Military Training
Compliance with Environmental Laws Affects Some Training Activities, but DOD Has Not Made a Sound Business Case for Additional Environmental Exemptions Gao ID: GAO-08-407 March 7, 2008A fundamental principle of military readiness is that the military must train as it intends to fight, and military training ranges allow the Department of Defense (DOD) to accomplish this goal. According to DOD officials, heightened focus on the application of environmental statutes has affected the use of its training areas. Since 2003, DOD has obtained exemptions from three environmental laws and has sought exemptions from three others. This report discusses the impact, if any, of (1) environmental laws on DOD's training activities and military readiness, (2) DOD's use of statutory exemptions from environmental laws on training activities, (3) DOD's use of statutory exemptions on the environment, and (4) the extent to which DOD has demonstrated the need for additional exemptions. To address these objectives, GAO visited 17 training locations; analyzed environmental impact and readiness reports; and met with officials at service headquarters, the Office of the Secretary of Defense, federal regulatory agencies, and nongovernmental environmental groups.
Compliance with environmental laws has caused some training activities to be cancelled, postponed, or modified, and DOD has used adjustments to training events, referred to as "workarounds," to accomplish some training objectives while meeting environmental requirements. Some DOD trainers instruct units to pretend restricted training areas are holy grounds, mine fields, or other restricted areas in theater, simulating the need to avoid specific areas and locations when deployed. GAO's review of readiness data for active duty combat units did not confirm that compliance with environmental laws hampers overall military readiness. Since 2006, the Navy has twice invoked the Marine Mammal Protection Act exemption to continue using mid-frequency active sonar in training exercises that would otherwise have been prevented. DOD's exemption from the Migratory Bird Treaty Act, authorizing the taking of migratory birds, eliminated the possibility of having to delay or cancel military training exercises, such as Navy live-fire training at the Farallon de Medinilla Target Range. The exemption to the Endangered Species Act, which precludes critical habitat designation on DOD lands, enables DOD to avoid potential training delays by providing greater autonomy in managing its training lands. On the basis of meetings with officials within and outside DOD and visits to 17 training ranges, GAO found no instances where DOD's use of exemptions from the Endangered Species Act or Migratory Bird Treaty Act has adversely affected the environment, but the impact of the Marine Mammal Protection Act exemption has not yet been determined. The services employ a variety of measures and conservation activities to mitigate the effects of training activities on the natural resources located on DOD lands. Additionally, regulatory officials GAO spoke to said DOD has done an effective job protecting and preserving endangered species and habitats on its installations. However, some nongovernmental organizations have expressed concern that the Endangered Species Act exemption allowing DOD to avoid critical habitat designations may weaken oversight from the U.S. Fish and Wildlife Service. DOD has not presented a sound business case demonstrating the need for the proposed exemptions from the Clean Air Act, the Resource Conservation and Recovery Act, and the Comprehensive Environmental Response, Compensation, and Liability Act. Best practices and prior GAO work recommend that agencies develop a business case that includes, among other things, expected benefits, costs, and risks associated with a proposal's implementation. However, DOD has not provided any specific examples showing that training and readiness have been hampered by requirements of these laws. Meanwhile some federal, state, and nongovernmental organizations have expressed concern that the proposed exemptions, if granted, could harm the environment. Until DOD develops a business case demonstrating the need for these exemptions, Congress will lack a sound basis for assessing whether to enact requested exemptions.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-08-407, Military Training: Compliance with Environmental Laws Affects Some Training Activities, but DOD Has Not Made a Sound Business Case for Additional Environmental Exemptions
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Some Training Activities, but DOD Has Not Made a Sound Business Case
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Report to Congressional Committees:
United States Government Accountability Office:
GAO:
March 2008:
Military Training:
Compliance with Environmental Laws Affects Some Training Activities,
but DOD Has Not Made a Sound Business Case for Additional Environmental
Exemptions:
GAO-08-407:
GAO Highlights:
Highlights of GAO-08-407, a report to congressional committees.
Why GAO Did This Study:
A fundamental principle of military readiness is that the military must
train as it intends to fight, and military training ranges allow the
Department of Defense (DOD) to accomplish this goal. According to DOD
officials, heightened focus on the application of environmental
statutes has affected the use of its training areas. Since 2003, DOD
has obtained exemptions from three environmental laws and has sought
exemptions from three others. This report discusses the impact, if any,
of (1) environmental laws on DOD‘s training activities and military
readiness, (2) DOD‘s use of statutory exemptions from environmental
laws on training activities, (3) DOD‘s use of statutory exemptions on
the environment, and (4) the extent to which DOD has demonstrated the
need for additional exemptions.
To address these objectives, GAO visited 17 training locations;
analyzed environmental impact and readiness reports; and met with
officials at service headquarters, the Office of the Secretary of
Defense, federal regulatory agencies, and nongovernmental environmental
groups.
What GAO Found:
Compliance with environmental laws has caused some training activities
to be canceled, postponed, or modified, and DOD has used adjustments to
training events, referred to as ’workarounds,“ to accomplish some
training objectives while meeting environmental requirements. Some DOD
trainers instruct units to pretend restricted training areas are holy
grounds, mine fields, or other restricted areas in theater, simulating
the need to avoid specific areas and locations when deployed. GAO‘s
review of readiness data for active duty combat units did not confirm
that compliance with environmental laws hampers overall military
readiness.
Since 2006, the Navy has twice invoked the Marine Mammal Protection Act
exemption to continue using mid-frequency active sonar in training
exercises that would otherwise have been prevented. DOD‘s exemption
from the Migratory Bird Treaty Act, authorizing the taking of migratory
birds, eliminated the possibility of having to delay or cancel military
training exercises, such as Navy live-fire training at the Farallon de
Medinilla Target Range. The exemption to the Endangered Species Act,
which precludes critical habitat designation on DOD lands, enables DOD
to avoid potential training delays by providing greater autonomy in
managing its training lands.
On the basis of meetings with officials within and outside DOD and
visits to 17 training ranges, GAO found no instances where DOD‘s use of
exemptions from the Endangered Species Act or Migratory Bird Treaty Act
has adversely affected the environment, but the impact of the Marine
Mammal Protection Act exemption has not yet been determined. The
services employ a variety of measures and conservation activities to
mitigate the effects of training activities on the natural resources
located on DOD lands. Additionally, regulatory officials GAO spoke to
said DOD has done an effective job protecting and preserving endangered
species and habitats on its installations. However, some
nongovernmental organizations have expressed concern that the
Endangered Species Act exemption allowing DOD to avoid critical habitat
designations may weaken oversight from the U.S. Fish and Wildlife
Service.
DOD has not presented a sound business case demonstrating the need for
the proposed exemptions from the Clean Air Act, the Resource
Conservation and Recovery Act, and the Comprehensive Environmental
Response, Compensation, and Liability Act. Best practices and prior GAO
work recommend that agencies develop a business case that includes,
among other things, expected benefits, costs, and risks associated with
a proposal‘s implementation. However, DOD has not provided any specific
examples showing that training and readiness have been hampered by
requirements of these laws. Meanwhile some federal, state, and
nongovernmental organizations have expressed concern that the proposed
exemptions, if granted, could harm the environment. Until DOD develops
a business case demonstrating the need for these exemptions, Congress
will lack a sound basis for assessing whether to enact requested
exemptions.
What GAO Recommends:
GAO recommends that, should DOD plan to pursue further environmental
exemptions, it should develop a business case that analyzes and
assesses the associated benefits, costs, and risks of those exemptions.
DOD partially concurred with the recommendation and provided technical
comments.
To view the full product, including the scope and methodology, click on
[hyperlink, http://www.GAO-08-407]. For more information, contact Brian
J. Lepore, 202-512-4523, Leporeb@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Requirements to Comply with Environmental Laws Have Affected Some
Training Activities, but Readiness Data Do Not Confirm that These Laws
Hamper Military Readiness:
DOD's Use of Exemptions Has Allowed Some Training Activities to
Continue and Enabled Others to Avoid Potential Delays:
Endangered Species and Migratory Bird Act Exemptions Have Not Adversely
Affected the Environment, and the Effect of the Marine Mammal
Protection Act Exemption Has Not Been Determined:
DOD Has Not Presented a Sound Business Case for the Three Proposed
Exemptions:
Conclusions:
Recommendation for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Scope and Methodology:
Appendix II: Comments from the Department of Defense:
Appendix III: GAO Contact and Staff Acknowledgments:
Table:
Table 1: Environmental Laws Authorizing Case-by-Case Exemptions for
Federal Facilities:
Figures:
Figure 1: California Least Tern Nesting Season Sign at Marine Corps
Base Camp Pendleton, California:
Figure 2: Increase in Red-Cockaded Woodpecker Potential Breeding Groups
at Fort Stewart and Eglin Air Force Base (1994 through 2016):
Figure 3: The Loggerhead Shrike Captive Breeding Facility at Naval Base
Coronado, San Clemente Island, California:
Abbreviations:
DOD: Department of Defense:
CERCLA: Comprehensive Environmental Response, Compensation, and Liability
Act:
CPEO: Center for Public Environmental Oversight:
CZMA: Coastal Zone Management Act:
EPA: Environmental Protection Agency:
FWSL U.S. Fish and Wildlife Service:
NEPA: National Environmental Policy Act:
NGOs: Nongovernmental organizations:
NRDC: Natural Resources Defense Council:
OSD: Office of the Secretary of Defense:
PEER: Public Employees for Environmental Responsibility:
RCRA: Resource Conservation and Recovery Act:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
March 7, 2008:
The Honorable Carl Levin:
Chairman:
The Honorable John McCain:
Ranking Member:
Committee on Armed Services:
United States Senate:
The Honorable Ike Skelton:
Chairman:
The Honorable Duncan L. Hunter:
Ranking Member:
Committee on Armed Services:
House of Representatives:
A fundamental principle of military readiness is that the military must
train as it intends to fight, and military training ranges[Footnote 1]
provide the primary means to accomplish this goal. New advances in
technology, coupled with the ongoing shift in force posture, mean that
the Department of Defense (DOD) needs to continually update and
maintain its training ranges. Military training ranges vary in size
from a few acres for small arms training to over a million acres for
large maneuver exercises and weapons testing, as well as broad open
ocean areas that provide for offshore training and testing. Like other
federal, state, local, and private facilities, DOD installations are
required to comply with environmental and other laws that are intended
to protect human health and the environment from harm. However,
according to DOD officials, a slow but steady increase in restrictions
affecting the use of these areas, such as heightened focus on the
application of environmental statutes and other encroachment
pressures,[Footnote 2] has limited the use of military training areas
for realistic training activities. DOD officials report that the
gradual accumulation of these limitations will increasingly threaten
readiness.
Most existing environmental laws allow for national security
exemptions, which DOD may request on a case-by-case basis when
compliance with specific environmental requirements is shown to have an
impact on the paramount interests of the United States. However, DOD
has seldom invoked these case-by-case exemptions, asserting that the
number of training exercises it conducts and the need to periodically
reapply for most exemptions makes obtaining them on a case-by-case
basis onerous and time consuming. In 2002, DOD submitted to Congress an
eight-provision legislative package known as the Readiness and Range
Preservation Initiative, which contained six provisions that sought to
modify the applicability of certain environmental statutory
requirements to DOD, in light of concern that these statutes could
limit realistic preparations for combat and negatively affect military
readiness.[Footnote 3] Pursuant to the Bob Stump National Defense
Authorization Act for Fiscal Year 2003[Footnote 4] and the National
Defense Authorization Act for Fiscal Year 2004,[Footnote 5] the
Readiness and Range Preservation Initiative provisions revising the
Migratory Bird Treaty Act,[Footnote 6] the Endangered Species
Act[Footnote 7] and the Marine Mammal Protection Act[Footnote 8] were
enacted into law. Since 2002, DOD has repeatedly but unsuccessfully
sought enactment of the three remaining provisions, which would exempt
DOD from certain requirements of the Clean Air Act;[Footnote 9] the
Resource Conservation and Recovery Act (RCRA);[Footnote 10] and the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA).[Footnote 11] The case-by-case exemptions and each of the
Readiness and Range Preservation Initiative provisions are discussed in
greater detail in the background section of this report.[Footnote 12]
Over the past several years, we have produced a body of work describing
the effects of encroachment on DOD's training activities, including
encroachment from endangered species. For example, in 2002 we reported
that DOD's readiness reports did not indicate the extent to which
environmental requirements restricted training activities and that
these reports indicated a high level of military readiness
overall.[Footnote 13] We also noted individual instances of
environmental requirements affecting training at some military
installations and recommended that DOD's readiness reporting system be
improved to more accurately identify problems for training that might
be attributed to the need to comply with statutory environmental
requirements. In 2003, we testified that environmental requirements
were only one of several factors that affected DOD's ability to carry
out training activities but that DOD was still unable to broadly
measure the effects of encroachment on readiness.[Footnote 14] In a
2005 report, we found that DOD continued to face various difficulties
in carrying out realistic training at its ranges.[Footnote 15]
House Armed Services Committee Report 110-146, which accompanies the
National Defense Authorization Act for Fiscal Year 2008,[Footnote 16]
directed us to review the extent to which environmental laws,
regulations, and exemptions are affecting DOD's training activities,
military readiness, and the environment. This report discusses the
effects, if any, of (1) environmental laws on DOD's training activities
and military readiness, (2) DOD's use of exemptions from environmental
laws on training activities, and (3) DOD's use of exemptions on the
environment. Lastly, the report evaluates the extent to which DOD has
demonstrated the need for its proposed exemptions from the Clean Air
Act, RCRA, and CERCLA as means of achieving its training and readiness
goals.
In performing this review, to directly observe the effects, if any, of
environmental laws and DOD's use of exemptions to the Migratory Bird
Treaty Act, Endangered Species Act, and the Marine Mammal Protection
Act on training activities, military readiness, and the environment, we
judgmentally selected 17 military training installations which included
training sites from each military service component. The installations
we selected were identified based on our previous work involving some
installations experiencing encroachment and sustainable training range
issues. DOD concurred that the installations we selected continue to
have problems in this area and stated that these locations would
provide an important perspective of some of the challenges DOD faces to
comply with environmental laws. Because the installations were
judgmentally selected, the specific challenges faced at these selected
locations cannot be generalized across all of DOD. We also obtained and
reviewed documents and reports describing the effects of environmental
laws and statutory exemptions on training and readiness and the need
for workarounds to meet training requirements from DOD and military
service officials responsible for managing military training. In
addition, we reviewed unit readiness data for fiscal years 2006 and
2007, which included some commander comment summaries describing, when
applicable, why a unit had not met its unit training requirements. Our
review of these data allowed us to assess whether environmental
restrictions imposed on DOD installations had an impact on unit
readiness. To determine the effect of DOD's use of the exemptions on
the environment, we reviewed related reports and studies, and some
installation management plans to determine how natural resources, such
as migratory birds, marine mammals, and endangered species and their
habitats are protected on DOD lands during military training exercises.
We also interviewed officials from nongovernmental organizations (NGO)
that are involved in endangered species protection efforts and wildlife
oversight issues to obtain their perspectives on how well DOD has done
to protect the natural resources on its lands. We interviewed officials
from the Office of the Secretary of Defense (OSD); the Departments of
the Army, the Navy, and the Air Force; the Marine Corps; other federal
agencies, such as the Environmental Protection Agency (EPA), the
National Marine Fisheries Service,[Footnote 17] and the U.S. Fish and
Wildlife Service (FWS)[Footnote 18] to discuss the effects of
environmental laws and statutory exemptions on military training
activities. We also discussed with these officials the potential
benefits and problems associated with the proposed statutory exemptions
to the Clean Air Act, RCRA, and CERCLA on training activities, military
readiness, and the environment. In addition, we reviewed documents that
provided the perspectives of NGOs and federal and state regulatory
agencies on the potential impact of the proposed exemptions on the
environment.
On the basis of information obtained from the military services on the
reliability of their unit readiness data, our discussions with DOD,
military service, and NGO officials, and our review and analysis of
documents and reports describing the effects of environmental
requirements and statutory exemptions on training activities, military
readiness, and the environment, we believe that the data used in this
report are sufficiently reliable for our purposes. The time periods
encompassed by the data used in this report vary for each of our
objectives depending on the date ranges for which each type of data was
available. We conducted this performance audit from June 2007 through
March 2008 in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit
to obtain sufficient, appropriate evidence to provide a reasonable
basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our audit objectives. A more
thorough description of our scope and methodology is presented in
appendix I.
Results in Brief:
While compliance with environmental laws has affected some training
activities and how they are conducted, reported readiness data do not
confirm that compliance with these laws hampers overall military
readiness. Since 2002, DOD officials have voiced concerns that
compliance with statutory environmental requirements has hindered DOD's
ability to provide units with adequate, realistic training and may
cause units to receive a substandard level of training. During our
visits to 17 military training ranges, we found some instances where
training activities were canceled, postponed, or modified in order to
meet environmental requirements. For example, at Fort Irwin,
California, the presence of threatened desert tortoises caused trainers
and commanders to plan training scenarios around areas blocked off to
protect these species, limiting the amount of training areas commanders
can use to train their units. We also found instances where DOD used
adjustments to training events, referred to as workarounds, to
accomplish training objectives while meeting environmental
requirements. For example, at Camp Pendleton, California, officials
said that to protect species' habitat and cultural sites Marines plant
flags to represent foxholes instead of digging foxholes on the beach,
which limits their ability to conduct realistic training. Some DOD
officials acknowledged that learning to deal with restrictions is
standard operating procedure and some trainers instruct units to
pretend restricted training areas are holy grounds, mine fields, or
other restricted areas in theater, which offers an element of realism
on the need to avoid specific areas and locations when deployed. Our
review showed that cancellations or modifications of some training
activities occurred at some of the installations we visited; however,
readiness data for active duty combat units did not confirm that
military readiness was hindered because of restrictions imposed by
various environmental laws. Furthermore, DOD's readiness reporting
system does not systematically capture the ability of individual ranges
to support training or the effects of endangered species and their
habitats, wetlands, air quality, water quality, and other encroachment
factors on range availability. OSD and the services are in the process
of modifying their readiness reporting systems to capture this type of
information, but these systems are in early stages of development.
DOD has used the exemptions from the Marine Mammal Protection Act and
Migratory Bird Treaty Act to continue conducting training activities
that might otherwise have been prohibited, delayed, or canceled, and
the Endangered Species Act exemptions have enabled DOD to avoid
potential training delays by providing it greater autonomy in managing
its training lands. Since 2006, the Navy has twice invoked its
exemption from the Marine Mammal Protection Act to continue using mid-
frequency active sonar technology in military training exercises that
would have otherwise been prevented by the law's protection of marine
mammals, such as whales and dolphins, which may be affected by the
technology. According to Navy officials, the use of mid-frequency
active sonar is a vital component to its antisubmarine warfare training
program. DOD's exemption from the Migratory Bird Treaty Act, which
authorizes the incidental taking of migratory birds during military
readiness activities, eliminated the possibility of having to delay or
cancel military training exercises authorized by the Secretary of
Defense, such as Navy live-fire training exercises at the Farallon de
Medinilla Target Range within the Mariana Islands in the Pacific Ocean.
DOD officials we spoke to told us that the exemption enabled DOD to
avoid potential legal action that could have significantly affected
training and readiness exercises at Farallon de Medinilla and other DOD
installations. However, according to officials we met with during our
visits to other installations with migratory bird populations, training
activities at those locations generally do not affect migratory birds.
The Endangered Species Act revisions provide that FWS consider the
impact to national security when designating critical habitat on DOD
lands and provide alternatives to critical habitat designation.
According to DOD officials we spoke with, not having its lands
designated as critical habitat gives the department the flexibility
needed to perform readiness activities while simultaneously protecting
the natural resources located on its installations. FWS officials
stated that this exemption codified its practice of not designating
critical habitat on DOD lands. However, DOD officials believed that the
department needed this exemption to avoid the potential of any future
FWS designations that could restrict training on DOD lands and cause
potential delays in training while the required administrative
consultations with FWS are completed. According to FWS officials,
critical habitat designations would have required an additional level
of consultation, which would have had very minimal, if any, effect on
DOD's ability to use its lands for training purposes. Nonetheless, DOD
officials believed that the increased level of consultation would take
additional time and resources to plan and execute military training.
Based on meetings with officials within and outside DOD and visits to
17 training ranges, we found no instances where DOD's use of exemptions
from the Endangered Species Act or Migratory Bird Treaty Act has
adversely affected the environment; however, the impact of the Marine
Mammal Protection Act exemption has not yet been determined. DOD,
federal regulatory agency and NGO official, and officials at the
military training ranges we visited said that there were no instances
where DOD's use of the Endangered Species Act exemptions has adversely
affected the populations of endangered or threatened species. Moreover,
the services employ a variety of measures and conservation activities
to mitigate the effects of their training resources on endangered
species populations on their lands. We found that, in several
instances, these efforts have achieved positive results with regard to
the increases in the populations of certain endangered species. For
example, at Naval Base Coronado, California, the Navy, in partnership
with FWS and the San Diego Zoo, has developed a captive breeding
program that has increased the population of the San Clemente
loggerhead shrike, an endangered bird species, on San Clemente Island.
In addition, based on conservation efforts at Eglin Air Force Base,
Florida, and Fort Stewart, Georgia, the number of red-cockaded
woodpeckers, an endangered bird species, has increased. FWS officials
told us that DOD has taken positive steps to manage and preserve its
natural resources and provided several examples of where DOD has taken
proactive steps to manage threatened species and species being
considered for protection under the act. NGOs, such as the Natural
Resources Defense Council (NRDC), the Center for Biological Diversity,
and the Endangered Species Coalition, have all expressed concern that
DOD's use of these plans in lieu of critical habitat designation may
weaken the oversight FWS has under the Endangered Species Act. With
regard to the Migratory Bird Treaty Act exemption, DOD, federal
regulatory agency officials, NGO officials, and officials at the
military training ranges we visited all said that there were no
instances where DOD's use of the exemption has significantly affected
the populations of migratory birds. However, DOD and NGO officials
disagree about the overall effect of the Navy's use of mid-frequency
active sonar on marine mammals protected under the Marine Mammal
Protection Act. For example, some NGO's argue that the use of Navy
sonar has a direct link to whale and dolphin strandings. DOD
acknowledges that, under certain circumstances and conditions, exposure
to mid-frequency active sonar may have an effect upon certain species,
but DOD states also that the causal connection between whale strandings
and exposure to mid-frequency active sonar is not known.
DOD has not presented a sound business case demonstrating the need for
the proposed exemptions from the Clean Air Act, RCRA, and CERCLA to
help achieve its training and readiness requirements. Best practices
and our prior work recommend that agencies develop a business case that
includes, among other things, a description of the problem addressed by
the proposal, the scope of the proposed initiative, anticipated
benefits, other options considered, expected costs, and expected risks
associated with the proposal's implementation. DOD has addressed some
of these elements in its annual sustainable ranges reports[Footnote 19]
and its Readiness and Range Preservation Initiative, and DOD officials
have stated some possible benefits of the proposed exemptions including
greater flexibility in replacing or realigning forces and equipment in
areas that do not meet certain EPA air quality standards, safeguards
against lawsuits over munitions-related training, and a shield from
regulatory actions related to the firing of munitions on operational
ranges. However, the department has not provided any specific examples
to support its assertions that these activities have been hampered by
requirements of the Clean Air Act, RCRA, or CERCLA, respectively. DOD
also has not provided any of the other elements of a sound business
case. Meanwhile, some federal, state, and NGO officials have expressed
concern that the proposed exemptions, if granted to DOD, could lead to
harming the environment by potentially increasing air pollution or
weakening federal and state oversight of DOD activities on operational
ranges. Until DOD develops a sound business case in support of its
proposed exemptions from the Clean Air Act, RCRA, and CERCLA, Congress
lacks a sound basis for assessing the need to enact these three
requests.
Should DOD plan to pursue exemptions from the Clean Air Act, RCRA,
CERCLA, or other environmental laws in the future, we recommend that
DOD develop a sound business case that includes detailed qualitative
and quantitative analyses assessing the associated benefits, costs, and
risks of the exemptions from these environmental laws. In written
comments on a draft of this report, DOD partially concurred with our
recommendation. DOD agreed that a sound business case should be
developed in association with future proposals to environmental laws
and added that it does not accept the premise readiness and training
imperatives or associated risks were not conveyed to the extent
feasible for its Clean Air Act, RCRA, and CERCLA provisions. We
continue to believe that DOD has not provided adequate support for its
assertion that military readiness have been hindered by the
requirements of these laws, and we stand by our recommendation that DOD
needs to present a sound business case should it pursue future
exemptions. We discuss DOD's comments in detail later in this report.
Background:
One of DOD's goals is to prepare its combat units for wartime
operations by providing units with the most realistic training
possible. DOD operates and maintains hundreds of training ranges
located throughout the country. Its combat units use training areas
located in a wide variety of climates and include the full scale of
training terrains, such as ocean areas, desert and mountainous regions,
and jungle-like environments, which provide DOD combat units the
opportunity to train in environments they will most likely operate in
once deployed for wartime operations. These training areas also
encompass critical habitat and are home to a variety of endangered
species.
Several Environmental Statutes Include National Security Exemptions:
Like other federal, state, local, and private facilities, DOD
installations are generally required to comply with environmental and
other laws that are intended to protect human health and the
environment from harm. However, several environmental statutes include
a national security exemption that DOD may invoke to ensure the
requirements of those statutes would not restrict military training
needs that are in the paramount interest of the United States. These
exemptions require a case-by-case determination by an authorized
decision maker and provide authority for suspending compliance
requirements for actions at federal facilities, including military
installations. To date, DOD has received or invoked exemptions under
the Coastal Zone Management Act (CZMA), Endangered Species
Act,[Footnote 20] Marine Mammal Protection Act, and RCRA. Although
seldom made, DOD's requests for exemption have been approved in every
case. Table 1 presents the environmental statutes that authorize case-
by-case exemptions and the approval standards.
Table 1: Environmental Laws Authorizing Case-by-Case Exemptions for
Federal Facilities:
Statute: Authorized decision maker;
Clean Air Act 42 U.S.C. §7418(b): The President;
Clean Water Act 33 U.S.C. §1323(a): The President;
Coastal Zone Management Act 16 U.S.C. § 1456(c)(1)(B): The President;
Comprehensive Environmental Response Compensation and Liability Act 42
U.S.C. §9620(j): The President;
Endangered Species Act 16 U.S.C. §1536(j): The Endangered Species
Committee[B];
Marine Mammal Protection Act[A] 16 U.S.C. §1371(f): The Secretary of
Defense, after conferring with the Secretary of Commerce or the
Interior, as appropriate;
Noise Control Act 42 U.S.C. §4903(b): The President;
Resource Conservation and Recovery Act 42 U.S.C. §6961(a): The
President;
Safe Drinking Water Act 42 U.S.C. §300h-7(h): The President.
Statute: Standard;
Clean Air Act 42 U.S.C. §7418(b): In the paramount interest of the
United States;
Clean Water Act 33 U.S.C. §1323(a): In the paramount interest of the
United States;
Coastal Zone Management Act 16 U.S.C. § 1456(c)(1)(B): In the paramount
interest of the United States;
Comprehensive Environmental Response Compensation and Liability Act 42
U.S.C. §9620(j): Where necessary to protect U.S. national security
interests at a DOD or Department of Energy site or facility;
Endangered Species Act 16 U.S.C. §1536(j): Necessary for national
security;
Marine Mammal Protection Act[A] 16 U.S.C. §1371(f): Necessary for
national defense;
Noise Control Act 42 U.S.C. §4903(b): In the paramount interest of the
United States;
Resource Conservation and Recovery Act 42 U.S.C. §6961(a): In the
paramount interest of the United States;
Safe Drinking Water Act 42 U.S.C. §300h-7(h): In the paramount interest
of the United States.
Statute: Duration;
Clean Air Act 42 U.S.C. §7418(b): Not to exceed 1 year; additional 1
year exemptions may be granted;
Clean Water Act 33 U.S.C. §1323(a): Not to exceed 1 year; additional 1
year exemptions may be granted;
Coastal Zone Management Act 16 U.S.C. § 1456(c)(1)(B): No limit;
Comprehensive Environmental Response Compensation and Liability Act 42
U.S.C. §9620(j): Not to exceed 1 year; additional 1 year exemptions may
be granted;
Endangered Species Act 16 U.S.C. §1536(j): No limit;
Marine Mammal Protection Act[A] 16 U.S.C. §1371(f): For a specified
period not to exceed 2 years; additional 2 year exemptions may be
granted;
Noise Control Act 42 U.S.C. §4903(b): Not to exceed 1 year; additional
1 year exemptions may be granted;
Resource Conservation and Recovery Act 42 U.S.C. §6961(a): Not to
exceed 1 year; additional 1 year exemptions may be granted;
Safe Drinking Water Act 42 U.S.C. §300h-7(h): No limit.
Statute: Reporting requirement;
Clean Air Act 42 U.S.C. §7418(b): Annual report by President to
Congress of exemptions granted with the reason for granting;
Clean Water Act 33 U.S.C. §1323(a): Annual report by President to
Congress of exemptions granted with the reason for granting;
Coastal Zone Management Act 16 U.S.C. § 1456(c)(1)(B): None;
Comprehensive Environmental Response Compensation and Liability Act 42
U.S.C. §9620(j): President must notify Congress within 30 days of
ordering an exemption and state reasons for granting; also periodic
progress reports to Congress;
Endangered Species Act 16 U.S.C. §1536(j): None, unless the committee
directs DOD to carry out mitigation measures for the affected species;
Marine Mammal Protection Act[A] 16 U.S.C. §1371(f): No later than 30
days after issuing the exemption, the Secretary of Defense shall give
notice to the House and Senate Armed Services Committees;
Noise Control Act 42 U.S.C. §4903(b): Annual report by President to
Congress of exemptions granted with the reason for granting;
Resource Conservation and Recovery Act 42 U.S.C. §6961(a): Annual
report by President to Congress of exemptions granted with the reason
for granting;
Safe Drinking Water Act 42 U.S.C. §300h-7(h): None.
Source: GAO analysis of environmental statutes.
[A] The Marine Mammal Protection Act's case-by-case exemption was
created pursuant to the fiscal year 2004 defense authorization act, in
response to a Readiness and Range Preservation Initiative proposal.
[B] Members of the Endangered Species Committee are the Secretaries of
the Interior, Agriculture, and the Army; the Administrators of EPA and
the National Oceanic and Atmospheric Administration; the Chairman of
the Council of Economic Advisors; and a presidential appointee from
each affected state.
[End of table]
DOD's Readiness and Range Preservation Initiative Proposed Revisions to
Six Environmental Statutes:
In 2002, DOD submitted to Congress an eight-provision legislative
package, referred to as the Readiness and Range Preservation
Initiative, proposing revisions to six environmental statutes on the
basis of DOD's concerns that restrictions in these statutes could limit
realistic preparations for combat and negatively affect military
readiness.[Footnote 21] DOD also requested two additional provisions
that would allow DOD to cooperate more effectively with third parties
on land transfers for conservation purposes. To date, Congress has
enacted five of the Readiness and Range Preservation Initiative
provisions.
The fiscal year 2003 defense authorization act[Footnote 22] directed
the Secretary of the Interior to prescribe regulations for issuing
permits for the "incidental takings" of migratory birds during military
training exercises authorized by the Secretary of Defense and provided
an interim exemption from the Migratory Bird Treaty Act's[Footnote 23]
prohibition against taking, killing, or possessing any migratory birds
except as permitted by regulation, until the implementation of new
regulations. DOD had been concerned about the effects of a court
decision holding that certain military readiness activities resulting
in migratory bird takings violated the Migratory Bird Treaty Act.
Interior department regulations published in February 2007 allow for
the Armed Forces to take migratory birds incidental to military
readiness activities, provided that for those activities the Armed
Forces determine may result in a significant, adverse effect on a
population of migratory bird species, they must confer with the FWS to
develop and implement appropriate conservation measures to minimize or
mitigate those effects.[Footnote 24] The Secretary of the Interior
retains the power to withdraw or suspend the authority for incidental
takings of migratory birds for particular activities under certain
circumstances. Two additional provisions enacted in the fiscal year
2003 defense authorization act authorized the Secretary of a military
department to enter into an agreement with a state or local government
or any private organization committed to the conservation, restoration,
or preservation of land and natural resources to address encroachment
issues and to convey any surplus real property under the Secretary's
administrative control that is suitable and desirable for conservation
purposes to any state or local government or nonprofit organization
committed to conservation of natural resources on real
property.[Footnote 25]
The fiscal year 2004 defense authorization act[Footnote 26] enacted two
of the five remaining Readiness and Range Preservation Initiative
provisions by authorizing DOD exemptions from the Endangered Species
Act[Footnote 27] and the Marine Mammal Protection Act.[Footnote 28] One
of the revisions to the Endangered Species Act precluded the Secretary
of the Interior from designating as critical habitat DOD lands that are
subject to an approved integrated natural resources management plan, if
the Secretary makes a written determination that such a plan provides a
benefit to the species being designated.[Footnote 29] DOD, like other
federal agencies, is still required to consult with the FWS and the
National Marine Fisheries Service, as appropriate, to ensure that
actions it performs, authorizes, funds, or permits are not likely to
jeopardize the continued existence of a listed species or adversely
modify its critical habitat.[Footnote 30] In DOD's view, this statutory
revision was needed to avoid the potential of any future critical
habitat designations that could restrict the use of military lands for
training. The other revision to the Endangered Species Act requires the
Secretary of the Interior to consider effects on national security when
deciding whether to designate critical habitat,[Footnote 31] but does
not remove DOD from being subject to all other protections provided
under the act. The revision to the Marine Mammal Protection Act
authorized the Secretary of Defense to exempt for a specific period,
not to exceed 2 years, any action or category of actions undertaken by
DOD or its components from compliance with the act's prohibition
against illegal takings of marine mammals, if the Secretary determines
it is necessary for national defense. The revision also amended the
definition of "harassment" of marine mammals, as it applies to military
readiness activity, to require evidence of harm or a higher threshold
of potential harm, and required the Secretary of the Interior to
consider the impact on the effectiveness of the military readiness
activity in the issuance of permits for incidental takings. In DOD's
view these amendments were needed to prevent restrictions on the use of
the Navy's sonar systems.
Similar to previous years since fiscal year 2003, DOD included in its
proposed National Defense Authorization Act for Fiscal Year 2008 the
three remaining Readiness and Range Preservation Initiative provisions
which provide exemptions from certain requirements of the Clean Air
Act, RCRA, and CERCLA. As with previous Congresses, the 110th Congress
did not include these provisions in the version of the bill that went
before both houses for final vote. Descriptions of the three remaining
proposals follow:
* First, the proposed revision to the Clean Air Act would have deferred
emissions generated by military readiness activities from conforming to
applicable state clean air implementation plans for achieving federal
air quality standards and allowed DOD up to 3 years to satisfy these
requirements. To be in conformity, a federal action must not contribute
to new violations of the standards for ambient air quality, increase
the frequency or severity of existing violations, or delay timely
attainment of standards in the area of concern. DOD proposed this
revision to provide flexibility for transferring training operations to
areas with poor air quality without restrictions on these operations
due to generated emissions. In addition, the revision would have
required EPA to approve a state plan even if emissions from military
readiness activities would prevent a given area within the state from
achieving clean air standards.
* Second, DOD's proposed revision to RCRA would have amended the
definition of "solid waste" to exclude munitions that are on an
operational range[Footnote 32] incident to their normal use, thereby
excluding such munitions from regulation under RCRA. RCRA governs,
among other things, the management of hazardous wastes, including
establishing standards for treatment, storage, and disposal facilities.
* Third, the proposed revision to CERCLA, under which entities
responsible for releases of hazardous substances are liable for
associated cleanup costs, would have similarly amended the definition
of "release." CERCLA defines release as any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, or disposing into the environment (including the
abandonment or discarding of barrels, containers, and other closed
receptacles containing any hazardous substance or pollutant or
contaminant).
DOD's view is that the proposed revisions to RCRA and CERCLA would
clarify existing regulations EPA finalized in its 1997 Military
Munitions Rule,[Footnote 33] pursuant to which "used" or "fired"
munitions on a range are considered solid waste, subject to disposal
requirements, only when they are removed from their landing spot. DOD
sought this revision to eliminate the possibility of legal challenges
to the rule, which might have resulted in an active range being closed
to require the removal of accumulating munitions and cleanup of related
contamination, thus restricting training.
Defense Readiness Reporting System:
To the extent that encroachment adversely affects training readiness,
opportunities exist for the problems to be reported in departmental and
military service readiness reports. DOD defines readiness as the
ability of U.S. military forces to fight and meet the demands of the
national military strategy. Readiness is the synthesis of two distinct
but interrelated levels: unit readiness (the ability of each unit to
provide capabilities required by the combatant commanders to execute
their assigned missions) and joint readiness (the combatant commander's
ability to integrate and synchronize ready combat and support forces to
execute his or her assigned missions).
DOD has stated that the goal of any readiness reporting or assessment
system is to reveal whether forces can perform their assigned missions.
Historically, DOD has inferred this ability from the status of unit
resources via the Global Status of Resources and Training System. This
system is the primary means for units to report readiness against
designed operational goals. The system's database indicates, at
selected points in time, the extent to which units possess the required
resources and training to undertake their wartime missions. DOD found,
however, that these input-based assessments do not yield direct
information on whether a force can actually perform an assigned mission
despite potential resource shortfalls.
In the spring of 2002, DOD announced plans to create a new Defense
Readiness Reporting System that would provide commanders with a
comprehensive assessment of the ability of capable entities to conduct
operations without the command having to research and examine numerous
databases throughout DOD, such as the Global Status of Resources and
Training System and the service-specific readiness reporting systems.
According to DOD, this new system is expected to be able to seamlessly
integrate readiness data with planning and execution tools, providing a
powerful means for rapidly assessing, planning, and executing
operations. This system expands the readiness reporting process from
simple resource-based reporting to the use of near real-time readiness
information and dynamic analysis tools to determine the capability of
an organization to execute tasks and missions. Specifically, the system
represents a shift from (1) resources to capabilities--inputs to
outputs; (2) deficiencies to their implications; (3) units to the
combined forces; and (4) frontline units to all units contributing to
front line operations.
Our Prior Work:
This report is a continuation of a series of reports that we have
issued on matters related to training constraints as a result of
encroachment factors on DOD's training ranges. The following summarizes
key issues from these reports:
* In June 2002, we reported that DOD's readiness reports did not
indicate the extent to which environmental requirements restricted
training activities, and that these reports indicated a high level of
military readiness overall.[Footnote 34] We also noted individual
instances of environmental requirements at some military installations
and recommended that DOD's readiness reporting system be improved to
more accurately identify problems for training that might be attributed
to the need to comply with statutory environmental requirements. We
found that (1) despite the loss of some capabilities, service readiness
data did not indicate the extent to which encroachment has
significantly affected reported training readiness; (2) though
encroachment workarounds may affect costs, the services had not
documented the overall impact of encroachment on training costs; and
(3) the services faced difficulties in fully assessing the impact of
training ranges on readiness because they had not fully defined their
training range requirements and lacked information on the training
resources available to support those requirements.
* In April 2003, we testified that environmental requirements were only
one of several factors that affected DOD's ability to carry out
training activities, but that DOD was still unable to broadly measure
the effects of encroachment on readiness.[Footnote 35] We found that
(1) encroachment affected some training range capabilities, required
workarounds, and sometimes limited training, at all stateside
installations and major commands that we visited; (2) service readiness
data in 2002 did not show the impact of encroachment on training
readiness or costs, and though individual services were making some
assessment of training requirements and limitations imposed by
encroachment, comprehensive assessments had yet to be done; and (3)
although some services reported higher costs because of encroachment-
related workarounds for training, service data systems did not capture
the costs comprehensively. We recommended a more comprehensive plan
that clearly identified steps to be taken, goals and milestones to
track progress, and required funding.
* In June 2005, we found that DOD continued to face various
difficulties in carrying out realistic training at its ranges.[Footnote
36] We reported that deteriorating conditions and a lack of
modernization adversely affected training activities and jeopardized
the safety of military personnel. We observed various degraded
conditions at each training range visited, such as malfunctioning
communication systems, impassable tank trails, overgrown areas, and
outdated training areas and targets. DOD's limited progress in
improving training range conditions was partially attributable to a
lack of a comprehensive approach. We found that (1) while the services
had individually taken a varying number of key management improvement
actions, such as developing range sustainment policies, these actions
lacked consistency across DOD or focused primarily on encroachment
without including commensurate efforts on other issues, such as
maintenance and modernization; (2) though the services could not
precisely identify the funding required and used for their ranges,
range requirements had historically been inadequately funded; and (3)
although DOD policy, reports, and plans had either recommended or
required specific actions, DOD had not fully implemented these actions.
Requirements to Comply with Environmental Laws Have Affected Some
Training Activities, but Readiness Data Do Not Confirm that These Laws
Hamper Military Readiness:
The requirement to comply with environmental laws has affected some
training activities and how they are conducted, but our review of DOD's
readiness data does not confirm that compliance with these laws hampers
overall military readiness. During our visits to training ranges, we
found some instances where training activities were canceled,
postponed, or modified in order to address environmental requirements.
However, DOD officials responsible for planning and facilitating
training events may implement adjustments to training events, referred
to as "workarounds," to ensure training requirements are still
accomplished. Our discussions with officials responsible for readiness
data and our review of these data did not confirm that military
readiness has been hindered because of restrictions imposed by
environmental laws. OSD and each of the military services are currently
in the process of developing systems that will provide DOD leadership
and outside stakeholders a better understanding of how external
factors, such as environmental laws, affect the department's training
and readiness.
Compliance with Environmental Laws Has Affected Some Training
Activities and How They Are Conducted:
Compliance with various environmental laws has created restrictions on
how DOD manages, plans, and conducts training exercises on its
installations. Military training areas are subject to environmental
laws which are intended to help the survival and preservation of the
natural resources located on these training lands. Many of these
training areas are home to endangered species; thus, areas that could
be used for training or had been used for training on DOD installations
are restricted and blocked off to prevent units from disturbing or
harming the habitat of the endangered species, as the following
examples illustrate.
* Marine Corps Base Camp Pendleton, California Because of competing
land use and various environmental restrictions, officials at the base
have reported that Marine combat units can use only about 6 percent
(less than 1 mile) of its 17 miles of sandy beaches along the coast of
the Pacific Ocean for major amphibious landing training exercises. Two
of the environmental restrictions cited were for the threatened San
Diego fairy shrimp, the endangered Coastal California gnatcatcher and
its habitat. Another restriction involved the nesting season for the
endangered bird called the California least tern (see fig. 1). Camp
Pendleton officials said closing one beach during the nesting season
introduces some artificiality into its training events because
commanders would be limited in the number of landing areas available to
them during offensive operational exercises.
Figure 1: California Least Tern Nesting Season Sign at Marine Corps
Base Camp Pendleton, California:
[See PDF for image]
This figure is a photograph of the California Least Tern Nesting Season
Sign at Marine Corps Base Camp Pendleton, California.
[End of figure]
* Barry M. Goldwater Range, Luke Air Force Base, Arizona Training
officials stated that in calendar year 2004, about 8 percent (72 cases
out of 878) of the F-16 training exercises were canceled due to the
presence of the endangered Sonoran pronghorn species present on the
training range impact area.
* Aberdeen Proving Ground, Maryland Installation officials told us that
on eight different occasions between April 2003 and June 2006, training
exercises for the Naval Special Warfare Combatant Command were
canceled unexpectedly, due to the presence of new bald eagle nests in
the training area and concerns that harm to the eagle population could
have legal repercussions. In order to accomplish the required training
requirements, the Navy official responsible for scheduling these
exercises told us that the expeditionary force teams had to reschedule
their training exercises for later dates or alternate locations, which
were not as beneficial as the training area provided at Aberdeen
Proving Ground.
* Naval Base Coronado, San Clemente Island, California Training
officials told us that during the fire season the Navy is prohibited
from firing illumination rounds on the shore bombardment area at San
Clemente Island, which is used by the Navy for surface ship live-fire
exercises. The exact dates for fire season vary from year to year,
depending on the weather, but are generally for 8 months. According to
Navy officials, some sailors do not receive this type of training until
after they are deployed.
* Army National Training Center, Fort Irwin, California Installation
officials said the presence of the threatened desert tortoise caused
trainers and commanders to plan training activities around areas
designated and blocked off for the protection of this protected
species.
Some military commanders believe that compliance with environmental
laws protecting the natural resources may cause them to design training
programs and scenarios that differ from what units would face once
deployed for wartime operations. However, we found no evidence that
combat units are unable to accomplish their training requirements
despite the requirement to comply with various environmental laws.
Furthermore, some officials we spoke with at these installations
indicated that training areas available after protected zones had been
established for these endangered species are sufficient to train units.
Some OSD officials and other officials within DOD expressed the view
that, although combat units can satisfy training requirements and may
be deemed ready for combat deployments, compliance with environmental
laws can significantly degrade the intended "realistic training" these
units receive. According to those officials, when commanders and
trainers are required to deviate from original training plans and
procedures in order to comply with various environmental laws, combat
units may not receive training experiences that mirror situations they
might experience in a wartime scenario. These officials acknowledged
the difficulty in measuring the impact environmental restrictions have
on training, but they said constant deviation from realistic training
scenarios has the potential to create an ill-prepared force and could
possibly leave combat units vulnerable once deployed for combat
missions.
Use of Workarounds Allows DOD to Meet Training Requirements:
Despite having to comply with environmental restrictions, DOD is able
to meet its readiness and training requirements through adjustments or
modifications to training activities, known as workarounds. Usually
trainers and planners know in advance the environmental restrictions
they are faced with prior to a training event and plan accordingly to
ensure required training tasks are completed. For example, at Camp
Pendleton, California, officials said that to protect San Diego fairy
shrimp habitat and archaeological cultural sites, Marines plant flags
to represent foxholes instead of digging foxholes on the beach. Marine
Corps officials said this workaround allows them to meet its training
requirement, but limits their ability to conduct realistic training.
Similarly, to accomplish training requirements and to protect aquatic
and bank-side habitat for an endangered salmon species, officials at
the Yakima Training Center, Washington, said vehicle traffic is limited
to the use of bridges instead of allowing units to drive through creeks
which would better approximate actual battlefield conditions.
Officials acknowledged that complying with environmental laws can make
it difficult at times to plan and conduct training events; however,
these officials also acknowledged that military operations will always
be subject to external restrictions whether units operate within the
United States or abroad. For example, DOD officials said when units are
deployed they may be restricted from damaging religious sites, such as
churches or mosques, or may have to avoid dangerous operating areas
like mine fields, so learning to deal with restrictions is standard
operating procedure and the military has adapted to dealing with these
requirements. In many cases, officials responsible for scheduling and
facilitating training events incorporate environmental restrictions
into planned training scenarios. For example, Fort Stewart, Fort Lewis,
and Marine Corps Base Camp Pendleton officials said trainers instruct
units to pretend restricted training areas are holy grounds, mine
fields, or any other restricted area in theatre and advise them to
avoid these areas. According to DOD officials, implementing these types
of workarounds allows the department to accomplish its training
requirements while ensuring natural resources are sustained and
protected and offers an element of realism in terms of the need to
avoid certain venues when units are actually deployed.
Readiness Data and Reports Did Not Confirm that Military Readiness Was
Hindered:
Readiness data we reviewed for active duty combat units did not confirm
that military readiness was hindered because of restrictions imposed by
various environmental laws. In order to determine whether combat units
are capable and ready to deploy for wartime missions, DOD and the
military services use their unit readiness reporting systems to, among
other things, report on whether a unit has received an adequate amount
of training to perform its assigned mission prior to deployment. Two of
the systems used to track unit readiness reporting are the Status of
Resources and Training System, which is a DOD-wide readiness rating
system, and the Army Readiness Management System. In the Status of
Resources and Training System, if a unit is not adequately trained and
is unable to perform its assigned mission, commanders record a less
than satisfactory assessment score into the system and may include a
brief summary in the "commanders comments" section within the system
that explains why the unit is unable to perform its assigned mission.
Our review of these reports for fiscal year 2006 and fiscal year 2007,
including a review of the written commanders comments for Army, Navy,
and Marine Corps active duty combat units, revealed that when units had
not received an adequate amount of training, it was for a variety of
reasons, such as not having enough assigned personnel or equipment.
However, environmental restrictions did not appear as reasons why units
were not adequately trained. Although we did not independently review
readiness data for Air Force units due to data availability and time
constraints, officials responsible for managing and maintaining these
data told us that environmental restrictions generally did not appear
as reasons why units were not adequately trained.
DOD officials responsible for planning and facilitating DOD unit combat
training at the installations we visited stated that a unit's readiness
is generally not affected by environmental restrictions imposed on the
installations. According to some officials, environmental restrictions
may in fact hinder a unit from receiving adequate training, but DOD's
readiness reporting system does not capture the ability of individual
ranges to support training or the effects of endangered species and
their habitat, wetlands, air quality, water quality, and other
encroachment factors on range availability. According to one official
responsible for managing data reported in the readiness system, there
is no requirement to report environmental restrictions in the system,
even though commanders have the option to do so. DOD officials said
many commanders do not record environmental restrictions as a barrier
to training because they use workarounds to ensure training tasks are
accomplished, even if the environmental restriction caused them to
alter or delay a training event.
OSD and Services Are Developing Systems to Measure the Effects of
Encroachment:
OSD and the services currently have efforts underway to develop systems
to measure the effects encroachment factors, including environmental
restrictions, have on an installation's ability to meet its training
mission. For example, the Office of the Secretary of Defense for
Personnel and Readiness has begun to develop a new functionality within
its Defense Readiness Reporting System that would provide DOD
leadership and outside stakeholders, such as Congress, a better
understanding of how external factors, such as environmental laws,
affect training activities and readiness. Additionally, over the last
few years, the services have spearheaded separate initiatives to track
and report the encroachment factors that are affecting training on
their installations. OSD officials said they will use these systems as
data feeds into the new functionality within the Defense Readiness
Reporting System.[Footnote 37]
Defense Readiness Reporting System:
DOD is currently working to update and improve its Defense Readiness
Reporting System that will assess constraints a military range faces
when facilitating training for combat units. According to DOD officials
we met with who are responsible for the development, update, and
implementation of the Defense Readiness Reporting System, this system
is expected to soon have the capability to identify the extent to which
encroachment factors affect a range's ability to support various
operational capabilities, such as combat, combat support, and combat
service support. Although this system is in early stages of
development, DOD plans to pilot test this new functionality during
calendar year 2008. According to DOD officials, there are still ongoing
discussions with the services to solidify and agree on all the factors
that will be measured. These officials told us they expect decisions to
be finalized in the early part of fiscal year 2008, but at the time of
this review OSD and the services had not come to a final agreement.
Army's Installation Status Report (Natural Infrastructure) and
Encroachment Condition Module:
Over the last few years, the Army has been working to introduce systems
to report and track factors affecting training on its installations.
The Army's Installation Status Report (Natural Infrastructure) is a new
decision-support tool used by Army leadership to assess the capability
of an installation's natural infrastructure to support mission
requirements. In addition, the Army has developed an Encroachment
Condition Module that quantitatively evaluates the impact of eight
encroachment factors--threatened and endangered species, critical
habitat, cultural resource sites, wetlands, air quality regulations,
Federal Aviation Administration regulations, noise restrictions, and
frequency spectrum--in order to assess measurable impact to training
and testing at the installation and range level.
Although the Army has made progress developing these systems, at the
time of this review the Army was still in the process of field-testing
these systems and thus had not finalized and released these systems
throughout the Army. During discussions with multiple officials at the
Army installations that we visited, concerns were expressed that some
of the reports generated by the Installation Status Report (Natural
Infrastructure) appear to exaggerate the factors affecting the
installations' ability to support training requirements. In addition,
these officials were also concerned that the data generated from the
Encroachment Condition Module do not reflect the actual environmental
restrictions placed on the installations, which appear to significantly
limit the installations' ability to provide unit-level training. Some
of these installation officials have also written memorandums
expressing their concerns that the installation status report does not
provide an accurate picture of the mission readiness of installations
and suggested steps Army headquarters should take to ensure this system
is more useful. On the basis of our review of summary data from the
encroachment conditions module, we believe that discrepancies exist
between the data on encroachment restrictions and the actual areas
available for training at Fort Lewis, Washington, and Fort Stewart,
Georgia. According to Army officials, at the time of our visits to
these installations, the Army was in the process of working with
installation officials to ensure that these data were accurate and
current enough to enable decision makers to plan training events.
Navy's Encroachment Database:
The Navy has an effort underway to develop a web-oriented installation
and range encroachment database that will assist it in identifying how
encroachment factors affect unit training on its training ranges across
the United States. For example, in August 2006 the Navy completed the
initial development of a Navy-wide encroachment database to include
encroachment issues identified by installations, ranges, and commands
throughout the Navy. The Navy intends to finalize database development
and link this information to its established repositories in order to
begin generating reports for Congress. The Navy expects to have a user-
friendly database available for use on its installations and ranges by
June 2008.
Marine Corp's Training and Range Encroachment Information System:
The Marine Corp's Training and Range Encroachment Information System
was developed as a part of an encroachment quantification study done at
Marine Corps Base Camp Pendleton in 2003. This system is a tool
intended to assess an installation's ability to support required
training, rather than assess the readiness of an individual Marine or
Marine unit going through the training. According to Marine Corps
officials, this system represents a prototype solution for collecting
and quantifying encroachment effects that has the potential to be
applied to other Marine Corps ranges and bases. However, according to
these officials, this system has not been fielded and implemented
across the Marine Corps because of questions about the amount of
resources that would be required. As a result, Marine Corps officials
have stated that more work needs to be done before this system will be
released.
Air Force's Natural Infrastructure Assessment Tool:
In January 2008 the Air Force completed the development of its Natural
Infrastructure Assessment Guide, which will provide Air Force
leadership with a tool to manage the encroachment factors affecting its
training ranges. This assessment tool will assist installation
commanders in effectively managing their natural infrastructure, such
as air space, through the identification of deficiencies and
opportunities, correlated to affected operation, to enhance operational
sustainability. This tool will also establish baseline information
using a set of quantitative and qualitative measures that provide a
comparison of needed resources to available resources, and will
identify the incompatibilities and constraints on air, space, land, and
water resources resulting from environmental encroachment pressures
such as environmental restrictions.
DOD's Use of Exemptions Has Allowed Some Training Activities to
Continue and Enabled Others to Avoid Potential Delays:
DOD has used the exemptions from the Marine Mammal Protection Act and
Migratory Bird Treaty Act to continue to conduct training activities
that might otherwise have been prohibited, delayed, or canceled, and
the Endangered Species Act exemptions have enabled DOD to avoid
potential training delays by providing it greater autonomy in managing
its training lands. The Navy has twice invoked exemptions from the
Marine Mammal Protection Act to continue using mid-frequency active
sonar in its training exercises that would otherwise have been
prevented. DOD's exemption to the Migratory Bird Treaty Act eliminated
the possibility of having to cancel military training exercises, such
as Navy live-fire training exercises at the Farallon de Medinilla
Target Range in the Pacific Ocean. The Endangered Species Act revisions
provide that FWS consider the impact to national security when
designating critical habitat on DOD lands and provide alternatives to
critical habitat designation.
DOD's Marine Mammal Protection Act Exemption Has Twice Allowed the Navy
to Continue Mid-Frequency Active Sonar Training Activities:
Since 2006, the Navy has twice invoked its exemption from the Marine
Mammal Protection Act to continue using mid-frequency active sonar
technology in military training exercises, which would have otherwise
been prevented by the law's protection of marine mammals, such as
whales and dolphins that may be affected by the technology. In both
cases, DOD granted the exemption after conferring with the Secretary of
Commerce, upon a determination that the use of mid-frequency active
sonar was necessary for national defense.
Mid-frequency active sonar is used by the Navy to detect hostile
diesel-powered submarines used by the nation's adversaries. According
to Navy officials, the use of mid-frequency active sonar is a vital
component of its underwater submarine warfare training program. Without
these exemptions the Navy would have been prevented from using sonar
technology during its training exercises, potentially causing a
readiness issue within the Navy. For example, during the 2006
multinational Rim of the Pacific training exercise, which was conducted
near the Hawaiian Islands, the Navy was prohibited from using mid-
frequency active sonar for 3 days because of an injunction imposed
concerning the effects the sonar could have on the marine mammals. In
June 2006, DOD granted the Navy a six-month exemption from the Marine
Mammal Protection Act for all military readiness activities that use
mid-frequency active sonar during major training exercises or within
established DOD maritime ranges or operating areas. In January 2007,
DOD granted a two-year exemption for these same activities. However,
during both exemption periods, DOD was and is required to employ
mitigation measures developed with and supported by the National Marine
Fisheries Service. According to DOD officials, the two-year period
provides the Navy the time needed to develop its environmental impact
statements for ranges where mid-frequency sonar is used.
Although DOD granted the Navy an exemption to the Marine Mammal
Protection Act to continue its training exercises, Navy officials told
us that the primary reason it would have been prevented from using
sonar technology was because it had not prepared an environmental
impact statement for its training locations that use mid-frequency
active sonar during training exercises. Under the National
Environmental Policy Act of 1969 (NEPA), agencies evaluate the likely
environmental effects of projects they are proposing using an
environmental assessment or, if the projects likely would significantly
affect the environment, a more detailed environmental impact statement.
In addition, the Marine Mammal Protection Act requires consultation
between DOD and the National Marine Fisheries Service to determine the
impact on marine mammals when conducting military readiness activities.
According to NRDC, an NGO that filed suit against the Navy to prevent
it from using its sonar technology, the Navy failed to prepare an
environmental impact statement and proper mitigation strategies in
advance of using its sonar technology. NRDC is concerned that the use
of mid-frequency active sonar has had a detrimental effect on marine
mammals in the nation's oceans and waterways. Thus, it is the NRDC's
view that until the Navy prepares the required environmental
documentation and implements appropriate mitigation measures, these
sonar activities should be stopped. The Navy has prepared notices of
intent to prepare environmental impact statements for 12 ranges and
operational areas. According to Navy officials, all 12 environmental
impact statements will be completed, and the Navy is expected to be in
compliance with the Marine Mammal Protection Act by the end of calendar
year 2009.[Footnote 38]
DOD Used the Migratory Bird Treaty Act Exemption to Help the Navy
Accomplish Live-Fire Training:
DOD's exemption to the Migratory Bird Treaty Act authorizing the
incidental taking of migratory birds during military readiness
activities eliminated the possibility of having to delay or cancel
military training exercises. In response to litigation in 2000 and
2002, DOD became concerned that environmental advocates could initiate
further litigation against the department, causing delays or
cancellation of future training activities. For example, in March 2002,
in response to a lawsuit brought by the Center for Biological
Diversity, a federal district court ruled that Navy training exercises
at the Farallon de Medinilla Target Range within the Mariana Islands in
the Pacific Ocean, which resulted in the incidental taking of migratory
birds, violated the Migratory Bird Treaty Act.
The 2003 enactment of DOD's exemption changed the Migratory Bird Treaty
Act to allow DOD to conduct military readiness exercises that may
result in incidental takings of migratory birds without violating the
act. DOD officials we spoke to told us that the exemption has not
affected how training activities are conducted; rather, it codified and
clarified how the act would be applied to military training missions,
and it enabled DOD to avoid potential legal action that could have
significantly affected training and readiness exercises at Farallon de
Medinilla and other DOD installations. According to officials we met
with during our visits to other installations with migratory bird
populations, training activities at those locations generally do not
affect migratory birds.
Endangered Species Act Exemption Provides DOD More Autonomy over the
Management of Its Training Lands:
The Endangered Species Act exemption has enabled DOD to avoid potential
training delays by providing it greater autonomy in managing its
training lands. The exemption, enacted in the fiscal year 2004 defense
authorization act, provides DOD two means of avoiding critical habitat
for threatened or endangered species designated on its lands by the
FWS. One method of avoiding critical habitat designation for the
endangered or threatened species found on its land is through the use
of an approved integrated natural resources management plan,[Footnote
39] which the FWS or the National Marines Fisheries Service agrees
provides a benefit to the species. According to DOD officials, these
management plans provide it with the flexibility needed to perform
readiness activities while simultaneously protecting the natural
resources located on its installations. Secondly, in a case where
critical habitat designation is proposed on a military installation,
DOD can request the Secretary of the Interior take into consideration
whether national security concerns outweigh the benefits of the
designation.
Although FWS officials stated that these exemptions codified their
practice of generally not designating critical habitat on military
lands when the lands were managed under appropriate conservation plan,
DOD officials believed the department needed these them to avoid future
designations that could restrict its training lands and cause potential
delays in training while the required administrative consultations with
FWS are completed. According to DOD officials, not having critical
habitat designated for endangered or threatened species found on
military lands gives DOD more flexibility and greater autonomy over the
management of its lands used for its training activities. However,
according to FWS officials, critical habitat designations would only
require an additional level of consultation, which would have had very
minimal, if any, effect on DOD's ability to use its lands for training
purposes. DOD officials said that the increased level of consultation
required between the department and outside stakeholders, such as the
FWS, would take away the time and resources required to plan and
execute its training activities. Furthermore, according to DOD
officials, growth in endangered species populations on some
installations has increased the challenges they face in completing
their required training activities while simultaneously protecting the
species and their habitats. In addition, some range managers and
trainers at installations we visited said that they believe that
designating critical habitat on military lands could require them to
avoid using critical habitat areas, which would take away potentially
valuable training areas. However, now that DOD has the authority to use
its approved integrated natural resources management plans, which are
ultimately approved by the FWS, in lieu of critical habitat
designation, trainers and range managers feel less restricted from
using their training ranges.
Endangered Species and Migratory Bird Act Exemptions Have Not Adversely
Affected the Environment, and the Effect of the Marine Mammal
Protection Act Exemption Has Not Been Determined:
On the basis of meetings with officials within and outside DOD and
visits to 17 training ranges, we found no instances where DOD's use of
exemptions from the Endangered Species Act or Migratory Bird Treaty Act
has adversely affected the environment; however, the impact of the
Marine Mammal Protection Act exemption has not yet been determined. We
found no instances where DOD's use of the Endangered Species Act
exemption has negatively affected populations of endangered or
threatened species. Moreover, the services employ a variety of measures
and conservation activities to mitigate the effects of training
activities on endangered species, some of which have helped to increase
the populations of certain endangered species. However, NGO officials
we spoke with were concerned that DOD's use of its integrated natural
resources management plans in lieu of critical habitat designations may
weaken oversight of endangered species found on military lands.
Similarly, we found no instances where DOD's use of the Migratory Bird
Treaty Act exemption has significantly affected the populations of
migratory birds. However, the overall effect of the Navy's use of mid-
frequency active sonar on marine mammals protected under the Marine
Mammal Protection Act is unclear and is still being studied.
DOD's Use of the Endangered Species Act Exemptions Have Not Adversely
Affected Species Populations:
DOD, federal regulatory agency, and NGO officials, and officials at the
military training ranges we visited said that there were no instances
where DOD's use of the Endangered Species Act exemptions have adversely
affected the populations of endangered or threatened species. Moreover,
the services employ a variety of measures and conservation activities
to mitigate the effects of their training activities on endangered
species populations on their lands. We also found instances where DOD
environmental stewardship of its natural resources have achieved some
positive results with regard to increases in the population of certain
endangered species. In addition, FWS officials told us that DOD has
taken positive steps to manage and preserve its natural resources and
provided several examples of DOD's proactive steps to manage threatened
or candidate species.
Services Employ Measures to Mitigate Effects of Training on Endangered
Species:
The services have taken steps on their installations to minimize the
effects of their training activities on their endangered species
populations, as the following examples illustrate.
* At Camp Lejeune, North Carolina, nests for the threatened green sea
turtle and Atlantic loggerhead turtle are relocated away from training
beaches by Camp Lejeune environmental management personnel.
* At Yakima Training Center, Washington, endangered fish species are
protected by the installation declaring aquatic and riparian habitat
off limits to all but foot traffic except at hardened crossings, such
as bridges.
* At the Barry M. Goldwater Range, Arizona, range officials employ
spotters to ensure that resident endangered Sonoran pronghorn are not
present in munitions impact areas prior to exercises.
DOD's Stewardship of Natural Resources Has Achieved Some Positive
Results:
DOD's management of its natural resources has achieved some positive
results with increases in the population of certain endangered species.
At five of the installations we visited, we were provided data that
showed an increase in the populations of three endangered species, as
the following examples illustrate.
* Red-Cockaded Woodpecker Since the mid-1990s, the red-cockaded
woodpecker populations at Fort Stewart, Georgia, and Eglin Air Force
Base, Florida, have increased. In addition, Fort Stewart has served as
a source of red-cockaded woodpeckers for repopulation efforts on
nonmilitary lands. Figure 2 shows trend data and projected increases in
red-cockaded woodpecker potential breeding groups[Footnote 40] from
calendar year 1994 through calendar year 2016 for Fort Stewart and
Eglin Air Force Base. On the basis of the data, Fort Stewart and Eglin
Air Force Base are both projected to meet their recovery goals of 350
potential breeding groups by 2011.
Figure 2: Increase in Red-Cockaded Woodpecker Potential Breeding Groups
at Fort Stewart and Eglin Air Force Base (1994 through 2016):
[See PDF for image]
This figure is a multiple line graph depicting the Increase in Red-
Cockaded Woodpecker Potential Breeding Groups at Fort Stewart and Eglin
Air Force Base (1994 through 2016). The vertical axis of the graph
represents number of potential breeding groups from 0 to 500. The
horizontal axis of the graph represents fiscal years from 1994 to 2016.
A recovery goal of 350 potential breeding groups is a constant
throughout every fiscal year. Lines depict the number of breeding
groups at two sites: Eglin AFB and Ft. Stewart. Both show a steady
increase. In 1994 Eglin shows approximately 175 breeding groups, and
projects to have over 400 by 2016. Ft. Stewart shows about 150 breeding
groups in 1997, projecting to about 450 by 2016.
Source: GAO's analysis of Army and Air Force data.
[End of figure]
* Loggerhead Shrike At Naval Base Coronado, San Clemente Island,
California, the Navy, in partnership with FWS and the San Diego Zoo,
has developed a captive breeding program that has increased the
population of the Loggerhead Shrike, an endangered bird species, on San
Clemente Island. This endangered bird population has increased from
approximately 18 in 2000 to more than 88 in 2007 due partly to this
conservation measure. According to the environmental planner for San
Clemente Island, approximately 60 birds are retained for breeding
purposes, while all other birds are released once it is determined that
they can survive in the wild. Figure 3 shows a Loggerhead Shrike
captive breeding facility.
Figure 3: The Loggerhead Shrike Captive Breeding Facility at Naval Base
Coronado, San Clemente Island, California:
[See PDF for image]
This figure is a photograph of the Loggerhead Shrike Captive Breeding
Facility at Naval Base Coronado, San Clemente Island, California.
Source: GAO.
[End of figure]
* Sonoran Pronghorn According to data from the Arizona Game and Fish
Department provided to us by Air Force officials, there were 68 Sonoran
pronghorn, an endangered species, on the Barry M. Goldwater Range as of
December 2006, up from an estimated 58 pronghorn in 2004. Air Force
officials also provided us with information on pronghorn recovery
efforts, which include a semicaptive breeding program located at the
Cabeza Prieta National Wildlife Refuge. Air Force officials told us
that semicaptive breeding is an important component of their recovery
effort. Officials said they plan to release up to 20 captivity-bred
animals annually beginning in 2008. Air Force officials told us that
the creation of artificial forage enhancement plots are a key component
in enhancing pronghorn survivability during periods of drought.
Additionally, these officials said they locate these plots away from
target areas to minimize the impact of training activities on the
pronghorn population.
DOD's Proactive Management of Threatened Species and Species Being
Considered for Protection:
FWS officials told us that DOD has taken positive steps to manage and
preserve its natural resources and has been proactive in the management
of its threatened species and species being considered for protection
under the Endangered Species Act, as the following examples illustrate.
* Fort Carson, Colorado, provided a dedicated area for the threatened
Greenback Cutthroat Trout that affords eggs for restoration efforts,
opportunities for research, and recreational fishing opportunities for
soldiers. In addition, Fort Carson participated in and funded research
on American peregrine falcons (a recovered species) and threatened
Mexican spotted owls that seasonally use the installation.
* Fort Wainwright, Alaska, worked to identify areas where the
installation lacked natural resource data (e.g. fish species abundance
and diversity in streams and spawning areas), and with assistance from
the FWS, then linked projects to achieve its goal of collecting the
needed resource data.
* The U.S. Air Force Academy, Colorado, holds most of the remaining
Arkansas River drainage population of the threatened Preble's Meadow
Jumping Mouse. The Academy is represented on the recovery team, has
funded tasks identified in the recovery team draft plan, and has
conducted and funded research on the monitoring of habitat and
populations.
NGOs Have Expressed Concerns about Oversight of Endangered Species on
Military Lands:
Although the NGOs we spoke with varied in their opinions about the
effectiveness of DOD's use of integrated natural resources management
plans in lieu of critical habitat designations, all of the officials we
spoke with were concerned about the extent to which the FWS would be
able to exercise its regulatory authority under the Endangered Species
Act, thus weakening its oversight of the management, protection, and
preservation of endangered species found on military lands.
Furthermore, officials from these organizations expressed concerns that
the exemption could safeguard DOD from potential litigation involving
critical habitat designation and lessens the public's ability to
comment on how DOD plans to manage the endangered species located on
its installations.
DOD installation officials responsible for developing the department's
natural resources management plans acknowledged changes in the public
comment process from the one traditionally used when a critical habitat
designation is proposed. These officials also stated that they publicly
announce the development or revision of these management plans, notify
local conservation groups of the development or revision of the
management plans to ensure their views are taken into consideration
during the process, and take all public comments under consideration
when finalizing the management plans.
Officials from various NGOs had differing opinions on DOD's use of its
integrated natural resources management plans to protect and preserve
endangered species on military land, and some were concerned that DOD's
use of these plans in lieu of critical habitat designation may weaken
the oversight FWS has under the Endangered Species Act, as the
following examples illustrate.
* Officials of the Public Employees for Environmental Responsibility
(PEER)--a national nonprofit alliance of federal, state, and resource
employees--and the Endangered Species Coalition--a nonpartisan
organization focused on endangered species issues--were generally
satisfied with DOD's efforts to protect endangered species on its
installations, and stated that DOD's implementation of its integrated
natural resources management plans appeared to be an effective tool for
managing its natural resources.
* Officials of the Center for Biological Diversity--a nonprofit
organization focusing on species and habitat conservation--questioned
whether allowing DOD to take the lead on endangered species management
on its own lands was the best strategy. One official from the Center
for Biological Diversity stated that, unlike critical habitat
designation, integrated natural resources management plans would only
provide a limited benefit to endangered species and implementation of
these plans vary by installation. Additionally, this official stated
that the formal process of designating critical habitat provides more
comprehensive protection and benefit to endangered species.
* Officials of NRDC stated that DOD's management plans are not an
adequate substitute for critical habitat designation because the
quality of the plans varies, the successful implementation of the plan
is largely dependent on an installation's leadership, and there are no
quantifiable, measurable goals that can be enforced.
DOD officials told us that they view integrated natural resources
management plans as a tool focused on the management of an ecosystem as
opposed to a tool for managing individual species. In addition,
according to DOD officials, these management plans are a more cost
effective way to manage an installation's natural resources and reduce
the likelihood of a significant adverse impact on species. None of the
NGO officials we interviewed could provide us with data to illustrate
that DOD's use of an integrated natural resources management plan has
caused an endangered species population to decline or harmed their
habitat.
Use of the Migratory Bird Treaty Act Exemption Has Not Significantly
Affected Bird Populations:
DOD, federal regulatory agencies, and NGO officials, and officials at
the military training ranges we visited all said that there were no
instances where DOD's use of the Migratory Bird Treaty Act exemption
has significantly affected the populations of migratory birds. Since
February 2007, when FWS issued the final rule authorizing incidental
takings of migratory birds during military readiness activities,
officials from DOD nor FWS were not able to provide instances where a
military training activity was assessed and determined to have a
significant adverse effect on a migratory bird population. In addition,
DOD employs various measures to mitigate the potential impact of its
training activities on migratory bird populations. For example, Navy
officials told us that an additional zone was established in which only
inert munitions may be used, which is located directly below a no bomb
zone at Farallon de Medinilla Target Range within the Mariana Islands,
as an additional mitigation measure for the island's migratory bird
population. In addition, at Naval Air Station Fallon, Nevada, aircraft
maintain a minimum altitude of 3,000 feet when flying above the
Stillwater National Wildlife Refuge to avoid migratory bird
populations.
Effects of Mid-Frequency Active Sonar on Marine Mammals Are Unclear and
Are Still Being Studied:
The effects of the Navy's use of mid-frequency active sonar on marine
mammals protected under the Marine Mammal Protection Act are unclear
and are still being studied. The Navy, in conjunction with external
researchers, is conducting studies in an attempt to determine the
effects mid-frequency active sonar has on marine mammals. According to
documents provided to us by Navy officials, differing interpretations
of scientific studies on behavioral changes among marine mammal
populations have complicated compliance with the Marine Mammal
Protection Act. Thus, additional coordination between the Navy and the
National Marine Fisheries Service is required to resolve the regulatory
uncertainty as to the "biological significance" of the effects of mid-
frequency active sonar on marine mammals. The Navy employs mitigation
measures, such as establishing marine mammal lookouts, ensuring there
are no marine mammals within a certain radius of ships using sonar, and
reducing the power of the ships' sonar systems to lessen the possible
impact mid-frequency active sonar may have on the marine mammal
populations. The Navy has also begun reporting stranded marine mammals
to the National Marine Fisheries Service. National Marine Fisheries
Service officials have characterized their working relationship with
the Navy as collaborative and constructive in that they have the
opportunity to review and comment on the effectiveness of the Navy's
mitigation measures, such as the adequacy of the training that marine
mammal lookouts receive. These measures are in effect during the 2-year
period beginning in January 2007 in which mid-frequency active sonar
activities are exempt from the Marine Mammal Protection Act.
In its February 2008 report to Congress,[Footnote 41] the Navy stated
that in 2007 it had completed 12 major training exercises employing
mid-frequency active sonar and found no marine animals within the range
of injury (10 meters) of any transmitting vessel during these
exercises. The Navy requires that units participating in these major
exercises report the number of marine mammals sighted while these
exercises are conducted. If a marine mammal is sighted, participating
ships, submarines, and aircraft are required to report the date, time,
distance from unit, and action taken by the unit, if any. On the basis
of the results of the after-action reports for these exercises, the
Navy concluded that the various training activities did not kill or
injure any marine mammals. Although the Navy acknowledges that it is
not possible to account for the mammals that were not observed, it also
noted that the low number of marine mammal sightings qualitatively
indicates that the likelihood of an effect on the population level of
any marine mammal species is further reduced.
However, NGO officials have told us they believe that the Navy's
mitigation measures are insufficient, and they do not believe that the
Navy has adequately quantified the impact of prohibitions on sonar on
its ability to train. Additionally, according to NRDC representatives,
a report completed in 2004 by a scientific committee of leading whale
biologists established by the International Whaling Commission, has
convincing and overwhelming results linking mid-frequency active sonar
with the deaths of beaked whales. These officials are also uncertain
whether the Navy would be in compliance with the Marine Mammal
Protection Act when the exemption expires in January 2009. Further,
these NGO representatives acknowledged that the nature of certain
marine mammal populations creates difficulties in establishing a
scientific basis for the effects of mid-frequency active sonar on
marine mammals. DOD acknowledges that, under certain circumstances and
conditions, exposure to mid-frequency active sonar may have an effect
upon certain species, but the causal connection between whale
strandings and exposure to mid-frequency active sonar is not known.
DOD Has Not Presented a Sound Business Case for the Three Proposed
Exemptions:
DOD has not presented a sound business case demonstrating a need for
the proposed exemptions from the Clean Air Act, RCRA, and CERCLA to
help achieve its training and readiness requirements. DOD has outlined
some anticipated benefits of the proposed exemptions and has provided
Congress with a description of the features and scope of its Readiness
and Range Preservation Initiative, but the department has not made a
sound business case testing these assertions or provided any specific
instances in which the movement of forces or equipment, training on an
operational range, or its use of munitions on an operational range has
been hindered by the requirements of the Clean Air Act, RCRA, or
CERCLA, respectively. Therefore, Congress lacks a sound basis for
assessing the need to enact the three remaining proposed exemptions.
DOD Has Presented Some Elements of a Business Case but Has Not
Demonstrated a Need for the Remaining Exemptions:
DOD has not presented a sound business case demonstrating a need for
the remaining three exemptions proposed in its Readiness and Range
Preservation Initiative. In order to advise decision makers on a
proposed project, policy or program, best practices and our prior work
recommend that agencies develop a business case whereby they can assess
and demonstrate the viability of proposed initiatives. A business case
is a substantiated argument that includes, among other things, the
problem or situation addressed by the proposal, the features and scope
of the proposed initiative, the anticipated outcomes and benefits, the
options considered and the rationale for choosing the solution
proposed, the expected costs, and the expected risks associated with
the proposal's implementation. DOD presented the features and scope of
the three remaining Readiness and Range Preservation Initiative
provisions in proposed language for the fiscal year 2008 defense
authorization bill[Footnote 42]. DOD officials also outlined some
possible benefits of the proposed exemptions. For example, in its 2006
annual sustainable ranges report,[Footnote 43] DOD stated that without
these additional exemptions the department was vulnerable to legal
challenges that could threaten its ability to use operational ranges
for readiness training and testing. DOD officials also stated that some
possible benefits of the proposed exemptions include facilitating (1)
the movement of forces and equipment, (2) training on an operational
range, and (3) the use of munitions on an operational range. However,
DOD has not provided any of the other elements of a sound business
case.
Proposed Clean Air Act Exemption:
According to DOD officials, the proposed exemption from requirements of
the Clean Air Act would provide the department flexibility in replacing
or realigning forces and equipment in nonattainment areas,[Footnote 44]
which do not meet certain EPA air quality standards, but they have not
provided evidence to support the need for the exemption. Moreover, DOD
could not cite any case where Clean Air Act requirements prohibited the
movement of troops or equipment into nonattainment areas. OSD's Office
of General Counsel officials told us that the Clean Air Act provision
grew out of the 1995 base realignment and closure round, when the
movement of aircraft into these areas became a problem. For the 2005
base closure round, OSD asked the services if moving activities into
nonattainment areas would be an issue, and the answer was that it would
not be. In its 2006 report on sustainable ranges, DOD stated that,
while the Clean Air Act's general conformity requirement had the
potential to threaten the deployment of new weapon systems, the
requirement had not yet prevented any military readiness activities.
Officials of state and local agencies, and NGOs, such as the Center for
Public Environmental Oversight (CPEO),[Footnote 45] NRDC, and PEER,
have expressed concern that the proposed exemptions could increase air
pollution and potentially result in greater contamination, higher
cleanup costs, and a threat to human health. Opponents of DOD's
proposed exemptions from the Clean Air Act include state and local air
pollution control program officials, state environmental
commissioners, state attorneys general, county and municipal
governments, and environmental advocates. They contended that granting
the exemption could increase air pollution, posing a threat to human
health. Opponents also claimed that the proposed exemption is
unnecessary as the Clean Air Act already contains a provision that
would allow DOD to request a case-by-case exemption if necessary, which
DOD has never invoked. In addition, an EPA official we spoke with
expressed similar concerns about the proposed Clean Air Act exemption.
He also stated that because DOD has an extensive planning process, and
readiness activities are generally planned ahead, DOD should have time
to mitigate the emissions, or work with the states to establish a
budget within the states' implementation plans so that an exemption to
the Clean Air Act would not be needed.
Proposed RCRA Exemption:
According to DOD's 2006 sustainable ranges report, existing ambiguity
over whether the RCRA definition of "solid waste" is applicable to
military munitions located on operational ranges had generated
litigation by private plaintiffs seeking to curtail or terminate
munitions-related training at operational ranges. The report also
asserted that future litigation of this nature, if successful, could
force remediation at operational ranges, effectively precluding live-
fire training. However, DOD was not able to provide any examples of
where a private citizen's RCRA lawsuit had affected training on an
operational range. Although live-fire training restrictions have been
imposed at the Eagle River Flats Impact Area at Fort Richardson,
Alaska, the restrictions were not the result of any litigation. The
Army imposed the firing restrictions in 1991 following completion of an
environmental assessment that established a link between firing
munitions containing white phosphorus and waterfowl mortality at Eagle
River Flats. We discussed DOD's concerns about RCRA and the definition
of "solid waste" with officials of EPA's Office of Federal Facilities
Enforcement and Office of Federal Facilities and Restoration. These
officials told us that, to address DOD's concerns, EPA developed the
1997 Military Munitions Rule, which states that military munitions are
not considered to be solid waste when they are used for their intended
purpose on an operational range. The EPA officials also said that to
date they have never required DOD to clean up an operational range,
unless contamination is migrating off the range, which could occur
through polluted groundwater.
With regard to the proposed exemption from RCRA, opponents have
included state attorneys general and NGOs such as CPEO, NRDC, and PEER.
They have asserted that granting DOD the exemptions could weaken
federal and state oversight. Specifically, in written comments to the
Office of Management and Budget on DOD's 2004 legislative proposals for
the National Defense Authorization Act, EPA stated that it was
concerned that the exemptions would result in states' oversight
agencies having to wait for human health and environmental effects to
occur beyond the boundaries of the operational range before taking
action. This delay could increase the costs and time to respond. Other
organizations expressed similar concerns about the exemptions
preempting federal or state authority. The opponents also noted that
the exemptions were not needed, as RCRA contains national security
provisions allowing the President to exempt DOD facilities from any
statutory or regulatory authority on a case-by-case basis. However, DOD
has not invoked this case-by-case exemption for training or readiness-
related activities.[Footnote 46]
Proposed CERCLA Exemption:
DOD officials said the department is concerned that the firing of
munitions on operational ranges could be considered a "release" under
CERCLA, which could then trigger CERCLA requirements that would require
removal or remedial actions on operational ranges. However, DOD
officials could not provide any examples of when this had actually
occurred. On the contrary, DOD officials told us that EPA and the
states generally do not seek to regulate the use of munitions on
operational ranges under RCRA or CERCLA. Cognizant EPA officials also
told us that EPA generally did not impose regulatory requirements on
operational ranges. Further, EPA, in written comments to the Office of
Management and Budget on DOD's 2004 legislative proposals for the
National Defense Authorization Act, stated that it had been judicious
in the use of the various authorities it has over operational ranges.
Opponents from states and NGOs such as CPEO, NRDC, and PEER, have
similar concerns with DOD's proposed exemption from CERCLA as they do
with the RCRA exemption discussed previously. They contend that
granting DOD the exemptions could weaken federal and state oversight
and may delay any remediation action. They also note that the proposed
exemption is not needed, as CERCLA contains a case-by-case exemption,
which has not been invoked by DOD. In addition, similar concerns were
expressed by EPA in its written comments to the Office of Management
and Budget on DOD's 2004 legislative proposals for the National Defense
Authorization Act.
Congress Lacks a Sound Basis for Assessing the Need to Enact the Three
Proposed Exemptions:
Because DOD has not provided any specific examples to support
assertions that its training activities have been hindered by the
requirements of the Clean Air Act, RCRA, or CERCLA, Congress lacks a
sound basis for assessing the need to enact these three remaining
exemptions. Also, DOD has not demonstrated that it considered any other
options that could provide the benefits it desires. Nor has the
department provided any data related to the expected costs and risks--
financial, environmental, or otherwise--of the proposed exemptions.
Similarly, DOD has not demonstrated the cost of any workarounds
necessitated by the need to comply with the Clean Air Act, RCRA, or
CERCLA, and it has thus far not been able to show any risks to military
readiness or national security if the exemptions are not granted. Until
DOD develops a substantiated argument in support of its proposed
exemptions from the Clean Air Act, RCRA, and CERCLA, it will have
little on which to base these requests.
Conclusions:
DOD's commitment to being a good neighbor to the communities where many
servicemembers and their families live, the desire to avoid litigation,
and the need to maintain its training areas in good condition provide
DOD with incentives to be a good environmental steward. In addition,
there is little evidence to suggest that the exemptions to
environmental laws that DOD has already been granted have had adverse
consequences for animal species or their habitat on military
installations. Nevertheless, there is also little evidence to support
the position that providing DOD additional environmental exemptions,
such as those that have been proposed from provisions of the Clean Air
Act, RCRA, and CERCLA, would benefit DOD training activities or improve
military readiness. Without a sound business case that demonstrates the
benefits and adverse effects on training and readiness, costs, and risk
associated with the proposed exemptions, DOD will have little on which
to base any further requests, and Congress will have difficulty
determining whether additional exemptions from environmental laws are
warranted.
Recommendation for Executive Action:
Should DOD plan to pursue exemptions from the Clean Air Act, RCRA,
CERCLA, or other environmental laws in the future, we recommend that
the Secretary of Defense direct the Deputy Under Secretary of Defense
for Installations and Environment and the Deputy Under Secretary of
Defense for Readiness to jointly develop a sound business case that
includes detailed qualitative and quantitative analyses assessing the
associated benefits, costs, and risks of the proposed exemptions from
environmental laws.
Agency Comments and Our Evaluation:
In written comments on a draft of this report, the Principal Deputy
within the Office of the Under Secretary of Defense for Personnel and
Readiness partially concurred with our recommendation, agreeing that a
sound business case with good qualitative and quantitative analysis
should be developed in association with future environmental
provisions. However, DOD believes that past provisions involving
clarifications to environmental laws were largely supported with the
rationale and supporting information necessary to constitute a sound
business case and does not accept the premise that the readiness and
training imperatives or associated risks were not conveyed to the
extent feasible for the Clean Air Act, RCRA, and CERCLA provisions. As
our report clearly stated, DOD has not provided any specific examples
to support its assertions that its training activities have been
hindered by the requirements of the Clean Air Act, RCRA, or CERCLA.
Also, DOD has not demonstrated that it considered any other options
that could provide the benefits it desires. Nor has the department
provided any data related to the expected costs and risks--financial,
environmental, or otherwise--of the proposed exemptions. Our report
does not discuss the rationale and information used to support past
provisions. We continue to believe that DOD has not provided adequate
support for its assertion that its training activities have been
hindered by the requirements of the Clean Air Act, RCRA, and CERCLA. We
stand by our recommendation that DOD needs to present a sound business
case, including associated benefits, costs, and risks should it pursue
future exemptions from these or other environmental laws.
DOD strongly disagreed with our use of the term "exemptions" as applied
to its Readiness and Range Preservation Initiative, which it believes
unnecessarily reinforces the perception that DOD has sought to avoid
its environmental stewardship responsibilities. First, the term
"exemption" is not defined in the body of environmental law relevant to
this report. Our intent is to use a single term throughout the report
for consistency and readability, although we recognize that each of the
Readiness and Range Preservation Initiative provisions affect change by
various means in various environmental laws. We describe each of those
provisions on pages 2 and 3, pages 13 through 17, and in footnotes 6
through 12. Second, our report acknowledges that DOD's environmental
stewardship of its natural resources has achieved positive results and
that it has been proactive in its management of endangered and
threatened species.
DOD's comments are reprinted in appendix II. DOD also provided
technical comments, which we have incorporated into the report as
appropriate.
We are sending copies of this report to the appropriate congressional
committees. We are also sending copies to the Secretaries of Defense,
Commerce, and the Interior; the Administrator of the Environmental
Protection Agency; the Secretaries of the Army, the Navy, and the Air
Force; the Commandant of the Marine Corps; and the Director, Office of
Management and Budget. Copies will be made available to others upon
request. In addition, this report will be available at no charge on our
Web site at [hyperlink, http://www.gao.gov].
If you or your staff have any questions regarding this report, please
contact me at (202) 512-4523 or leporeb@gao.gov. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. GAO staff who made key contributions to
this report are listed in appendix III.
Signed by:
Brian J. Lepore, Director:
Defense Capabilities and Management:
[End of section]
Appendix I: Scope and Methodology:
To determine the effects, if any, of environmental laws and the
Department of Defense's (DOD) use of exemptions to the Migratory Bird
Treaty Act,[Footnote 47] the Marine Mammal Protection Act,[Footnote 48]
and the Endangered Species Act[Footnote 49]on training activities and
military readiness, we judgmentally selected and visited 17 military
training locations throughout the continental United States, which
included training sites from each military service component, to
directly observe the effects of environmental laws and DOD's use of
exemptions on training activities, military readiness, and the
environment. These locations included Aberdeen Proving Ground,
Maryland; Fort Lewis, Washington; Fort Stewart, Georgia; Naval Station
Norfolk, Naval Air Station Oceana, and Dam Neck Annex, Virginia; Naval
Air Station Fallon, Nevada; Fort Irwin, Naval Base Coronado, Naval Air
Station North Island, Naval Auxiliary Landing Field San Clemente
Island, and Marine Corps Base Camp Pendleton, California; Marine Corps
Base Camp Lejeune, North Carolina; Avon Park Air Force Range and Eglin
Air Force Base, Florida; and Luke Air Force Base and Barry M. Goldwater
Range, Arizona. These installations were identified and selected based
on our previous work involving some installations experiencing
encroachment and sustainable training range issues. DOD concurred that
the installations we selected continue to have problems in this area
and stated that these locations would provide an important perspective
of some of the challenges DOD faces to comply with environmental laws.
Because the installations were judgmentally selected, the specific
challenges faced at these selected locations can not be generalized
across all of DOD. We obtained documents and reports describing the
effects of environmental laws and exemptions on training and readiness
and the need for workarounds to meet training requirements from DOD
officials responsible for managing military training. We compared and
contrasted data on training requirements with actual training
activities to identify examples--in terms of the number of training
days, types of training activities, unit readiness ratings, and costs-
-where training was affected by environmental requirements and DOD's
use of environmental exemptions. We also met with service officials
responsible for managing readiness data for each service. These
officials provided us with unit readiness data for fiscal years 2006
and 2007, which included some commander comment summaries describing,
when applicable, why a unit had not met its unit training requirements.
Our review of these data allowed us to assess whether environmental
restrictions imposed on DOD installations had an impact on unit
readiness. Furthermore, we conducted literature searches, and reviewed
studies completed by other audit agencies and research companies such
as the Congressional Research Service, the Center for Naval Analysis,
and the RAND Corporation, to review previous findings and conclusions
of how environmental laws may have affected military training and
readiness. In addition, we met with officials responsible for planning,
managing, and executing unit training to gain an understanding of how
these officials assisted military units to meet training requirements
while addressing environmental laws. We also met with officials from
the Office of the Secretary of Defense (OSD) and headquarters officials
from each of the military services to obtain their perspectives on the
effects of environmental laws and the use of environmental exemptions
on military training activities and readiness.
To determine the effects, if any, of DOD's use of exemptions from the
Migratory Bird Treaty Act, the Marine Mammal Protection Act, and the
Endangered Species Act on the environment, we visited the 17
installations mentioned, reviewed related reports and studies, and
examined some installations' integrated natural resources management
plans to determine how natural resources, such as migratory birds,
marine mammals, and endangered species and their habitats are protected
on DOD lands during military training exercises. We also met with
officials from other federal regulatory agencies, such as the U.S. Fish
and Wildlife Service, the National Marine Fisheries Service, and the
U.S. Environmental Protection Agency (EPA), to determine how these
regulatory agencies were overseeing and managing natural resource
conservation activities conducted on military training areas and to
obtain their perspective of how well DOD is doing in protecting its
natural resources. We also met with officials from OSD and service
offices, such as officials from the Office of the Under Secretary of
Defense for Personnel and Readiness; the Office of the Deputy Under
Secretary of Defense for Installations and Environment; the Office of
the General Counsel for Environment and Installations, OSD; the Deputy
Assistant Secretary of the Army for Environment, Safety and
Occupational Health; the Office of the Assistant Secretary of the Navy
for Installations and Environment; the Operational Environmental
Readiness and Planning Branch and the Training Ranges and Fleet
Readiness Branch, Chief of Naval Operations; the Environmental
Management Program Office, Headquarters U.S. Marine Corps; the Deputy
Assistant Secretary of the Air Force for Environment, Safety, and
Occupational Health; the Air Force Center for Engineering and the
Environment; and the Ranges and Air Space Division, Headquarters U.S.
Air Force. During these meetings, we discussed the statutory
environmental requirements DOD must follow when conducting military
training activities at its installations and training areas. To obtain
a balanced perspective on the progress DOD has achieved in managing
natural resources on its lands, we met with officials from
nongovernmental organizations, such as the Natural Resources Defense
Council (NRDC), Public Employees for Environmental Responsibility
(PEER), the Center for Biological Diversity, the Center for Public
Environmental Oversight, the Endangered Species Coalition, and the RAND
Corporation. These officials provided us with their perspective on how
well DOD has done in protecting the natural resources, such as
endangered species and their habitat located on DOD lands, migratory
birds, and marine mammals.
To assess the extent to which DOD has demonstrated that proposed
statutory exemptions from the Clean Air Act;[Footnote 50] Resource
Conservation and Recovery Act;[Footnote 51] and the Comprehensive
Environmental Response, Compensation, and Liability Act[Footnote 52]
would help the department to achieve its training and readiness goals,
we reviewed the department's most recent annual sustainable range
reports, its Readiness and Range Preservation Initiative, and other
documents for elements of a sound business case. In addition, we
reviewed documents that provided the perspective of federal and state
regulatory agencies, such as EPA, state and local air pollution control
program officials, state environmental commissioners, state attorneys
general, county and municipal governments, and nongovernmental
organizations, such as the Center for Public Environmental Oversight,
NRDC, and PEER, on the potential impact to the environment if these
exemptions were granted. We also discussed the topic with officials
from OSD, the military services, and EPA. During these meetings, we
discussed the potential benefits and problems associated with the
proposed statutory exemptions. During our visits to the military
installations identified previously, we also obtained military service
officials' perspectives on the potential effects of using the proposed
statutory exemptions on training activities, military readiness, and
the environment. Additionally, we compared the elements of a sound
business case and what DOD provided to Congress to assess whether DOD
had demonstrated a need for the three remaining exemptions.
On the basis of information obtained from the military services on the
reliability of their unit readiness data, our discussions with DOD,
military service, and NGO officials, and our review and analysis of
documents and reports describing the effects of environmental
requirements and statutory exemptions on training activities, military
readiness, and the environment, we believe that the data used in this
report are sufficiently reliable for our purposes. The time periods
encompassed by the data used in this report vary for each of our
objectives depending on the date ranges for which each type of data was
available. We conducted this performance audit from June 2007 through
March 2008 in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit
to obtain sufficient, appropriate evidence to provide a reasonable
basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our audit objectives.
[End of section]
Appendix II: Comments from the Department of Defense:
Office Of The Under Secretary Of Defense:
Personnel, And Readiness:
4000 Defense Pentagon:
Washington, DC 20301-4000:
March 5, 2008:
Mr. Brian J. Lepore:
Director, Defense Capabilities and Management:
U.S. Government Accountability Office:
Washington, D.C. 20548:
Dear Mr. Lepore:
This is the Department of Defense (DoD) response to the Government
Accountability Office Draft Report, "Military Training: Compliance with
Environmental Laws Affects Some Training Activities but DoD Has Not
Made a Sound Business Case for Additional Environmental Exemptions,"
dated February 8, 2008 (GAO Code 351050; GAO-08-407).
The Department appreciates the opportunity to comment on the draft
report. We also applaud the GAO's balanced approach to analyzing and
reporting on this complex issue. The GAO's recommendation that a sound
business case is a prerequisite when asking Congress for clarifications
of environmental or other law is valid, though we disagree with the
premise a case has not already been made for most past provisions.
Other technical comments have been provided separately.
We do take exception to the GAO's overly broad use of the term
"exemptions" throughout this report. While appropriate to describe
explicit National Security exemptions found in many environmental laws,
the GAO also applies the term much more broadly to the very specific
legislative provisions enacted by Congress as part of DoD's Readiness
and Range Preservation Initiative (RRPI), which DoD believes are
clearly not exemptions. By using "exemptions" broadly as an over-
simplified term of convenience, the GAO mischaracterizes Congress's
action and intent, and unnecessarily reinforces the perception that DoD
has sought to avoid its environmental stewardship responsibilities.
We look forward to continuing to work with Congress and the GAO on
comprehensive solutions that sustain our military training ranges to
meet the readiness challenges of the future.
Sincerely,
Signed by:
Michael L. Dominguez:
Principal Deputy:
GAO Draft Report - Dated February 8, 2008:
GAO Code 351050/GAO-08-407:
"MILITARY TRAINING: Compliance with Environmental Laws Affects Some
Training Activities, but DoD Has Not made a Sound Business Case for
Additional Environmental Exemptions"
Department Of Defense Comments To The Recommendations:
Recommendation 1: The GAO recommends that the Secretary of Defense
direct the Deputy Under Secretary of Defense for Installations and
Environment and the Deputy Under Secretary of Defense for Personnel and
Readiness to jointly develop a sound business case that includes
detailed qualitative and quantitative analyses assessing the associated
benefits, costs, and risks of the proposed exemptions from
environmental laws. (page 47/GAO Draft Report)
DOD Response: DoD partially concurs. We agree with the GAO's general
observation that a sound business case with qualitative and
quantitative analysis regarding the benefits, costs and risks of
proposed clarifications to environmental laws is desirable and should
be developed in association with future environmental provisions. If
and when DoD again submits/resubmits provisions of this nature, we
expect to supply associated justification in support of any request.
However. DoD believes that past provisions involving clarifications to
environmental law were in fact largely supported with the rationale and
supporting information necessary to constitute a "sound business case."
While Congress has not enacted the previously submitted Clean Air, RCRA
and CERCLA provisions for various reasons, DoD does not accept the
premise that the readiness and training imperatives or associated risks
were not conveyed to the extent feasible.
DoD also disagrees strongly with the GAO's use of the term exemptions
as applied to DoD-requested environmental provisions in general, except
where the term specifically applies to a true "national security
exemption provision," such as MMPA Section 1371.
Note: Correct office for action in the recommendation should be the
Deputy Under Secretary of Defense for Readiness.
[End of section]
Appendix III: GAO Contact and Staff Acknowledgments:
GAO Contact:
Brain J. Lepore, (202) 512-4523 or leporeb@gao.gov:
Acknowledgments:
In addition to the contact named above, Mark A. Little, Assistant
Director; Vijaykumar Barnabas; Susan Ditto; Jason Jackson; Arthur
James; Richard Johnson; Oscar Mardis; Patricia McClure; Jacqueline
Snead McColl; Anthony Paras; Charles Perdue; and Karen Thornton made
major contributions to this report.
[End of section]
Footnotes:
[1] Military ranges and training areas include air ranges for air-to-
air, air-to-ground, drop zone, and electronic combat training; live
fire ranges for artillery, armor, small arms, and munitions training;
ground maneuver ranges to conduct force-on-force and live-fire training
at various unit levels; and sea ranges to conduct ship maneuvers for
training.
[2] DOD defines encroachment as the cumulative result of any and all
outside influences that impede normal training. There are 12
encroachment pressures that generally fall within three broad
categories: (1) competition for resources, (2) development near
military training areas, and (3) environmental enforcement and
compliance issues. Specific encroachment pressures related to
environmental issues include endangered species and their critical
habitat, unexploded ordnance and munitions, maritime sustainability,
air quality, water quality, and wetlands. The remaining encroachment
pressures are urban growth, cultural resources, frequency encroachment,
range transients, airborne noise, and airspace restrictions.
[3] The other two provisions were to allow DOD to cooperate more
effectively with third parties--such as environmental conservation
groups, state and local governments, and private citizens--on land
transfers for conservation purposes. These provisions were enacted
pursuant to the Bob Stump National Defense Authorization Act for Fiscal
Year 2003. Pub. L. No. 107-314, §§ 2811, 2812.
[4] Pub. L. No. 107-314, § 315, hereafter referred to as the fiscal
year 2003 defense authorization act.
[5] Pub. L. No.108-136, §§ 318, 319, hereafter referred to as the
fiscal year 2004 defense authorization act.
[6] 16 U.S.C. § 703. This Migratory Bird Treaty Act revision authorized
the Secretary of the Interior to prescribe regulations that enable DOD
to unintentionally harm or "take" migratory birds without violating the
act.
[7] 16 U.S.C. § 1533. The Endangered Species Act revisions provide that
the Department of the Interior's regulatory agency, the U.S. Fish and
Wildlife Service, consider the impact to national security when
designating critical habitat on DOD lands and provide alternatives to
critical habitat designation.
[8] 16 U.S.C. §§ 1362, 1371. The Marine Mammal Protection Act
authorizes the Secretary of Defense, after conferring with the
Secretaries of Commerce and/or the Interior, to make a case-by-case
decision to exempt certain DOD activities from complying with the law
when necessary for the national defense.
[9] 42 U.S.C. § 7506(c). The Clean Air Act prohibits federal agencies
from engaging in any activity that does not conform to the applicable
implementation plans for achieving and maintaining the national ambient
air quality standards.
[10] 42 U.S.C. § 6901 et seq. RCRA is a 1976 amendment to the Solid
Waste Disposal Act of 1965, the first federal law regulating solid
wastes--a broad category of materials including such materials as
garbage from homes or businesses and waste materials resulting from
industrial, commercial, or agricultural activities. In this report, we
use the term RCRA to refer to the portions of the Solid Waste Disposal
Act amended in 1976.
[11] 42 U.S.C. § 9601 et seq. CERCLA is the primary law governing the
Superfund environmental cleanup program.
[12] While we recognize that each of the provisions enacted by Congress
affect change by various means in various environmental laws, as
described in footnotes 6 through 11 above, for purposes of consistency
and readability, in this report we refer to all of the Readiness and
Range Preservation Initiative provisions as exemptions.
[13] GAO, Military Training: DOD Lacks a Comprehensive Plan to Manage
Encroachment on Training Ranges, GAO-02-614 (Washington, D.C.: June 11,
2002).
[14] GAO, Military Training: DOD Approach to Managing Encroachment on
Training Ranges Still Evolving, GAO-03-621T (Washington, D.C.: Apr. 2,
2003).
[15] GAO, Military Training: Better Planning and Funding Priority
Needed to Improve Conditions of Military Training Ranges, GAO-05-534
(Washington, D.C.: June 10, 2005).
[16] Pub. L. No. 110-181.
[17] National Marine Fisheries Service is the federal agency within the
Department of Commerce's National Oceanic and Atmospheric
Administration that is responsible for the stewardship of the nation's
living marine resources and their habitats. It is also responsible for
implementing the Marine Mammal Protection Act and the Endangered
Species Act for certain marine species.
[18] FWS is a bureau within the Department of the Interior that is
responsible for conserving, protecting, and enhancing fish, wildlife,
and plants and their habitats. It is also responsible for implementing
the Migratory Bird Treaty Act, the Endangered Species Act, and the
Marine Mammal Protection Act for certain species.
[19] Section 366 of the Bob Stump National Defense Authorization Act
for Fiscal Year 2003 requires that the Secretary of Defense report with
DOD's budget submission for fiscal year 2005 through fiscal year 2008
on several items, such as describing the progress made in implementing
DOD's plan to address training constraints caused by limitations on the
use of military lands, marine areas, and airspace, and any additional
actions taken or to be taken to address training constraints.
[20] 16 U.S.C. § 1533(b)(2).
[21] According to DOD, the legislative proposals sought to "clarify"
the relationship between military training and a number of provisions
in various conservation and compliance statutes, including the
Endangered Species Act, the Migratory Bird Treaty Act, the Marine
Mammal Protection Act, the Clean Air Act, RCRA, and CERCLA.
[22] Pub. L. No. 107-314, § 315.
[23] 16 U.S.C. § 703.
[24] 50 C.F.R. § 21.15. (2007).
[25] Pub. L. No. 107-314, §§ 2811, 2812.
[26] Pub. L. No. 108-136, §§ 318, 319.
[27] 16 U.S.C. § 1533.
[28] 16 U.S.C. §§ 1362, 1371.
[29] 16 U.S.C. § 1533(a)(3)(b).
[30] 16 U.S.C. § 1536(a)(2).
[31] 16 U.S.C. § 1533(b)(2).
[32] The term operational range is defined in Title 10 of the U.S. Code
as a range that is under the jurisdiction or control of the Secretary
of a military department and may or may not be currently used for range
activities, but has not been put to a new use that is incompatible with
range activities. 10 U.S.C. §101 (e)(3).
[33] Environmental Protection Agency, "Military Munitions Rule:
Hazardous Waste Identification and Management; Explosives Emergencies;
Manifest Exemption for Transport of Hazardous Waste on Right-of-Ways on
Contiguous Properties" Federal Register, vol. 62, p. 6622 (Feb. 12,
1997).
[34] GAO-02-614.
[35] GAO-03-621T.
[36] GAO-05-534.
[37] Since 2003, we have recommended that DOD develop systems through
which DOD and its outside stakeholders can determine how encroachment
factors affect readiness activities at DOD training facilities.
Although DOD and the services have not completed their efforts to
develop and implement such systems, the results of this and our prior
reviews indicate progress is being made to complete this effort.
Consequently, we are not making a recommendation on this matter at this
time.
[38] On January 3, 2008, in a lawsuit brought by NRDC against the Navy,
the U.S. District Court for the Central District of California
determined that the Navy's use of mid-frequency active sonar was not in
compliance with CZMA or NEPA and issued an injunction against the
Navy's planned training exercises. On January 10, 2008, the Secretary
of the Navy sought Council on Environmental Quality approval of an
exception to the procedural provisions of NEPA in light of emergency
circumstances requiring the Navy to use mid-frequency active sonar
during training exercises without following the normal procedures in
NEPA regulations. On January 15, 2008, the Chairman of the Council on
Environmental Quality approved the Navy's proposed alternative
arrangements. On January 11, 2008, the Secretary of Commerce made a
written request that the Navy be exempted from compliance with the
Coastal Zone Management Act in its use of mid-frequency active sonar
during Southern California Operating Area Composite Training Unit
Exercises and Joint Task Force Exercises. On January 16, 2008, the
President invoked an exemption to CZMA by determining that the Southern
California Operating Area Composite Training Unit Exercises and Joint
Task Force Exercises, including the use of mid-frequency active sonar
in these exercises, are in the paramount interest of the United States.
On February 4, 2008, the U.S. District Court for the Central District
of California held the Navy is not exempted from compliance with NEPA
nor from the court's injunction because the Council on Environmental
Quality's approval of emergency alternative arrangements was beyond the
scope of the regulation and invalid, given the court's finding that
there is no emergency. The court also expressed concerns about the
constitutionality of the President's exemption of the Navy from the
requirements of CZMA but chose not to resolve that issue. On February
29, 2008, the U.S. Court of Appeals for the Ninth Circuit issued an
opinion upholding the district court's injunction, concluding that the
district court neither relied on erroneous legal premises nor abused
its discretion.
[39] The Sikes Act requires every DOD installation with significant
natural resources to develop Integrated Natural Resources Management
Plans to manage the natural resources located on its lands. These
management plans lay out a variety of management strategies and steps
installations will use to ensure that specific natural resources, such
as endangered species and critical habitat, are protected and preserved
on the installations.
[40] According to DOD, a breeding group consists of a monogamous
breeding pair and may include up to four males.
[41] Department of the Navy, Activities Taken Under the Authority of
the National Defense Exemption Under the Marine Mammal Protect Act
Issued on 23 January 2007 (Washington, D.C.: February 2008).
[42] The Senate Armed Services Committee considered the three exemption
provisions for inclusion in the Senate version of the fiscal year 2008
defense authorization bill but did not include the provisions in the
final version of the bill voted on by the Senate. S. 567, 110th Cong. §
§ 314-316 (2007).
[43] Department of Defense, Office of the Under Secretary of Defense
for Personnel and Readiness, Report to Congress on Sustainable Ranges
(Washington, D.C.: February 2006).
[44] A nonattainment area is defined as a locality where air pollution
levels persistently exceed national air quality standards.
[45] CPEO promotes and facilitates public participation in the
oversight of environmental activities at federal facilities and private
Superfund sites. The Center also educates public stakeholders on both
the process and technologies for cleanup and environmental protection.
[46] In 1995, DOD was granted a national security exemption to RCRA to
exempt the Air Force's operating location near Groom Lake, Nevada, from
any provision respecting control and abatement of solid or hazardous
waste that would require the disclosure of classified information to
any unauthorized person. This exemption was renewed annually during its
lifetime. The last exemption expired September 12, 2004, and has not
been renewed since that time.
[47] 16 U.S.C. § 703.
[48] 16 U.S.C. §§ 1362, 1371.
[49] 16 U.S.C. § 1533.
[50] 42 U.S.C. § 7506(c).
[51] 42 U.S.C. § 6901 et seq.
[52] 42 U.S.C. § 9601 et seq.
[End of section]
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(202) 512-4800:
U.S. Government Accountability Office:
441 G Street NW, Room 7149:
Washington, D.C. 20548:
