H.R. 65 — Armed Forces Endangered Species Exemption Act

This section expands exclusions from critical habitat designation under the Endangered Species Act (ESA) for Department of Defense (DOD) lands. (As background: ESA requires concurrent designation of critical habitat with species listings to protect physical or biological features essential to species recovery; federal agencies must consult with the U.S. Fish and Wildlife Service or National Marine Fisheries Service under ESA section 7(a)(2) to avoid adverse modification.) Specifically, it prohibits such designation for (1) any military installation or State-owned National Guard installation (or portion thereof), as defined in section 100 of the Sikes Act (16 U.S.C. 670)—previously limited to DOD-owned, controlled, or designated lands subject to an integrated natural resources management plan (INRMP) under section 101 of the Sikes Act (16 U.S.C. 670a); or (2) any other DOD-designated lands, waters, or geographical areas (including those used by DOD contractors) if the Secretary of Defense certifies in writing to the Secretary of the Interior that they are necessary for military training, weapons testing, or other appropriate reasons. The section further exempts the Secretary of Defense from ESA section 7(a)(2) consultation requirements for agency actions in excluded areas, regardless of INRMP status. (Thus, DOD activities in these areas face no ESA critical habitat restrictions or consultation mandates.)

This section establishes exclusions from the prohibitions of section 9 of the Endangered Species Act (ESA)—which generally prohibit "take" (i.e., killing, harming, harassing, or other impacts) of endangered or threatened species—for national defense-related operations conducted by military personnel. The exclusions apply to (1) any taking, importation, or exportation of such species; (2) damaging, destroying, removing, cutting, digging up, or otherwise impacting such species; and (3) injury to or mortality of such species resulting from, but not the purpose of, the operation, regardless of location (including military installations). It defines national defense-related operations as research, development, testing, and evaluation of munitions/weapons; training in their use; general training and preparedness; or any action the Secretary of Defense deems necessary for Department of Defense missions; and military personnel as Armed Forces members, Department of Defense civilian employees or contractors (including subcontractors), or personnel from other agencies supporting overseas Department of Defense missions.