[CPEO-MEF] Readiness and Range Preservation Initiative - #1 Legislative Language

[Lenny Siegel <lsiegel@cpeo.org>]

Below is the legislative language that the Defense Department has
submitted to Congress to deal with "encroachment." Earlier versions that
we and others circulated were preliminary, inaccurate, or incomplete.
This is the final Administration package.

I am also posting, as separate messages, the official Department of
Defense sectional analysis of the language and talking point.

I have converted the document to text for distribution via the
listserver. I hope Monday (April 22, 2002) to make the formatted
documents available on the publications page of the CPEO web site.

Lenny

***

TITLE XII - READINESS AND RANGE PRESERVATION INITIATIVE

SEC. 1201.  READINESS AND RANGE PRESERVATION INITIATIVE.

(a) In General. - Title 10, United States Code, is amended by inserting
after chapter 101 the following new chapter:

"CHAPTER 101A - READINESS AND RANGE PRESERVATION

"Sec.

"2015     Purpose of this chapter.

"2016.     Definitions.

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

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

"2019.     Range management and restoration.

"2020.     Agreements with private organizations to address encroachment
and other constraints on military

training, testing, and operations.

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

"§ 2015.  Purpose of this chapter

"The purpose of this chapter is to - 

"(1) protect the lives and well-being of citizens of the United States
and preserve their freedoms, economic prosperity, and environmental
heritage by ensuring military readiness;

"(2) ensure military readiness by addressing problems created by
encroachment on military readiness activities and lands, marine areas,
and airspace reserved, withdrawn, or designated for a military use;

"(3) reaffirm the principle that such lands, marine areas, and airspace
exist to ensure military preparedness;

"(4) shield military readiness activities and lands, marine areas, and
airspace reserved, withdrawn, or designated for a military use,
including land, sea, and air training and operating areas, from
encroachment, while ensuring that the Department of Defense fulfills its
environmental stewardship responsibilities;

"(5) manage such lands, marine areas, and airspace for other purposes to
the extent the non-military purpose does not reduce capability to
support military readiness activities;

"(6) re-establish the appropriate balance between military readiness and
environmental stewardship; and

"(7) establish a framework to ensure long-term sustainability of
military ranges.

"§ 2016.  Definitions.

"For purposes of this chapter:

"(1) The term 'military readiness activities' includes all training and
operations that relate to combat, and the adequate and realistic testing
of military equipment, vehicles, weapons, and sensors for proper
operation and suitability for combat use.  The term does not include the
routine operation of installation operating support functions, such as
administrative offices, military exchanges, commissaries, water
treatment facilities, storage, schools, housing, motor pools, laundries,
morale, welfare and recreation activities, shops, and mess halls, nor
the operation of industrial activities, or the construction or
demolition of such facilities.

"(2) The terms 'combat' or 'combat use' include all forms of armed
conflict and operational employment as well as those support functions
necessary for armed conflict and operational employment, including
transportation of personnel, weapons, supplies, ammunition and other
military material to the vicinity of actual or potential armed conflict;
intelligence gathering in support of actual or potential armed conflict;
command of and communications between military units; and similar
activities necessary for the successful prosecution of armed conflict,
whether or not conducted at the scene of actual conflict.

"(3) The term 'the Department' means the Department of Defense as
defined in section 101(a)(6) of this title and the Coast Guard when it
is not operating as a service in the Department of the Navy.

"§ 2017.  Military readiness and the conservation of protected species

"(a) Critical Habitat for Threatened and Endangered Species. - (1) The
completion of an Integrated Natural Resources Management Plan, pursuant
to the Sikes Act Improvement Act (16 U.S.C. 670a), for lands or other
geographical areas owned or controlled by the Department, or designated
for its use, that addresses endangered or threatened species and their
habitat, provides the 'special management considerations or protection'
required under the Endangered Species Act (16 U.S.C. 1532(5)(A)) and
precludes designation of critical habitat for any such land or
geographical areas under section 4 of the Endangered Species Act (16
U.S.C. 1533).

"(2) This subsection does not remove the requirement for agency
consultation under section 7(a)(2) of the Endangered Species Act (16
U.S.C. 1536(a)(2)).

"(b) Migratory Birds. -  Recognizing the critical importance of military
readiness activities to the United States and the efforts taken by the
Department to avoid adverse impacts on migratory birds, military
readiness activities of the Department are hereby authorized under the
Migratory Bird Treaty Act (16 U.S.C. 703 et seq.) without further action
by the Secretary of the Interior; provided, that the Department shall
minimize taking of migratory birds to the extent practical and necessary
to further the purposes of the Act without diminishment of military
training or other capabilities, as determined by the Department.

"(c) Marine Mammals. - For purposes of the Marine Mammal Protection Act
of 1972 (16 U.S.C. 1361 et seq.) harassment from military readiness
activities occurs only when those activities - 

"(1) injure or have the significant potential to injure a marine mammal
or marine mammal stock in the wild; 

"(2) disturb or are likely to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of natural behavior 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; or

"(3) are directed toward a specific individual, group, or stock of
marine mammals in the wild that is likely to disturb the specific
individual, group, or stock of marine mammals by disrupting behavior,
including but not limited to migration, surfacing, nursing, breeding,
feeding or sheltering.

"§ 2018.  Conformity with State Implementation Plans for air quality

"(a) Conformity with Clean Air Act. - In all cases in which the
requirements of section 176(c) of the Clean Air Act would have applied
to proposed military readiness activities, the Department shall not be
prohibited from engaging in such military readiness activities, but
shall - 

"(1) estimate for all criteria pollutants for which the area is
designated 'nonattainment' or 'maintenance' the quantity of emissions
that are caused by the military readiness activities;

"(2) notify the state air quality planning agency for the affected area
of such emission estimates prior to engaging in proposed military
readiness activities; and

"(3) ensure that military readiness activities conform with the
requirements of section 176(c) within three years of the date new
activities begin.

"(b) EPA Approval. - Notwithstanding any other provisions of law, an
implementation plan or plan revision required under the Clean Air Act
shall be approved by the Administrator of the Environmental Protection
Agency if - 

"(1) such plan or revision meets all the requirements applicable to it
under the Clean Air Act other than a requirement that such plan or
revision demonstrate attainment and maintenance of the relevant national
ambient air quality standards by the attainment date specified under the
applicable provision of the Act, or in a regulation promulgated under
such provision; and

"(2) the submitting State established to the satisfaction of the
Administrator that the implementation plan of such State would be
adequate to attain and maintain the relevant national ambient air
quality standards by the attainment date specified under the applicable
provision of the Act, or in a regulation promulgated under such
provision, but for emissions emanating from military readiness
activities not otherwise meeting section 176(c) of the Act pursuant to
paragraph (a) of this section.

"(c) Effect on State Compliance with Ozone Standards. - Notwithstanding
any other provisions of law, any state that establishes to the
satisfaction of the Administrator that, with respect to an ozone
nonattainment area in such State, such State would have attained the
national ambient air quality standard for ozone by the applicable
attainment date, but for emissions emanating from military readiness
activities not otherwise meeting section 176(c) of the Act pursuant to
paragraph (a) of this section, shall not be subject to the provisions of
section 182(a)(2) or (5) or section 185 of the Act.

"(d) Effect on State Compliance with Carbon Monoxide Standards. - 
Notwithstanding any other provision of law, any State that establishes
to the satisfaction of the Administrator, with respect to a carbon
monoxide nonattainment area in such State, that such State has attained
the national ambient air quality standard for carbon monoxide by the
applicable attainment date, but for emissions emanating from military
readiness activities not otherwise meeting section 176(c) of the Act
pursuant to paragraph (a) of this section, shall not be subject to the
provisions of section 186(b)(2) of the Act.

"(e) Effect on State Compliance with PM-10 Standards. - Notwithstanding
any other provisions of law, any State that establishes to the
satisfaction of the Administrator that, with respect to a PM-10
nonattainment area in such State, such State would have attained the
national ambient air quality standard for PM-10 by the applicable
attainment date, but for emission emanating from military readiness
activities not otherwise meeting section 176(c) of the Act pursuant to
paragraph (a) of this section shall not be subject to the provisions of
section 188(b)(2) of the Act.

"Sec. 2019.  Range management and restoration

"(a) Definition of Solid Waste. - (1)(A) The term 'solid waste,' as used
in the Solid Waste Disposal Act, as amended (42 U.S.C. 6901 et seq.),
includes explosives, unexploded ordnance, munitions, munition fragments,
or constituents thereof that - 

"(i) are or have been deposited, incident to their normal and expected
use, on an operational range, and - 

"(I) are removed from the operational range for reclamation, treatment,
disposal, treatment prior to disposal, or storage prior to or in lieu of
reclamation, treatment, disposal, or treatment prior to disposal;

"(II) are recovered, collected, and then disposed of by burial or
landfilling; or

"(III) migrate off an operational range and are not addressed under the
Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended (42 U.S.C. 9601 et seq.); or

"(ii) are deposited, incident to their normal and expected use, off an
operational range, and are not promptly rendered safe or retrieved.

"(B) The explosives, unexploded ordnance, munitions, munitions
fragments, or constituents thereof defined as solid waste in subsection
(a)(1)(A) shall be subject to the provisions of the Solid Waste Disposal
Act, as amended, including but not limited to sections 7002 and 7003,
where applicable.

"(2) Except as set out in subsection (1), the term 'solid waste,' as
used in the Solid Waste Disposal Act, as amended, does not include
explosives, unexploded ordnance, munitions, munitions fragments, or
constituents thereof that - 

" (A) are used in training military personnel or explosives and
munitions emergency response specialists (including training in proper
destruction of unused propellant or other munitions);

"(B) are used in research, development, testing, and evaluation of
military munitions, weapons, or weapon systems;

"(C) are or have been deposited, incident to their normal and expected
use, on an operational range, except as provided in subsection (a)(1)(A);

"(D) are deposited, incident to their normal and expected use, off an
operational range, and are promptly rendered safe or retrieved; or

"(E) are recovered, collected, and destroyed on-range during range
clearance activities at operational ranges, but not including the
on-range burial of unexploded ordnance and contaminants when the burial
is not a result of product use.

"(b)(1) Definition of Release. - (1) The term 'release,' as used in the
Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended (42 U.S.C. 9601 et seq.), includes the deposit off an
operational range, or the migration off an operational range, of any
explosives, unexploded ordnance, munitions, munitions fragments, or
constituents thereof.

"(2) The term 'release,' as used in the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C.
9601 et seq.), does not include the deposit or presence on an
operational range of any explosives, unexploded ordnance, munitions,
munitions fragments, or constituents thereof that are or have been
deposited thereon incident to their normal and expected use.

"(3)(A) Notwithstanding the provisions of paragraph (2), nothing in this
section affects the authority of the President under section 106(a) of
the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended (42 U.S.C. 9606(a)) to address an imminent and
substantial endangerment to the public health or welfare or the
environment, including orders to test and monitor.

"(B) Nothing in this section affects the ability of a State or other
person to request that the President exercise such authority under
section 106(a) of such Act to address an imminent and substantial
endangerment to the public health or welfare or the environment.

"(4) Nothing in this section affects the authority of the Department to
protect the environment, safety, and health on operational ranges.

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

"(a) Agreements. - The Secretary of a military department is authorized
to enter into agreements with any private organization that has the
conservation, restoration, or preservation of land and natural
resources, or a similar objective, as its stated principal
organizational purpose or goal.  The purpose of any agreement under this
section shall be to address the use or development of real property in
the vicinity of military installations in order either - 

"(1) to limit incompatible development or use of such property, or 

"(2) to preserve habitat so as to eliminate or relieve existing or
projected environmental restrictions, that otherwise may have the
potential to restrict, impede, or otherwise interfere with, directly or
indirectly, current or future military training, testing, or operations.
 Chapter 63 of title 31 shall not apply to agreements entered into under
this section.

"(b) Acquisition and Acceptance of Real Property. - An agreement under
this section - 

"(1) may provide for the private organization to acquire, on a
cost-shared basis, all right, title, and interest in real property, or
any lesser estate or interest; as shall be required to effectuate the
purposes of this section; and

"(2) with respect to any real property estate or interest so acquired,
shall provide, upon request at any time, for the private organization to
transfer to the United States an estate or interest in such real
property.  Such interest shall be limited to that interest necessary to
permit the United States to ensure that the property is used and managed
in a manner that meets the purposes of this section.  The Secretary
concerned shall determine what estate or interest is necessary. 
Notwithstanding any other provision of law, the military department is
authorized to accept such estate or interest in real property on behalf
of the United States.

"(c) Funding. - Funds appropriated for the operations and maintenance of
the Department of Defense or of any military department, including funds
appropriated to support the Legacy Resources Management Program, may be
made available to execute any agreements entered into under this
section.  For installations or facilities operated primarily with funds
appropriated for research, development, testing, and evaluation, those
funds may be used in lieu of funds appropriated for operations and maintenance

"(d) Additional Terms and Conditions. - The Secretary may require such
additional terms and conditions in the agreements authorized by this
section as the Secretary considers appropriate to protect the interests
of the United States.  Real property may not be acquired under this
subsection unless the owner of the property consents to the acquisition.
 The Secretary may accept appraisals or title documents prepared or
adopted by a non-Federal entity as satisfying the applicable
requirements of section 213 of the Uniform Relocation Act Amendments of
1987 (42 U.S.C. 4651) or the Act of September 1, 1970 (84 Stat. 835; 40
U.S.C. 255) where the Secretary finds the appraisals or title documents
substantially comply with Federal standards.

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

"(a) Authority to Convey. - The Secretary of a military department, in
his sole discretion, may convey surplus real property under its
jurisdiction that is suitable and desirable for conservation purposes to
any state or local government, or instrumentality thereof, or nonprofit
organization that exists for the primary purpose of conservation of
natural resources on real property.  This authority shall only apply to
surplus real property that the disposing agency has certified has been
made available for public benefit transfer, has been available for a
sufficient time to potential claimants and for which there is no pending
request for transfer to another federal agency or for conveyance to any
other qualified recipient for public benefit transfer, under the real
property disposal processes and authorities established pursuant to the
Federal Property and Administrative Services Act of 1949 (40 U.S.C. 471,
et seq.).  The consideration for such conveyance shall be determined by
the Secretary pursuant to subsection (e).

"(b) Deed Requirements. - The deed of conveyance of any surplus real
property disposed of under this subsection - 

"(1) shall provide that all such property shall be used and maintained
for the conservation of natural resources in perpetuity, and that in the
event that such property ceases to be used or maintained for such
purpose during such period, all or any portion of such property shall in
its then existing condition, at the option of the United States, revert
to the United States;

"(2) may permit the grantee to convey the property to another eligible
entity; provided the Secretary of the military department approves the
conveyance in writing and the property shall be subject to the same
covenants and terms and conditions as provided in the deed from the
United States;

"(3) may permit incidental revenue-producing activities that are
compatible with the use of the property for conservation purposes;

"(4) may contain such additional terms, reservation, restrictions and
conditions as may be determined by the Secretary to safeguard the
interests of the United States.

"(c) Release of Covenants. - The Secretary, with the concurrence of the
Secretary of Interior, may grant a release from the covenant described
in subsection (b) on the condition that the grantee pay the fair market
value, as determined by the Secretary, of the property at the time of
the release of the covenant.  The Secretary may reduce the amount owed
for release of such covenant taking into account the value of the
natural resource conservation benefit that has accrued during the period
of the conveyance and which benefit was not previously taken into
account in (a).

"(d) Limitations. - Such conveyance shall not be used in settlement of
any litigation, dispute, or claim against the United States, nor as a
condition of allowing any defense activity under any Federal, State, or
local permitting or review process.  The Secretary may use such
conveyances, with the restrictions set forth in subsection (b), to
establish mitigation banks outside the context of being a condition
imposed by any Federal, State, or local regulatory body for granting a
permit, completion of review, or otherwise granting permission for a
proposed military action other than establishment of a mitigation bank.

"(e) Consideration. - In fixing the consideration for the property or in
determining the amount of any reduction of the fair market value owed
for the release of the covenant under subsection (c), the Secretary of
the military department shall take into consideration any benefit that
has accrued or may accrue to the United States from the use of such
property for the conservation of natural resources.

"(f) Real Property Declared Surplus as a Result of a Base Closure Law. -
The Secretary concerned may not dispose of any real property declared
surplus as a result of a base closure law under this section in a manner
inconsistent with the requirements and preferences established under a
base closure law.

"(g) Definitions. - For purposes of this section:

"(1) The term 'States' includes the District of Columbia, the
Commonwealth of Puerto Rico, the Commonwealth of the Northern Marianas
and the territories and possessions of the United States.

"(2) The term 'base closure law' means the Defense Authorization
Amendments and Base Closure and Realignment Act of 1988 (Public Law
100-526), the Defense Base Closure and Realignment Act of 1990 (Public
Law 101-510), or similar base closure authority.".

(b) Conforming Amendments. - (1) Agreements with Nonprofit Conservation
Natural Resource Organizations. - Section 2701(d) of such title 10 is
amended - 

(A) in paragraph (1), by inserting "or nonprofit conservation
organization" after "any Indian tribe"; and

(B) in paragraph (3), by adding at the end the following sentence:

"The term 'conservation organization' as used in this section means
non-governmental nonprofit organizations that exist for the primary
purpose of conserving open space or natural resources.".

(2) Acceptance of Funds to Cover Administrative Expenses. - Section
2695(b) of such title 10 is amended by adding at the end the following
new paragraph:

"(4) The conveyance of real property under section 2669a of this title.".

(c) Clerical Amendment. - The table of chapters at the beginning of such
title 10 is amended by inserting after the item relating to chapter 101
the following new item:

"101a.   Readiness and Range Preservation................2015".


-- 


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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