Fact Sheet: H.R. 1588, Defense Authorization Bill

The House Armed Services Committee has significantly widened the scope of the request by the Department of Defense (DOD) for exemptions – a request already sweeping, unnecessary and extremely damaging – to the Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA). Exemptions to ESA and MMPA included in H.R. 1588 constitute an extreme overreach, significantly weakening fundamental provisions of the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA). A provision added to the bill for Rep. Renzi (R-AZ) is an additional attack on the ESA that would threaten Arizona’s San Pedr River – one of the most biologically diverse ecosystems on earth.

1. ESA-Related Provisions in the Bill Seek to:

Knock Down One of the ESA’s “Pillars of Protection.” Designation of critical habitat is one of the pillars of protection for listed species under the ESA. Habitat loss is the driving force in the decline of more than 85 % of imperiled species – without critical habitat as a conservation tool, species recovery will be exceedingly difficult. The ESA has clearly established biological rules determining when critical habitat should and should not be designated. H.R. 1588 seeks to delete these rules, requiring that only critical habitat that is deemed "necessary” shall be designated. As “necessary” is not defined, H.R. 1588 could give complete discretion to the Secretaries of Interior and Commerce to make the decision without any criteria. Since the Bush Administration has clearly stated its belief that critical habitat provides virtually no protection, this provision could result in most, if not all species being deprived of critical habitat. Federal agencies could be free to log, mine, or drill for oil and gas without having to consider habitat needed for recovery of imperiled species. This provision is far-reaching, applying to all lands, not just DOD lands.

Give the DOD a Free-Pass to Ignore Habitat Protection. The bill also includes the DOD proposal which seeks to eliminate the designation of critical habitat on all lands “owned or controlled” by the military.DOD controls 25 million acres of land where some of the best habitat remains for more than 300 species on the brink of extinction. DOD’s proposal would prevent the Fish and Wildlife Service or National Marine Fisheries Service from designating critical habitat on DOD lands if an Integrated Natural Resources Management Plan has been developed pursuant to the Sikes Act. This would do nothing to ensure that training activities are designed in a manner that avoids unnecessary destruction of essential habitats. INRMPs have been shown to be inadequate for the protection of endangered species. The ESA already has tremendous flexibility, and the agencies regularly work with the DOD to exclude lands from critical habitat designation on a case-by-case basis. Moreover, the ESA includes a national security exemption that has never been utilized by the DOD.

Threaten Ecological Treasure-- Renzi’s Amendment Devastates San Pedro National Conservation Area. This rider exempts the DOD at Fort Huachuca from any responsibility for off-base groundwater pumping that threatens the existence of the San Pedro River. The rider was not requested by the DOD and does not address military training or preparedness. It instead exempts responsibility for all water use occurring off-base, including water use associated with "irrigation, or landscaping.” Off-base irrigation and landscaping have nothing to do with national security or military training. The Fort estimates that it is responsible for 54% of the population in the Upper San Pedro River Basin and that the water used on and off-base by that population is a significant threat to the San Pedro River. In accordance with the ESA, Fort Huachuca agreed on August 23, 2002 to implement water conservation measure to protect the river and several endangered species. The water conservation efforts, developed jointly by the Fort and the Fish and Wildlife Service, caused no changes to military training. In light of the agreement, the Secretary of the Army gave the Fort an environmental award for its efforts on April 24, 2003. The problem has been solved – there is no need for the Renzi rider. The The San Pedro River watershed is one of the most biologically diverse ecosystems on earth and one of North America's most important wildlife havens. More than four hundred bird species – nearly half the U.S. total – live in or migrate through the basin. It is home to 180 species of butterflies, 87 species of mammals and 68 amphibians and reptiles. The San Pedro has the highest diversity of vertebrate species in the inland U.S. and the second highest diversity of land mammals in the world. In 1988, Congress designated a 45 mile stretch of the upper river as the nation’s first Riparian National Conservation Area.

MMPA-Related Provisions in the Bill Seek to:

Significantly Weaken a Core Provision Protecting Whales and Dolphins.  The MMPA's prohibition on the “harassment” of marine mammals is the key to applying for a permit under the MMPA. H.R. 1588 takes a DOD proposal to weaken the current definition of “harassment” a step further by applying the DOD-proposed definition broadly to all ocean users. This change would allow an increasing number of harmful projects, such as oil and gas exploration and high intensity sonar testing, to escape analysis by wildlife agencies, public comment, monitoring, and mitigation. The proposed change would introduce ambiguous terms and conditions into the definition that will result in more confusion, more legal action, and weaken the MMPA's long and successful history of marine mammal conservation.

Eliminate Important Limitations on Killing or Injuring Marine Mammals. The bill would eliminate key conservation elements of the permitting process by deleting the current requirement that any injuring or killing of marine mammals be limited to "small numbers" in a "specific geographical region." DOD requested this change for military readiness activities, and H.R. 1588 expands this ill-conceived amendment to all activities and all citizens or corporations. Marine mammal scientific knowledge and conservation status varies from ocean to ocean, species to species, and behavior to behavior. Current law requires that regions of operation and numbers of animals impacted be drawn as narrowly as possible, ensuring that potential impacts are reviewed on a realistic basis. Eliminating these provisions would allow DOD to seek global exemptions to disturb, kill, or injure unlimited numbers of marine mammals.

Create Broad Exemptions Allowing DOD to Bypass Any Requirement of the Act. 
Under H.R. 1588, DOD would be able to grant itself categorical exemptions to the MMPA for any "category of actions" necessary for national defense. Exemptions would run for two years, but be endlessly renewable for additional two-year periods. The exemption is not conditioned on any initial stage of environmental review, and even activities conducted in peacetime and whose mitigation would not have a serious adverse impact on readiness could fall outside of the process and be authorized, receiving no mitigation, monitoring, or even basic review. The proposal excludes any meaningful involvement of wildlife agencies, states, Congress, and the public in the execution or review of these broad exemptions. The DOD has never been denied a permit under the MMPA, making such sweeping changes completely unnecessary