physiology of marine mammals".., it is likely that detectable reactions, however minor and brief, will be documented at lower and lower received levels of humanmade sound". NRC (2000) concludes that it "does not make sense to regulate minor changes in behavior having no adverse impact; rather, regulations must focus on significant disruption of behaviors critical to survival and reproduction". The current NRC report (2003) clearly states that the previous recommendations are still relevant although unfulfilled and require attention. All three NRC committees are therefore in agreement that the definition of harassment should be modified to focus on the biologically significant injury and disruption of behaviors critical to survival and reproduction, i.e., on population level and therefore biologically significant impacts rather than individually detectable changes.

Of course sound operates at the individual level, but the repeatedly stated, fundamental concern is for the well-being of populations. All data to date have been gathered on individual or local populations. As the NRC report on Ocean Noise and Marine Mammals (2003) emphasized, our major concern should be for population level impacts. This is consistent with the intent but not all implementations of the MMPA.

The original MMPA noted a concern for impact on marine mammal populations. Yet, much of the debate and contention that we see today over the issues surrounding sound in the oceans derives from and focuses on relatively few impacted individuals. High profile events, like the dramatic strandings in the Bahamas and Canaries, are being construed as virtually global, both in terms of species effects and sound source types. Precaution is appropriate; however, currently, extraordinarily precautionary positions are holding sway in which very broad and scientifically unfounded extrapolations are being made. A Pyrrhic victory was recently won in a second case in which an experiment to test the audibility of sonars intended to detect and thereby protect whales from ship strikes was halted.

Realistically, because of the diversity of hearing characteristics among marine animals, it is virtually impossible to eliminate all acoustic impacts from any endeavor for all individuals, therefore the key issues that must be assessed are: 1) what combination of frequencies and sound pressure levels are proposed to fit each anthropogenic task; 2) what species are present in the area the device will ensonify at levels exceeding ambient; 3) what is the probable severity of any potential_impacts to the exposed animals from the combined frequency-intensity-temporal characteristics of the source. Above all, the important point is to know whether these factors produce any biologically significant impact to a species. In the most recent NRC report, a major recommendation was to structure research on marine mammals to allow predictions of population-level consequences. Individual effects are inputs to our data base, but the true metric to apply is biological significance.

H.R. 1835 proposes a new definition of harassment that includes the concepts "...(i) significant potential to injure a marine mammal or marine mammal stock in the wild;” “...(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, ...to a point where such behavioral patterns are abandoned or significantly altered", and "...(iii) any act that is directed toward a specific individual, group, or stock of marine mammals in the wild...". There are three chief concerns in this definition:

1. The appropriateness of the term "significant".

2. The appropriateness of the concept of abandonment and significant alteration of behaviours.

3. The appropriateness of the inclusion of acts directed towards individuals. The new definition represents an important move by including the concept of significance but a further modification is critical to comply with the concerns noted above.

"Biological significance" is a term of art which implies a species or population level concern deriving from impacts that are capable of altering the viability of the population. "Significance" per se is not a sufficiently rigorous term to provide a litmus test for harassment; the phrase loses its technical relevance and potency if the biological modifier is removed. Therefore it is important, if the intent and concerns expressed in the NRC reports are to be addressed and, equally important, to avoid repeating the hazard of a non-explicit criterion, that the phrase "biological significance" be employed in this amendment in lieu of simply "significant".

Similarly, abandonment or alteration of behaviourial patterns is a phrase without explicit scientific meaning that could be interpreted to mean individual effects. Just as with injury, biologically significant alterations are the appropriate focus for setting behaviourial harassment criteria.

The addition of sub-paragraph (iii), under Section 3 poses a significant hazard for marine mammal research. For a number of practical reasons, research efforts on

marine mammal hearing, acoustics and behaviour depend upon the ability to observe, test, and manipulate individual animals. Therefore, although the intention of this paragraph may not have been explicitly directed at marine mammal research, it has, as written, the potential to substantially negatively impact this field. Subparagraph (ii) of Section 3 implies individual animal protection within the phrase, "likely to disturb a marine mammal or marine mammal stock", but has the additional criterion of significance. Therefore, sub-paragraph (iii) is redundant and potentially damaging, and I strongly recommended its deletion.

Section 5: Incidental Takings

The concept of incidental takes is important and should be preserved. However, the inclusion of small numbers in existing MMPA Section 1371 (a)(5)D)(I) represents a serious hazard to all permit processes. Small numbers has in some reviews and court cases been interpreted literally and not as a percentage of population, which is the more scientifically valid perspective. The proposed removal of small numbers in H.R. 1835 provides relief from this problem and obviates a potential hazard of there being two tests for determining takes by harassment; i.e., small numbers as well as negligible impact. Consequently, I strongly support the stated amendments to this section.

Summary

This Committee's interest and foresight in considering whether the changes to ESA and MMPA requested to enhance military readiness also have significance for research and industry are greatly appreciated. The proposed amendments have substantial potential to improve permitting processes for all marine endeavors. Currently, we are losing sight of the need for balance and for perspective. This is a potentially hazardous position since, ironically, this type of over-interpretation is actually preventing research that could provide precisely the answers that are needed to protect and conserve marine species. In a sense, precaution, in the extreme, may lead us to stagnation, and worse, because it is a position founded on assumed rather than known effects, it may prevent us from determining the true sources of greatest potential harm.

For responsible stewardship of our oceans, it is imperative that we understand our impacts and that we proceed with a balanced and informed view. Risk assessment must be a part of that debate. There is undeniably some risk to some individuals from any underwater sound, but individual risk must be balanced by potential gain to the species. The addition of significant to the proposed revisions is a conceptual step forward worthy of consideration. I urge that the step be carried further to one of "biological significance" in order to provide a scientifically valid criterion for determination of harassment. It implies that our focus be shifted from the impossible goal of avoiding any possible individual impact to biologically significant, population level concerns. Such a shift, implemented with caution and judicious oversight, will not only reduce litigation, but also provide opportunities for education and understanding by the public of the appropriate scope for our concerns and of the critical need for research that will provide data to finally allow us to place clear and valid limits on sound use in our seas.

Mr. GILCHREST. Thank you very much, Dr. Ketten.

Mr. Kunich, welcome.

STATEMENT OF JOHN C. KUNICH, ASSOCIATE PROFESSOR OF LAW, ROGER WILLIAMS UNIVERSITY SCHOOL OF LAW

Mr. KUNICH. Thank you.

Mr. Chairman, members of the Committee, I thank you for this opportunity to testify. I am here speaking in my individual capacity and not as an official representative of my university.

As a professor of law at Roger Williams University School of Law, I have published several major law review articles dealing with the Endangered Species Act and the threats to biodiversity, and I wrote a book, “Ark of the Broken Covenant: Protecting the World's Biodiversity Hotspots", published this year by Praeger.

I served 20 years on active duty with the United States Air Force as a judge advocate prior to entering academia in 1999, and I specialized in these same areas in the Air Force as a JAG.

During the 1990's, I was the chief environmental law attorney for Air Force and the United States Space Command and NORAD, and I served as the chief of the environmental compliance and planning branch of the Headquarters Air force Environmental Law and Litigation Division.

During my two decades of military service, which included advising the warfighters during the first Gulf War, our intervention in Kosovo, and several major operations other than war, I never became aware of even one instance in which either the ESA or the MMPA posed an impediment to the military mission. The Air Force was able to comply with no harmful effect on military readiness, training, or, indeed, on the actual successful conduct of wartime operations. The military did not need to choose between environmental compliance and mission accomplishment.

I urge rejection of the proposal to substitute INRMPS for the critical habitat provisions under the ESA. The proposal would have the effect of rendering meaningless the most effective portion of the ESA. It would hollow out the core substantive protection of our most rigorous environmental statute and turn it into just one more procedural planning law.

The Supreme Court, in a series of cases, has recognized the intent of Congress to assign preeminent importance to preserving life under the ESA. And the reason is clear. There is no remedy for a species driven into extinction. Each of the 1.75 million species known to us today is one of a kind, the end product of millions of years of adaptations to specific environmental conditions. Extinction of any species is an irreversible, irremediable loss, different in kind from the losses sought to be prevented by all other environmental laws.

The world is now very likely in the midst of our sixth mass extinction. The five previous mass extinctions, during which up to 95 percent of all life quickly went out of existence, all took place before human beings came on the scene. We have an airtight alibi on the first five mass extinctions, but we are primarily responsible for this mass extinction. Through our destruction of enormous amounts of critical habitat, we have severely jeopardized at least 40 percent of all known species.

Species that are endemic to only a small geographical area tend to be narrowly adapted to conditions there, and there is a predictable mathematical relationship between habitat reduction and the numbers of species that can be sustainably supported.

My book, "Ark of the broken Covenant" focuses on the approximately 25 biodiversity hotspots, the 1.44 percent of Earth's landmass that contains all of the remaining habitats of over 133,000 identified higher plant species-that's 44 percent of the world's total-and 9,600 nonfish vertebrate species, 35 percent of the world's total. These species, and many others, are faced with imminent extinction on a scale the world has not seen since the extinction spasm that wiped out the dinosaurs. In fact, there may be millions of species we have never even identified, most of them crowded into these hot spots. Like the 40 percent plus of known

species, these millions of unknown species are largely endemic to the hot spots. They are found there and no where else on Earth. but their remaining habitat is shrinking at an alarming rate. They have already lost 88 percent of their primary vegetation and are likely, absent greatly increased conservation efforts, to lose much

more soon.

Is there among these species a cure for AIDS or SARS or some other threats that will not arise for centuries? We will never know if we allow the critical habitats to be destroyed and, along with them, an immense share of all life on Earth. The prudent decision is to bet on life.

Now is the worst possible time for new and wide-open exemptions to the critical habitat protections. A mass extinction is not time for weakening the few effective legal protections of biodiversity. The United States should be exercising global leadership in crafting stronger, more effective legal safeguards for our dwindling biodiversity. Instead, the proposed exemptions would do exactly the opposite.

Thank you for this opportunity to testify. With your permission, at this point I would like to submit for the hearing record my Hastings Law Journal article and my Georgetown International Environmental Law Review piece, and I would be happy to answer any questions you may have.

Thank you.

[The prepared statement of Mr. Kunich follows:]

Statement of John Charles Kunich, Associate Professor of Law,
Roger Williams University School of Law, Bristol, Rhode Island

Mr. Chairman, members of the Committee, thank you for this opportunity to testify. As a Professor of Law at Roger Williams University School of Law in Rhode Island, I specialize in Environmental, Natural Resources, and Biodiversity Law. I have published several major law review articles dealing with the Endangered Species Act and the threats to biodiversity, and I wrote a book "Ark of the Broken Covenant: Protecting the World's Biodiversity Hotspots" published in 2003 by Praeger Publishers.

Prior to entering academia in 1999, I served 20 years on active duty with the United States Air Force as a judge advocate, and I specialized in these same areas for the second half of my Air Force career. I was well suited to this specialty by virtue of my Bachelor of Science and Master of Science degrees in Biological Sciences, as well as my Juris Doctor degree from Harvard Law School and my Master of Laws degree in environmental law from George Washington University School of Law.

During the 1990's, I was the chief environmental law attorney for Air Force Space Command, United States Space Command, and the North American Aerospace Defense Command, and I served as the Chief of the Environmental Compliance and Planning Branch of the Headquarters Air Force Environmental Law and Litigation Division. I had the responsibilities of balancing the Air Force's mission requirements with our legal duties under all applicable Federal, state, and international environmental and natural resources laws.

During my two decades of military legal service, which included the first Gulf War, our intervention in Kosovo, and several major operations other than war, I never became aware of even one instance in which either the Endangered Species Act or the Marine Mammal Protection Act posed an impediment to the military mission. The Air Force was able to comply with the consultation requirements under Section 7 of the Endangered Species Act, as well as the takings provisions under Section 9, with no harmful effect on military readiness, training, or, indeed, on the actual successful conduct of wartime operations. The Air Force found a way to comply with all the mandates arising out of designated critical habitat for listed threatened and endangered species, as well as those responsibilities directly related to the listed species themselves. The military did not need to choose between environ

mental compliance and mission accomplishment. The two were not mutually exclusive in any respect.

I urge rejection of the proposal to substitute completion of an Integrated Natural Resources Management Plan in lieu of the critical habitat provisions under the Endangered Species Act. The proposal would have the effect of rendering meaningless the most effective portion of the Endangered Species Act. It would hollow out the core substantive protection of our most rigorous environmental statute and turn it into just one more procedural planning law.

Integrated Natural Resources Management Plans are just that, plans. They often may be prepared by well-intentioned, dedicated professionals. They may be crafted in consultation with Fish and Wildlife Service or National Marine Fisheries Service. At their best, they may take into account a wide range of relevant issues. But they are still plans, not commitments. They are subject to the whims and preferences of the people writing them. There is no guarantee that they will actually be funded and implemented. And they have much less rigor and enforceability than substantive statutory mandates such as the critical habitat provisions of the Endangered Species Act.

The United States already has enough procedural environmental laws to give us a very good idea of their advantages and limitations. We have the National Environmental Policy Act, the Federal Land Policy Management Act, the National Forest Management Act, and the Emergency Planning and Community Right to Know Act, to name a few. These statutes serve the useful functions of requiring Federal agencies to jump through specified procedural hoops, to receive comments from concerned citizens as part of their planning, and to take environmental considerations into account in their decision making. But the United States Supreme Court has consistently held that these procedural statutes do not mandate correct decisions, or the most environmentally favorable plans-only that the correct procedures be followed. Plans made under these acts are, to a very great extent, entrusted to the discretion of the planners. As the Court has said, only uninformed, not unwise, decisions are prohibited. The planners are not required to accept the advice they receive from other agencies or concerned citizens, only to collect it and report it, perhaps with some comment for the record of decision. And the plans and decisions made under these procedural statutes are subjected only to the most deferential standard of judicial review when challenged in court. As the Chevron case and its many progeny have held, so long as the Federal agency plan or decision is not "arbitrary and capricious, or an abuse of discretion," it will not be overturned by a court.

În stark contrast to these planning statutes, the Endangered Species Act has been held to mean exactly what its exacting substantive language says it means. The Supreme Court, in a series of cases beginning with TVA v. Hill, 437 U.S. 153 (1978), has recognized the intent of Congress to assign preeminent importance to preserving life under the Endangered Species Act. Even when it costs hundreds of millions of dollars, or halts a massive Federal project, the value of preserving threatened and endangered species is greater. And one reason why is that there is no remedy for a species driven into extinction. No amount of money, no mitigation measures, can ever restore a species once it becomes extinct. Each of the 1.75 million species on Earth known to us today is one of a kind, the end product of millions of years of adaptations to specific environmental conditions. Each species is absolutely unique, and absolutely irreplaceable. Extinction of any species is an irreversible, irremediable loss, different in kind and not merely in degree from the kind of losses sought to be prevented by all other environmental laws, from the Clean Air Act to the Resource Conservation and Recovery Act.

The Endangered Species Act defines critical habitat in part as "the specific areas within the geographical area occupied by the species, at the time it is listed...on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection...." The proposal seeks to codify Integrated Natural Resources Management Plans as, by definition, satisfying the "special management considerations or protection" clause of this provision. But this confuses the threshold definition of critical habitat with the legal effect of critical habitat designation. The Endangered Species Act requires substantive steps to be taken with regard to critical habitat once it is designated, including the avoidance of any harmful alteration of that habitat. It does not merely require "special management considerations or protection," to be left to the discretion of any departmental secretary in his or her management plans. This is a fundamental flaw in the proposed exemption. It is, in part, the need for "special management considerations or protection" that is a prerequisite for an area to be designated as critical habitat. This is very different from the legal effects of such designation once it takes place.