[CPEO-MEF] Readiness and Range Preservation Initiative - #3 DoD Sectional Analys

[Lenny Siegel <lsiegel@cpeo.org>]

Below is the Department of Defense (DoD) official Sectional Analysis of
the legislative language it submitted to Congress April 19, 2002 as the
Readiness and Range Preservation Initiative. On Monday, April 22, 2002,
I hope to make a formatted version of this and two other related
documents available on the publications page of the CPEO web site.

******


Section 1201.  This provision would be codified under title 10 of the
United States Code, Armed Forces.  It is designed to ensure that the
Armed Forces of the United States are ready for the first day of combat
while defining some of the environmental stewardship responsibilities of
the military departments.

Military readiness is essential to the security of the United States, to
the protection of the lives and well-being of our citizens, and to the
preservation of our freedoms, economic prosperity, and our environmental
heritage.  A well-trained and well-equipped military is a principal
component of military readiness, and to be well-trained and prepared,
soldiers, sailors, Marines, and airmen must train in the same manner as
they fight.  Testing of military equipment, vehicles, weaponry, and
sensors is also a principal component of military readiness.  In this
regard, live-fire testing and training are an integral and necessary
part of realistic military operations, testing, and training.  Military
lands and test and training ranges (including land, sea and air
training, testing, and operating areas) exist to ensure military
preparedness by providing realistic test and training opportunities.

The shield of military readiness protects our Nation's environment - our
land, air, and water, as well as the fish, wildlife, and plant species
that inhabit them.  In addition to defending against foreign threats,
the military acts as trustee, helping to protect the environment by its
prudent and conscientious management of the natural resources of our
military lands.  Largely as a result of this stewardship, military lands
present acceptable habitat for plants and wildlife, including protected species.

The Defense Department is proud of its record of environmental
stewardship and is committed to maintaining and improving its
stewardship in future.  Our successful stewardship reflects not only the
conscientious efforts of the men and women of the Armed Forces but also
the overall compatibility of the Department's mission with environmental protection.

In recent years, however, novel interpretations and extensions of
environmental laws and regulations, along with such factors as
population growth and economic development, have significantly
restricted the military's access to and use of military lands and test
and training ranges, and limited its ability to engage in live-fire
testing and training.  This phenomenon - known as "encroachment" - has
markedly restricted the military's ability to test and train
realistically and, unless checked, promises to produce further
restrictions in the future.  Encroachment has already negatively
affected military readiness and will continue to erode it unless this
trend is halted.  In some cases, environmental litigation threatens to
thwart the primary mission of key military facilities.

National security requires that the military be able to train
effectively, adequately test systems realistically before fielding, and
conduct military operations.  Environmental litigation seeking to extend
existing laws and regulations into contexts for which they were not
designed, and which frustrate the use of military lands and test and
training ranges for their intended purposes, requires focused
legislation to ensure that military readiness receives appropriate consideration.

This legislation is narrowly tailored to protect military readiness
activities, not the whole scope of Defense Department activities.  The
thrust of the legislation is to prevent further extension of regulation
rather than to roll back existing regulation.  It also includes a number
of provisions designed to enhance the synergy between military readiness
and environmental protection, including provisions encouraging creation
of environmental buffer zones around military facilities.

Section 2015.  Purposes.

This section sets out the purposes of this chapter and directs the
Secretary of Defense to implement the chapter consistent with those
purposes.  The chapter promotes military readiness by addressing
problems created by encroachment on military lands, airspace, and
training and testing while ensuring that the Department of Defense
remains mindful of its stewardship responsibilities.  It reaffirms the
principle that military lands and airspace exist to ensure military
preparedness.  Finally, it establishes the appropriate balance between
military readiness and  environmental regulation and establishes a
framework to ensure the long-term sustainability of military test and
training ranges.

Section 2016.  Definitions.

This section provides definitions for the terms "military readiness
activities," "combat" and "combat use," and the "Department," as they
are used in the statute.  Through the definition of "Department,"
military readiness activities of the Coast Guard are covered, both when
it operates as a service in the Department of the Navy and when it
operates as a component of the Department of Transportation.

Section 2017.  Military readiness and the conservation of protected species.

This section clarifies the relationship between military training and a
number of provisions in various conservation statutes, including the
Sikes Act, the Endangered Species Act, the Migratory Bird Treaty Act,
and the Marine Mammal Protection Act.

Subsection (a) provides that Integrated Natural Resources Management
Plans under the Sikes Act provide the special management considerations
or protection required under the Endangered Species Act and obviate the
requirement for designation of critical habitat on military lands for
which such Plans have been completed.  The Sikes Act requires military
installations to prepare plans that integrate the protection of natural
resources on military lands with the use of military lands for military
training.  The U.S. Fish and Wildlife Service and a concerned State
wildlife agency are consulted in the preparation of such plans and their
concurrence, as well as public comment, is sought on the final plan. 
Thus, the planning process offers adequate opportunity for consideration
of the use of such lands for species conservation.

Subsection (b) clarifies that takes of migratory birds by the Armed
Forces in connection with military readiness activities are permitted by
Congress under the Migratory Bird Treaty Act.  The Department of Defense
does not intentionally take migratory birds during its military
readiness activities, but in some situations some harm is foreseeable
despite mitigation.  This section makes it clear that the Migratory Bird
Treaty Act permits such military readiness activities.  This provision
requires the Department to minimize taking of migratory birds to the
extent practical and necessary without diminishment of military training
or other capabilities, as determined by the Department.  In addition,
the Department of Defense remains subject to the same permitting
requirements as any governmental entity for takes of migratory birds
with respect to activities other than military readiness activities.

Subsection (c) clarifies the definition of "harassment" under the Marine
Mammal Protection Act as it applies to military readiness activities. 
To be considered "harassment," an action must injure or have the
significant potential to injure a marine mammal; disturb or likely
disturb a marine mammal, causing a disruption of natural, behavioral
patterns to the point of abandonment or significant alternation; or be
directed toward a specific individual, group, or stock of marine
mammals, causing a disruption of natural, behavioral patterns.

Section 2018.  Conformity with State Implementation Plans for air quality.

This section clarifies the application of the conformity provisions of
the Clean Air Act to make them more cooperative and not prohibitory when
an activity is undertaken.  The section maintains the Department's
obligation to conform its military readiness activities to applicable
State Implementation Plans but will give the Department of Defense three
years to demonstrate conformity.  Under the requirements of current law,
it is becoming increasingly difficult to base military aircraft near
developed areas.

Section 2019.  Range management and restoration.

Subsection (a) defines the circumstances in which explosives, unexploded
ordnance, munitions, munitions fragments, or constituents thereof are
included in the definition of "solid waste" under the Solid Waste
Disposal Act, and excludes explosives, munitions, munitions fragments,
or constituents thereof from the definition of "solid waste" under the
Act when such items are deposited on an operational military range
incidental to normal use.  Explosives, munitions, or munitions fragments
that are removed from a range for reasons other than disposal, such as
fragments removed for testing to determine weapon function, are
similarly excluded.  This provision clarifies and confirms the
Environmental Protection Agency's (EPA) Military Munitions Rule.

Subsection (b) provides that the presence of explosives, unexploded
ordnance, munitions, munitions fragments, or constituents thereof off an
operational range, or the migration off an operational range of such
items, constitutes a "release" under the Comprehensive Environmental
Restoration, Compensation, and Liability Act (CERCLA), and excludes from
the definition of "release" under the Act the presence of explosives,
munitions, munitions fragments, or the constituents thereof that have
been deposited incidental to normal use on a military range.  The
provision explicitly preserves the President's authority to address an
imminent and substantial endangerment to the public health, welfare, or
the environment under section 106(a) of CERCLA, and the Department's
authority to protect the environment, safety, and health on operational ranges.

The effect of these two provisions is to establish the governing
authorities under which the Department of Defense will manage its
operational ranges, including the cleanup thereof.  Explosives,
munitions, munition fragments, or their constituents that land on and
remain on an operational range, or land off range but are promptly
rendered safe or retrieved, will be regulated exclusively under the
Military Munitions Rule promulgated by EPA.  Those that migrate off the
range will be addressed under CERCLA.  If, however, the Department of
Defense does not address explosives, munitions, munition fragments, or
their constituents that migrate off range under CERCLA, States may
assert Resource Conservation and Recovery Act authority over them.

Section 2020.  Agreements with private organizations to address
encroachment and other	 constraints on military training, testing, and operations.

This provision authorizes the Military Departments to enter into
agreements with private conservation organizations concerning lands in
the vicinity of military installations to limit incompatible uses or
preserve habitat so as to eliminate or relieve environmental
restrictions on the neighboring installations that could interfere with
their military activities.  Such agreements can provide for the private
organizations to acquire, on a cost-shared basis, interests in such properties.

Such partnerships with private conservation organizations provide the
Department with a cost-effective way to protect both military readiness
and the environment.

Section 2021.  Conveyance of surplus real property for natural resource
conservation purposes.

This provision authorizes the Military Departments to convey their
surplus real property with natural resource value to state and local
governments or nonprofit conservation organizations.  It requires the
grantee to maintain the property for conservation purposes in
perpetuity.  This authority would be applicable to property that has
become surplus at both closing and operating installations.

-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918
<lsiegel@cpeo.org>
http://www.cpeo.org

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