Composite Training Unit Exercises and Joint Task ... - Govsupport.us

COMPTUEX/JTFEX EA/OEA Final Chapter 3USFWS) concerning the potential effects of their actions on any species listed under the ESA. Thepurpose of consultation is to avoid, minimize, or mitigate the impacts of their activities on listed species.The National Defense Authorization Act (NDAA) of 2004 (H.R. 1588) addresses the designation ofcritical habitat on DoD lands that are subject to an INRMP, while reaffirming the obligation of DoD tocomply with Section 9 of the ESA to prevent extinction and taking of endangered and threatened species.The Marine Mammal Protection Act (MMPA) of 1972 established, with limited exceptions, a moratoriumon the “taking” of marine mammals in waters or on lands under US jurisdiction. The act further regulates“takes” of marine mammals in the global commons (i.e., the high seas) by vessels or persons under USjurisdiction. The term “take,” as defined in Section 3 (16 USC 1362) of the MMPA, means “to harass,hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.” “Harassment” wasfurther defined in the 1994 amendments to the MMPA, which provided two levels of “harassment,” LevelA (potential injury) and Level B (potential disturbance).The National Defense Authorization Act (NDAA) of Fiscal Year (FY) 2004 (Public Law [PL] 108-136)amended the definition of harassment as applied to military readiness activities or scientific researchactivities conducted by or on behalf of the Federal government, consistent with Section 104(c)(3) [16USC 1374 (c)(3)]. The FY 2004 NDAA adopted the definition of “military readiness activity” as set forthin the FY 2003 NDAA (PL 107-314). COMPTUEX/JTFEX constitute military readiness activities as thatterm is defined in PL 107-314 because training activities constitute “training and operations of the ArmedForces that relate to combat” and constitute “adequate and realistic testing of military equipment,vehicles, weapons, and sensors for proper operation and suitability for combat use.” For militaryreadiness activities, the relevant definition of harassment is any act that: Injuries or has the significant potential to injure a marine mammal or marine mammal stockin the wild (“Level A harassment”) Disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild bycausing disruption of natural behavioral patterns including, but not limited to, migration,surfacing, nursing, breeding, feeding, or sheltering to a point where such behavioral patternsare abandoned or significantly altered (“Level B harassment”) [16 USC 1362 (18)(B)(i)(ii)].Section 101(a)(5) of the MMPA directs the Secretary of the Department of Commerce to allow, uponrequest, the incidental (but not intentional) taking of marine mammals by US citizens who engage in aspecified activity (exclusive of commercial fishing), if certain findings are made and regulations areissued. Permission will be granted by the Secretary for the incidental take of marine mammals if thetaking will have a negligible impact on the species or stock and will not have an unmitigable adverseimpact on the availability of such species or stock for taking for subsistence uses.Title 16 United States Code, Section 1371(f) of the MMPA provides that [t]he Secretary of Defense, afterconferring with the Secretary of Commerce, the Secretary of the Interior or both as appropriate, mayexempt any action or category of actions undertaken by the Department of Defense or its componentsfrom compliance with any requirement of this chapter, if the Secretary determines that it is necessary fornational defense. (Section 1371 (f) (1)). An exemption is effective for the period specified by theSecretary of Defense not to exceed two years. (Section 1371 (f) (2)).The Coastal Zone Management Act (CZMA) of 1972 (16 U.S.C. § 1451) encourages states to preserve,protect, develop, and, where possible, restore or enhance valuable natural coastal resources such aswetlands, floodplains, estuaries, beaches, dunes, barrier islands, and coral reefs, as well as the fish andwildlife using those habitats. Participation by states is voluntary. Once a state’s program is approved byNOAA, the activities of Federal agencies are required to be consistent to the maximum extent practicableFebruary 2007 3-8