research Biologist, U.S. Army Medical Research Institute; and Wildlife Biologist, National Institute for Urban Wildlife.

Clark holds a M.S. in Wildlife Ecology from the University of Maryland. She received a B.S. in Wildlife Biology degree from Towson State University in Towson, Maryland, where she also did post-graduate work in environmental planning.

Clark lives with her husband, Jim and son, Carson (named after Rachel Carson) James Leopold in Leesburg, Virginia.