[House Report 108-99]
[From the U.S. Government Publishing Office]



108th Congress                                             Rept. 108-99
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

======================================================================



 
                NATIONAL SECURITY READINESS ACT OF 2003

                                _______
                                

                  May 14, 2003.--Ordered to be printed

                                _______
                                

  Mr. Pombo, from the Committee on Resources, submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1835]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Resources, to whom was referred the bill 
(H.R. 1835) to amend the Endangered Species Act of 1973 to 
limit designation as critical habitat of areas owned or 
controlled by the Department of Defense, and for other 
purposes, having considered the same, report favorably thereon 
with an amendment and recommend that the bill as amended do 
pass.
    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``National Security Readiness Act of 
2003''.

SEC. 2. MILITARY READINESS AND THE CONSERVATION OF PROTECTED SPECIES.

  (a) Designation of Critical Habitat.--Section 4(a)(3) of the 
Endangered Species Act of 1973 (16 U.S.C. 1533(a)(3)) is amended by 
striking ``prudent and determinable'' and inserting ``necessary''.
  (b) Limitation on Designation of Critical Habitat.--Section 4(a)(3) 
of the Endangered Species Act of 1973 (16 U.S.C. 1533(a)(3)) is 
amended--
          (1) by redesignating subparagraphs (A) and (B) as clauses (i) 
        and (ii), respectively;
          (2) by inserting ``(A)'' after ``(3)''; and
          (3) by adding at the end the following:
  ``(B)(i) The Secretary shall not designate as critical habitat any 
lands or other geographical areas owned or controlled by the Department 
of Defense, or designated for its use, that are subject to an 
integrated natural resources management plan prepared under section 101 
of the Sikes Act (16 U.S.C. 670a), if the Secretary determines that 
such plan addresses special management considerations or protection (as 
those terms are used in section 3(5)(A)(i)).
  ``(ii) Nothing in this paragraph affects the requirement to consult 
under section 7(a)(2) with respect to an agency action (as that term is 
defined in that section).
  ``(iii) Nothing in this paragraph affects the obligation of the 
Department of Defense to comply with section 9, including the 
prohibition preventing extinction and taking of endangered species and 
threatened species.''.
  (c) Consideration of Effects of Designation of Critical Habitat.--
Section 4(b)(2) of the Endangered Species Act of 1973 (16 U.S.C. 
1533(b)(2)) is amended by inserting ``the impact on national 
security,'' after ``the economic impact,''.

SEC. 3. AMENDMENT TO DEFINITION OF HARASSMENT UNDER MARINE MAMMAL 
                    PROTECTION ACT OF 1972.

  Section 3(18) of the Marine Mammal Protection Act of 1972 (16 U.S.C. 
1362(18)) is amended by striking the matter preceding subparagraph (B) 
and inserting the following:
          ``(18)(A) The term `harassment' means--
                  ``(i) any act that injures or has the significant 
                potential to injure a marine mammal or marine mammal 
                stock in the wild; or
                  ``(ii) any act that disturbs or is likely to disturb 
                a marine mammal or marine mammal stock in the wild by 
                causing disruption of natural behavioral patterns, 
                including, but not limited to, migration, surfacing, 
                nursing, breeding, feeding, or sheltering, to a point 
                where such behavioral patterns are abandoned or 
                significantly altered.''.

SEC. 4. EXEMPTION OF ACTIONS NECESSARY FOR NATIONAL DEFENSE.

  Section 101 of the Marine Mammal Protection Act of 1972 (16 U.S.C. 
1371) is amended by inserting after subsection (e) the following:
  ``(f) Exemption of Actions Necessary for National Defense.--(1) The 
Secretary of Defense, after conferring with the Secretary of Commerce, 
the Secretary of the Interior, or both, as appropriate, may exempt any 
action or category of actions undertaken by the Department of Defense 
or its components from compliance with any requirement of this Act, if 
the Secretary determines that it is necessary for national defense.
  ``(2) An exemption granted under this subsection--
          ``(A) subject to subparagraph (B), shall be effective for a 
        period specified by the Secretary of Defense; and
          ``(B) shall not be effective for more than 2 years.
  ``(3)(A) The Secretary of Defense may issue additional exemptions 
under this subsection for the same action or category of actions, 
after--
          ``(i) conferring with the Secretary of Commerce, the 
        Secretary of the Interior, or both as appropriate; and
          ``(ii) making a new determination that the additional 
        exemption is necessary for national defense.
  ``(B) Each additional exemption under this paragraph shall be 
effective for a period specified by the Secretary of Defense, of not 
more than 2 years.''.

SEC. 5. INCIDENTAL TAKINGS OF MARINE MAMMALS IN MILITARY READINESS 
                    ACTIVITY.

  Section 101(a)(5) of the Marine Mammal Protection Act of 1972 (16 
U.S.C. 1371(a)(5)) is amended--
          (1) in subparagraph (A)--
                  (A) by striking ``within a specified geographical 
                region'';
                  (B) by striking ``within that region of small 
                numbers''; and
                  (C) by adding at the end the following:
        ``Notwithstanding the preceding sentence, the Secretary is not 
        required to publish notice under this subparagraph with respect 
        to incidental takings while engaged in military readiness 
        activities authorized by the Secretary of Defense, except in 
        the Federal Register.'';
          (2) in subparagraph (B)--
                  (A) by striking ``within a specified geographical 
                region''; and
                  (B) by striking ``within one or more regions''; and
          (3) in subparagraph (D)--
                  (A) in clause (i)--
                          (i) by striking ``within a specific 
                        geographic region'';
                          (ii) by striking ``of small numbers''; and
                          (iii) by striking ``within that region''; and
                  (B) by adding at the end the following:
          ``(vi) Notwithstanding clause (iii), the Secretary is not 
        required to publish notice under this subparagraph with respect 
        to an authorization under clause (i) of incidental takings 
        while engaged in military readiness activities authorized by 
        the Secretary of Defense, except in the Federal Register.''.

SEC. 6. LIMITATION ON DEPARTMENT OF DEFENSE RESPONSIBILITY FOR CIVILIAN 
                    WATER CONSUMPTION IMPACTS ON CRITICAL HABITAT OR 
                    ENDANGERED SPECIES.

  (a) Rule of Construction.--For purposes of section 7 of the 
Endangered Species Act of 1973 (16 U.S.C. 1536), the terms ``action'' 
and ``agency action'', when applied to any action of the Department of 
Defense, shall not include water consumption of any kind unless--
          (1) such water consumption occurs on a military installation, 
        whether the source of the water consumed is located on or off 
        the installation; or
          (2) such water consumption occurs off of a military 
        installation and the source of the water is under the direct 
        control of the Department of Defense.
  (b) Voluntary Efforts.--Nothing in this section shall prohibit a 
military installation from voluntarily undertaking efforts to mitigate 
water use and consumption.
  (c) Definitions.--In this section:
          (1) The term ``military installation'' has the meaning given 
        such term in section 2687(e) of title 10, United States Code.
          (2) The term ``water consumption'' means the use of water, 
        from any source, for human purposes of any kind, including 
        household or industrial use, irrigation, or landscaping.
  (d) Effective Date.--This section applies only to Department of 
Defense actions regarding which consultation or reconsultation under 
section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536) is 
first required on or after the date of the enactment of this Act.

                          Purpose of the Bill

    The purpose of H.R. 1835 is to amend the Endangered Species 
Act of 1973 to limit designation as critical habitat of areas 
owned or controlled by the Department of Defense, and for other 
purposes.

                  Background and Need for Legislation


Endangered Species Act provisions

    Over the past decade, designation of critical habitat under 
the Endangered Species Act (ESA) has been a source of 
controversy. Due to the rigorous mandates required under the 
current ESA, specifically critical habitat designations, many 
think the program is unworkable. Judicial orders and court-
approved settlement agreements have left the U.S. Fish and 
Wildlife Service (USFWS) with limited ability to prioritize its 
species recovery programs and little or no scientific 
discretion to focus on those species in greatest need of 
conservation. The Administration acknowledges that court orders 
and mandates often result in leaving the USFWS with almost no 
ability to confirm scientific data in its administrative record 
before making decisions on listing and critical habitat 
proposals. In the wake of the current circumstances, the 
Administration has recognized that critical habitat provides 
relatively little additional protection to listed species.
    The Department of Defense (DOD) manages 25 million acres on 
more than 425 military installations in the United States, 
providing habitat for over 300 species listed as threatened or 
endangered. Under the Clinton Administration, recognizing the 
escalating challenge of balancing the ESA and that of DOD's 
primary mission of maintaining our Nation's military readiness, 
USFWS found a legitimate way to protect endangered species 
without invoking the critical habitat requirements of the ESA. 
Instead of new critical habitat designations, the 
Administration began using ``Integrated Natural Resource 
Management Plans'' (INRMPs), which are developed in close 
cooperation with USFWS and state wildlife agencies. INRMPs 
authorized in the Sikes Act (16 U.S.C. 670-670f)--ensure that 
readiness operation and natural resources conservation are both 
accommodated and consistent with stewardship and legal 
requirements. INRMPs provide for extensive public notice and 
comments. They are a comprehensive approach to ecosystem 
management that the USFWS has repeatedly determined to be 
sufficient to protect endangered species and their habitats.
    The use of an INRMP as an alternative to a critical habitat 
designation has been threatened by legal challenge. H.R. 1835 
will codify the use of INRMPs, thereby strengthening the legal 
defense of these plans before the court.

Marine Mammal Protection Act provisions

    In 1981, the Marine Mammal Protection Act (MMPA) was 
amended to include authority for the Secretary of Commerce (or 
the Secretary of the Interior in certain circumstances) to 
issue incidental take authorizations for specified activities 
(other than commercial fishing operations) in specified 
geographic regions for periods of not more than five years if 
the activity has a negligible impact and takes small numbers of 
marine mammals of a species or takes from a population stock 
that is not depleted. The purpose of this new authority was to 
allow activities to occur around marine mammals, but to ensure 
that the activity did not have an adverse effect on the 
species.
    The Secretary, when developing the implementing 
regulations, combined the negligible impact and small numbers 
requirements. The regulations, therefore, allowed the Secretary 
to make one finding. If an activity was determined to have a 
negligible impact on a marine mammal species, then the 
Secretary's determination also meant a small number of marine 
mammals would be affected and the activity could receive a 
small take authorization.
    In 1994, the MMPA was again amended to include a definition 
of ``harassment''. In brief, the definition of ``harassment'' 
is any act of pursuit, torment, or annoyance of marine mammals 
which: [level A] has the potential to injure and [level B] has 
the potential to disturb by causing a disruption of behavioral 
patterns. This definition was included in the MMPA to clarify 
what activities constitute harassment and to assist the 
Secretary in enforcing actions that may adversely affect marine 
mammals. However, the definition has not led to better 
enforcement of the MMPA. The Secretary has been unable to 
prosecute certain activities (like jet skiing) that have been 
directed at specific animals due to the two-tiered requirement 
of the definition. The Secretary is required to determine if an 
action is an act of pursuit, torment, or annoyance and if that 
can be done, the Secretary then makes a determination if the 
action was level A or level B harassment.
    The National Research Council (NRC) has issued three 
reports on the effects of sound on marine mammals: Low 
Frequency Sound and Marine Mammals: Current Knowledge and 
Research Needs, 1994; Marine Mammals and Low Frequency Sound: 
Progress Since 1994, 2000; and Ocean Noise and Marine Mammals, 
2003.
    In its 2000 report, the NRC concluded that regulating minor 
changes in behavior having no adverse impact did not make 
sense; instead, the regulations must focus on significant 
disruption of behaviors critical to survival and reproduction. 
The 2000 report recommended amending level B harassment to 
reflect these conclusions. The 2003 NRC report expanded further 
on the changes to level B harassment and recommended that level 
B harassment should be modified to focus on biologically 
significant disruption of behaviors critical to survival and 
reproduction (i.e. adverse impacts), instead of any detectable 
change in behavior.
    The 2000 report also recommended the removal of ``small 
numbers'' from the incidental take authorization, stating that 
it would be desirable to remove the phrase ``small number'' 
from the MMPA. The concern was that if the language was 
retained there would be a two test standard, small numbers 
first and if that were met, then negligible impact from the 
take of small numbers. The report stated, ``The removal of 
`small numbers' would prevent the denial of research permits 
that might insignificantly harass large numbers of animals and 
would leave the `negligible impact' test intact.''
    The Administration, first under President Clinton and then 
under President George W. Bush, proposed amending the 
definition of harassment in the Administration's draft MMPA 
reauthorization bill. The language in the Administration's bill 
modifies the NRC language to allow for proper implementation 
and enforcement. The ``harassment'' definition in H.R. 1835 is 
taken from the Administration's draft MMPA bill.
    DOD has requested amending the MMPA to provide relief for 
military readiness activities due to a recent court case, 
Natural Resources Defense Council, et al. v. Donald Evans, et 
al. The case focuses on the incidental take authorization 
issued to the Navy authorizing the testing and training of its 
Surveillance Towed Array Sensor System (SURTASS) Low Frequency 
Active (LFA) sonar.
    The plaintiffs in the case called into question the 
Secretary's implementing regulations, specifically the 
combination of the ``small numbers'' and ``negligible impact'' 
findings in its application to the sonar permit. In addition, 
the plaintiffs argue that in the final rule the Secretary used 
an illegal definition of ``harassment'' and too broadly defined 
the ``specified geographic region''. The judge ruled that the 
combination of the ``small number'' and ``negligible impact'' 
findings was in violation of the statute. The judge agreed with 
the plaintiffs that the Secretary did use an illegal definition 
of ``harassment'' and ruled that the Secretary used the best 
scientific information available when determining the specific 
areas the sonar could be tested. As a result of the court's 
rulings, the Navy has been severely limited in its ability to 
test and train its SURTASS LFA sonar.

                            Committee Action

    H.R. 1835 was introduced on April 29, 2003, by Congressmen 
Elton Gallegly (R-CA), Richard W. Pombo (R-CA), Jim Gibbons (R-
NV), and Don Young (R-AK). The bill was referred to the 
Committee on Resources and additionally to the Committee on 
Armed Services. On May 6, 2003, the Full Resources Committee 
held a hearing on the bill. On May 7, 2003, the Full Resources 
Committee met to mark up the bill. Chairman Richard Pombo 
offered an amendment to strike: (1) the language in Section 
2(a) of the bill which would allow federal agencies to protect 
listed species as is practicable and consistent with their 
primary purposes and; (2) the third paragraph in the harassment 
definition, in Section 3 of the bill, which referenced any act 
directed toward a specific individual, group, or stock of 
marine mammals. This amendment was adopted by voice vote. 
Congressman Rick Renzi (R-AZ) offered an amendment to add a new 
section to the bill on ``Limitation on Department of Defense 
Responsibility for Civilian Water Consumption Impacts on 
Critical Habitat or Endangered Species,'' by defining two terms 
in Section 7 of the ESA. The terms when applied to the 
Department of Defense shall not include water consumption of 
any kind unless the consumption occurs on the military 
installation or the consumption occurs off the installation, 
but the source of water is under the direct control of the 
Department. The amendment was adopted by a roll call vote of 22 
to 16, as follows:


    The bill as amended was then ordered favorably reported to 
the House of Representatives by a roll call vote of 25 to 13, 
as follows:


                      Section-by-Section Analysis


Section 1. Short title

    The Act may be cited as the ``National Security Readiness 
Act of 2003''.

Section 2. Military readiness and the conservation of protected species

    Subsection (a) amends section (4)(a)(3) of the Endangered 
Species Act by striking ``prudent and determinable'' and 
inserting ``necessary''.
    Subsection (b) amends section (4)(A)(3) of the ESA by 
adding a new (B)(i) which requires the Secretary of the 
Interior to not designate critical habitat for lands or other 
geographic areas owned or controlled by the Department of 
Defense that are subject to INRMPs if the Secretary determines 
such plans address special management conditions or 
protections. Consultations under section 7(a) of the ESA are 
still required and the Department of Defense is still obligated 
to comply with section 9 of the ESA.
    It is the intent of the Committee that an INRMP on a 
military installation shall be deemed a sufficient species 
management program so that a designation of critical habitat is 
not needed for that facility. H.R. 1835 will codify the policy 
brought forward by the Clinton and Bush Administrations that 
allowed the Department of Defense to cooperate with the USFWS 
in responsibly managing habitat.

Section 3. Amendment to definition of harassment under Marine Mammal 
        Protection Act of 1972

    Section 3(18) of the MMPA is amended by striking ``any act 
of pursuit, torment, or annoyance which'' after ``harassment 
means.'' It also modifies [level A] harassment to include 
``injures or has the significant potential to injure'' and 
[level B] harassment to include ``disturbs or is likely to 
disturb.'' The amended definition clarifies ``natural 
behavioral patterns'' as migration, surfacing, nursing, 
breeding, feeding, or sheltering. An act is considered level B 
``harassment'' if it effects a marine mammal to a point where 
the marine mammal's ``natural behavioral patterns'' are 
abandoned or significantly altered.

Section 4. Exemption of actions necessary for national defense

    This section amends the MMPA to include an exemption for 
the Secretary of Defense after conferring with the Secretary of 
Commerce, or the Secretary of the Interior, or both, as 
appropriate, for military readiness activities necessary for 
national defense. The Secretary of Defense can apply for an 
exemption for a period of not more than two years and can ask 
for extensions for periods of not more than two years.

Section 5. Incidental takings of marine mammals in military readiness 
        activity

    This section amends section 101(a)(5) of the MMPA by 
striking any reference to ``small numbers'' and ``specified 
geographic region.''
    The removal of these provisions would no longer require 
that activities authorized under this section be limited to a 
``specified geographic region'' or restricted to effecting only 
``small numbers'' of marine mammals. The scientifically-based 
``negligible impact'' standard will be the guide for the 
Secretary of Commerce when determining the effect of activities 
on marine mammals. The underlying rulemaking process will still 
analyze the impacts and scope of military readiness and other 
activities.
    It is the intent of the Committee that the deletion of 
``specified geographical regions'' and ``small numbers'' 
requirements from the MMPA will require the Secretary of 
Commerce to amend the current regulatory definition of 
``specified activity'', set forth in 50 Code of Federal 
Regulations 216.103, to ensure consistency with the MMPA as 
amended. ``Specific activity'' should be redefined to preclude 
mention of ``small numbers'' and ``specified geographic 
region''.
    These proposed amendments do not change the applicant's 
requirement of having to show that his or her activities are 
having a negligible impact on the marine mammal species and 
populations. Additionally, the applicant will have to 
demonstrate that his or her activities will not have an 
unmitigable adverse impact on the availability of such species 
or stocks for subsistence uses pursuant to the MMPA. These 
analyses are the key elements to maintaining the health of 
marine mammal species and are the premise for take 
authorizations under the MMPA.
    It is also the intent of the Committee that nothing in this 
provision would preclude the National Marine Fisheries Service 
from issuing an incidental take authorization only for the area 
described in the permit application.
    This section also strikes all notice requirements for an 
incidental take authorization for a military readiness 
activity, except the Federal Register publication. In referring 
to military readiness activities, the Committee means those 
activities defined in Section 315(f) of Public Law 107-314 (Bob 
Stump National Defense Authorization Action for Fiscal Year 
2003). The section also clarifies that references to military 
readiness activities ``authorized by the Secretary of Defense'' 
do not require a specific authorization of each activity by the 
Secretary of Defense and that the Secretary of Defense is not 
prohibited from delegating such authority. Finally, none of 
these changes in any way requires the public disclosure of 
classified information.

Section 6. Limitation on Department of Defense responsibility for 
        civilian water consumption impacts on critical habitat or 
        endangered species

    (a) Rule of Construction. The terms ``action'' and ``agency 
action'' in Section 7 of the ESA are clarified so as when 
applied to any action of the Department of Defense the terms 
shall not include water consumption of any kind unless the 
consumption occurs on the military installation or the 
consumption occurs off the installation, but the source of 
water is under the direct control of the Department.
    (b) Voluntary Efforts. Nothing in the section shall 
prohibit a military installation from voluntarily mitigating 
water use and consumption.
    (c) Definitions. The terms ``military installation'' and 
``water consumption'' are defined.
    (d) Effective date. The requirements regarding consultation 
or reconsultation under section 7 of the ESA is first required 
on or after the date of enactment of this Act.

            Committee Oversight Findings and Recommendations

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Resources' oversight findings and recommendations 
are reflected in the body of this report.

                   Constitutional Authority Statement

    Article I, section 8 of the Constitution of the United 
States grants Congress the authority to enact this bill.

                    Compliance With House Rule XIII

    1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(3)(B) 
of that rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    3. General Performance Goals and Objectives. This bill does 
not authorize funding and therefore, clause 3(c)(4) of rule 
XIII of the Rules of the House of Representatives does not 
apply.
    4. Congressional Budget Office Cost Estimate. Under clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for this bill from the Director of the Congressional Budget 
Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 12, 2003.
Hon. Richard Pombo,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1835, the National 
Security Readiness Act of 2003.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Deborah Reis.
            Sincerely,
                                          Barry B. Anderson
                               (For Douglas Holtz-Eakin, Director).
    Enclosure.

H.R. 1835--National Security Readiness Act of 2003

    H.R. 1835 would exempt the Department of Defense (DoD) from 
complying with certain requirements of the Endangered Species 
Act of 1973 (ESA) and the Marine Mammal Protection Act of 1972. 
The bill also would amend the ESA to change the standard for 
determining when critical habitat for threatened or endangered 
species should be designated and would prohibit such 
designations from being made on land owned or controlled by 
DoD.
    CBO estimates that implementing H.R. 1835 would have no 
significant impact on the federal budget. Based on information 
provided by the Department of the Interior, we do not expect 
the revisions made to the two conservation acts would cause any 
change in the workload of the agencies responsible for 
implementing and enforcing them (primarily the U.S. Fish and 
Wildlife Service and the National Oceanic and Atmospheric 
Administration). The DoD expects that the changes would provide 
additional flexibility in carrying out military training and 
testing exercises. CBO expects that the department could 
experience some reduction in the costs of complying with the 
two acts, but realizing any such savings would depend on future 
appropriations actions. Enacting this bill would not affect 
direct spending or revenues.
    H.R. 1835 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Deborah Reis. 
The estimate was approved by Peter H. Fontaine, Deputy 
Assistant Director for Budget Analysis.

                    Compliance With Public Law 104-4

    This bill contains no unfunded mandates.

                Preemption of State, Local or Tribal Law

    This bill is not intended to preempt any State, local or 
tribal law.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

            SECTION 4 OF THE ENDANGERED SPECIES ACT OF 1973


       DETERMINATION OF ENDANGERED SPECIES AND THREATENED SPECIES

  Sec. 4. (a) General.--(1)  * * *

           *       *       *       *       *       *       *

  (3)(A) The Secretary, by regulation promulgated in accordance 
with subsection (b) and to the maximum extent [prudent and 
determinable] necessary--
          [(A)] (i) shall, concurrently with making a 
        determination under paragraph (1) that a species is an 
        endangered species or a threatened species, designate 
        any habitat of such species which is then considered to 
        be critical habitat; and
          [(B)] (ii) may, from time-to-time thereafter as 
        appropriate, revise such designation.
  (B)(i) The Secretary shall not designate as critical habitat 
any lands or other geographical areas owned or controlled by 
the Department of Defense, or designated for its use, that are 
subject to an integrated natural resources management plan 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), 
if the Secretary determines that such plan addresses special 
management considerations or protection (as those terms are 
used in section 3(5)(A)(i)).
  (ii) Nothing in this paragraph affects the requirement to 
consult under section 7(a)(2) with respect to an agency action 
(as that term is defined in that section).
  (iii) Nothing in this paragraph affects the obligation of the 
Department of Defense to comply with section 9, including the 
prohibition preventing extinction and taking of endangered 
species and threatened species.
  (b) Basis for Determinations.--(1)  * * *
  (2) The Secretary shall designate critical habitat, and make 
revisions thereto, under subsection (a)(3) on the basis of the 
best scientific data available and after taking into 
consideration the economic impact, the impact on national 
security, and any other relevant impact, of specifying any 
particular area as critical habitat. The Secretary may exclude 
any area from critical habitat if he determines that the 
benefits of such exclusion outweight the benefits of specifying 
such area as part of the critical habitat, unless he 
determines, based on the best scientific and commercial data 
available, that the failure to designate such area as critical 
habitat will result in the extinction of the species concerned.

           *       *       *       *       *       *       *

                              ----------                              


MARINE MAMMAL PROTECTION ACT OF 1972

           *       *       *       *       *       *       *


                              DEFINITIONS

  Sec. 3. For the purposes of this Act--
          (1)  * * *

           *       *       *       *       *       *       *

          [(18)(A) The term ``harassment'' means any act of 
        pursuit, torment, or annoyance which--
                  [(i) has the potential to injure a marine 
                mammal or marine mammal stock in the wild; or
                  [(ii) has the potential to disturb a marine 
                mammal or marine mammal stock in the wild by 
                causing disruption of behavioral patterns, 
                including, but not limited to, migration, 
                breathing, nursing, breeding, feeding, or 
                sheltering.]
          (18)(A) The term ``harassment'' means--
                  (i) any act that injures or has the 
                significant potential to injure a marine mammal 
                or marine mammal stock in the wild; or
                  (ii) any act that disturbs or is likely to 
                disturb a marine mammal or marine mammal stock 
                in the wild by causing disruption of natural 
                behavioral patterns, including, but not limited 
                to, migration, surfacing, nursing, breeding, 
                feeding, or sheltering, to a point where such 
                behavioral patterns are abandoned or 
                significantly altered.

           *       *       *       *       *       *       *


         TITLE I--CONSERVATION AND PROTECTION OF MARINE MAMMALS

                       MORATORIUM AND EXCEPTIONS

  Sec. 101. (a) There shall be a moratorium on the taking and 
importation of marine mammals and marine mammal products, 
commencing on the effective date of this Act, during which time 
no permit may be issued for the taking of any marine mammal and 
no marine mammal or marine mammal product may be imported into 
the United States except in the following cases:
          (1)  * * *

           *       *       *       *       *       *       *

          (5)(A) Upon request therefor by citizens of the 
        United States who engage in a specified activity (other 
        than commercial fishing) [within a specified 
        geographical region], the Secretary shall allow, during 
        periods of not more than five consecutive years each, 
        the incidental, but not intentional, taking by citizens 
        while engaging in that activity [within that region of 
        small numbers] of marine mammals of a species or 
        population stock if the Secretary, after notice (in the 
        Federal Register and in newspapers of general 
        circulation, and through appropriate electronic media, 
        in the coastal areas that may be affected by such 
        activity) and opportunity for public comment--
                  (i)  * * *

           *       *       *       *       *       *       *

        Notwithstanding the preceding sentence, the Secretary 
        is not required to publish notice under this 
        subparagraph with respect to incidental takings while 
        engaged in military readiness activities authorized by 
        the Secretary of Defense, except in the Federal 
        Register.
          (B) The Secretary shall withdraw, or suspend for a 
        time certain (either on an individual or class basis, 
        as appropriate) the permission to take marine mammals 
        under subparagraph (A) pursuant to a specified activity 
        [within a specified geographical region] if the 
        Secretary finds, after notice and opportunity for 
        public comment (as required under subparagraph (A) 
        unless subparagraph (C)(i) applies), that--
                  (i)  * * *
                  (ii) the taking allowed under subparagraph 
                (A) pursuant to one or more activities [within 
                one or more regions] is having, or may have, 
                more than a negligible impact on the species or 
                stock concerned.

           *       *       *       *       *       *       *

          (D)(i) Upon request therefor by citizens of the 
        United States who engage in a specified activity (other 
        than commercial fishing) [within a specific geographic 
        region], the Secretary shall authorize, for periods of 
        not more than 1 year, subject to such conditions as the 
        Secretary may specify, the incidental, but not 
        intentional, taking by harassment [of small numbers] of 
        marine mammals of a species or population stock by such 
        citizens while engaging in that activity [within that 
        region] if the Secretary finds that such harassment 
        during each period concerned--
                  (I)  * * *

           *       *       *       *       *       *       *

          (vi) Notwithstanding clause (iii), the Secretary is 
        not required to publish notice under this subparagraph 
        with respect to an authorization under clause (i) of 
        incidental takings while engaged in military readiness 
        activities authorized by the Secretary of Defense, 
        except in the Federal Register.

           *       *       *       *       *       *       *

  (f) Exemption of Actions Necessary for National Defense.--(1) 
The Secretary of Defense, after conferring with the Secretary 
of Commerce, the Secretary of the Interior, or both, as 
appropriate, may exempt any action or category of actions 
undertaken by the Department of Defense or its components from 
compliance with any requirement of this Act, if the Secretary 
determines that it is necessary for national defense.
  (2) An exemption granted under this subsection--
          (A) subject to subparagraph (B), shall be effective 
        for a period specified by the Secretary of Defense; and
          (B) shall not be effective for more than 2 years.
  (3)(A) The Secretary of Defense may issue additional 
exemptions under this subsection for the same action or 
category of actions, after--
          (i) conferring with the Secretary of Commerce, the 
        Secretary of the Interior, or both as appropriate; and
          (ii) making a new determination that the additional 
        exemption is necessary for national defense.
  (B) Each additional exemption under this paragraph shall be 
effective for a period specified by the Secretary of Defense, 
of not more than 2 years.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    H.R. 1835 purports to address concerns raised by the 
Department of Defense that the Endangered Species Act (ESA) and 
Marine Mammal Protection Act (MMPA) undermine national security 
and impede military readiness. Yet H.R. 1835 goes beyond the 
provisions the Administration requested in the Department of 
Defense Authorization Act of 2004 transmitted to Congress on 
April 10, 2003. The Administration has not asked for H.R. 1835 
and failed to even take a position on the legislation at the 
May 6, 2003, hearing.
    In our view, H.R. 1835 overreaches and is unnecessary. The 
Secretary of Defense has never used the exemptions available to 
him under Public Law 105-85 and Section 7(j) of the ESA. In 
addition, the General Accounting Office has found that training 
readiness remains high at military installations 
notwithstanding our environmental laws.
    Under Section 4(b)(2) of the ESA, the Secretary of the 
Interior already has the discretion to substitute preparation 
of an adequate Integrated National Resources Management Plan 
(INRMP) prepared by the Secretary of Defense pursuant to the 
Sikes Act for critical habitat designation. In fact, it is the 
practice of the Fish and Wildlife Service to substitute an 
INRMP that provides for the conservation of the species, and 
includes assurances that the INRMP will be implemented and 
effective, for critical habitat designation, according to the 
Congressional Research Service. This discretion has never been 
challenged successfully in court. Unless the Fish and Wildlife 
Service continues this policy under H.R. 1835, the only time 
the conservation needs of the species will be examined will 
come during a Section 7 consultation when it is likely to be 
too late as the species and habitat may already have dwindled 
significantly.
    The Majority complains that lawsuits are driving policy at 
the Fish and Wildlife Service, yet the Committee failed to 
adopt the one provision recommended in testimony given by 
Interior Assistant Secretary for Fish and Wildlife and Parks 
Craig Manson to avoid future litigation. He asked the Committee 
to strike the words ``provides the `special management 
considerations or protection' required under the Endangered 
Species Act (16 U.S.C. 1532(5)(A)) and'' in Section 2(c)(3) of 
H.R. 1835 but this recommendation was ignored.
    Section 2(b) of H.R. 1835 would require the Secretary of 
the Interior to designate critical habitat to the maximum 
extent ``necessary'' without defining ``necessary.'' This 
change would give the Interior Secretary too much latitude at a 
time when the world is on the brink of the sixth mass 
extinction, according to testimony presented to the Committee. 
As critical habitat shrinks, endemic species die at a 
proportional rate. Once a species is lost, it is gone forever 
and so too may be key sources of food and medicine. The 
Administration did not request the language in Section 2(b) and 
it should be dropped.
    Similarly, Section 6 of H.R. 1835 would exempt the 
Department of Defense from Section 7 of the ESA for any of its 
off-base actions related to water consumption; here again, the 
Department of Defense is not seeking this amendment adopted in 
full Committee and it has nothing to do with national security. 
Section 6 of H.R. 1835 applies nationwide and should be 
deleted.
    In regards to the MMPA, H.R. 1835 does nothing to address 
the concerns raised regarding the DoD proposed changes to 
weaken the Act. Rather, the bill compounds these problems by 
broadening the scope of these changes beyond that proposed by 
the Pentagon to further undermine protections for all marine 
mammals of which several species still remain listed after 
thirty years as endangered or threatened.
    The Navy portrays its proposed changes to the MMPA's 
definition of harassment as ``narrowly tailored to protect 
military readiness activities, not the whole scope of Defense 
Department activities'', and asserts that the new definition 
would provide ``greater clarity and notice regarding 
application of the MMPA to military readiness activities.'' Yet 
section 3 of H.R. 1835, which parallels the DoD proposal, can 
be considered neither narrow in scope, an improvement on 
suggested ambiguities in the present definition, nor science-
based.
    First, the definition proposed in section 3 does not 
reflect the recommendations of the National Research Council. 
The NRC did not recommend any change to Level A harassment, and 
the NRCs recommended change to the language of Level B 
harassment did not include the subjective and ambiguous phrase 
``to a point where such behavioral patterns are abandoned or 
significantly altered.'' That this proposed language no more 
clarifies the existing definition of harassment is succinctly 
stated in Dr. Peter Tyack's March 13, 2003 testimony before the 
Military Readiness Subcommittee of the House Armed Services 
Committee. Dr. Tyack is a renowned marine mammal biologist and 
the principal research scientist for the Navy's SURTASS/LFA 
scientific research program. Tyack clearly states that, ``The 
proposed changes in the definition of harassment do not make 
sense from a biological perspective and do not fully clarify 
the problems with the earlier definition.'' Assertions made by 
the Navy that this new definition is science-based and a 
clarification are a sham.
    Furthermore, this definition would reverse the essential 
protective mandate that is the operative premise of the MMPA. 
In a written response to questions contained in the Committee 
on Resources Report 107-65, the Chairman of the Marine Mammal 
Commission, Dr. John Reynolds, notes that ``the proposed 
definition effectively reverses the precautionary burden of 
proof [on a permit applicant] that has been a hallmark of the 
[MMPA] since its inception in 1972.'' This critique is even 
more applicable considering the provisions in section 5 of H.R. 
1835 that would strike from the MMPA key conservation terms 
specifying small numbers and specific geographic regions 
necessary to determine the nature and extent of incidental harm 
to a marine mammal or marine mammal population caused by a 
proposed activity. That these terms were also key elements of 
the courts decision in NRDC v. Evans, 232 F. Supp.2d 1003 (n.D. 
Cal 2002) which enjoined the Navy from global deployment of its 
SURTASS/LFA sonar system is not a coincidence.
    The Navy's rationale for seeking this new definition is to 
spare military readiness activities from a purported regulatory 
burden of seeking MMPA permits. We note again for the record 
that neither the Departments of Commerce nor Interior have ever 
denied a permit request made by the Navy. Even if we found the 
Navy's argument credible, we cannot ignore the fact that the 
definition in H.R. 1835 would apply to all activities, not just 
military readiness activities. Far from being a simple 
clarification, this new definition would provide a far broader 
and much higher legal threshold for regulators to determine an 
activity's potential and likely harm. Consequently, a 
significant loophole would be created to allow a great many 
more activities to be granted permits for incidental 
harassment, or worse, to evade any permit review at all.
    Finally, section 4 of H.R. 1835 would grant to the 
Secretary of Defense an audacious and unwarranted discretionary 
authority to exempt any action, or any category of actions, 
undertaken by the Department of Defense from compliance with 
the MMPA. As stated earlier, the Secretary has never invoked 
exemption authorities currently available to him under other 
statutes. Accordingly, we question the necessity or practical 
benefit of authorizing an exemption authority under the MMPA. 
Yet, even if an exemption authority was found to be desirable, 
the exemption authority in H.R. 1835, which would obviate any 
meaningful environmental review by the Federal resource 
agencies, revoke any requirement for public comment, and allow 
exemptions to be endlessly renewed at two year intervals, is 
utterly remarkable in its contrast to other comparable 
exemption authorities which ensure at least some measure of 
administration or public accountability.
    In closing, lacking any compelling data to conclusively 
demonstrate that military readiness and training have suffered 
as a result of compliance with the ESA and MMPA, we are not 
persuaded that the changes to these acts proposed by the 
military are justified. If anything, the recently completed 
Iraqi Freedom campaign verifies once again that our armed 
forces remain the best trained, best equipped force on the 
planet. The majority has opportunistically selected the present 
circumstances as a thin veneer behind which to move legislation 
to weaken key aspects of the ESA and MMPA that it could not 
achieve otherwise. Such over-reaching should not be rewarded, 
and the House should reject this legislation.

                                   Nick Rahall.
                                   George Miller.
                                   Ed Markey.
                                   Dale E. Kildee.
                                   Frank Pallone, Jr.
                                   Raul M. Grijalva.