It's not easy being green: are DoD INRMPS a defensible substitute for critical habitat designation?

• Author: May, Lori L.

1. INTRODUCTION II. BACKGROUND A. Endangered Species on DoD Lands B. The Endangered Species Act and DoD Applicability C. The Sikes Act III. CRITICAL HABITAT A. Designation of Critical Habitat by FWS B. Center for Biological Diversity v. Norton C. Range Readiness Preservation Initiative D. Response from Environmental Organizations IV. INRMP vs. CRITICAL HABITAT DESIGNATION A. DoD Position that INRMP is Superior B. FWS Position that Critical Habitat Process is Broken V. PROCEDURAL RECOMMENDATIONS A. Definition of "Benefit to the Species". B. Public Input when Developing INRMPs C. Unfunded INRMPs VI. SUBSTANTIVE RECOMMENDATIONS A. Reasonable and Prudent Measures from Individual Biological Opinions B. Recovery Plans C. Section 7(a)(1) Conservation Planning D. Mitigation and Monitoring Requirements from NEPA Process E. Federal Land Policy Management Act and National Forest Management Act Resource Management Plans F. Comprehensive Wildlife Conservation Strategies G. Adjacent Private Lands 1. Habitat Conservation Plans 2. Safe Harbor Agreements 3. Candidate Conservation Agreements 4. Candidate Conservation Agreements with Assurances H. Memorandum of Agreement as Required by Migratory Bird Treaty Act Executive Order VII. CONCLUSION: A GOOD INRMP IS A GOOD SUBSTITUTE FOR CRITICAL HABITAT DESIGNATION I. INTRODUCTION

   The Department of Defense (DoD) is responsible for managing approximately 25 million acres of land on more than 425 military installations in the United States. (1) The DoD is the third largest federal land manager, behind the Departments of Interior and Agriculture. (2) On these lands, there are more than 300 species listed as threatened or endangered. (3)

   Conservation is an idea which has long been a part of our nation's history. In 1832, as George Catlin arrived in present-day South Dakota, he wrote in his journal about "a nation's Park" which would preserve both the buffalo and the Indians who inhabited the plains. (4) The first application of the park concept was seen in 1864 when the United States granted Yosemite Valley to California to manage it for preservation. (5) In 1872, Congress created the first national park. (6) By the legislation, they "dedicated and set apart as a public park or pleasuring ground for the benefit and enjoyment of the people" Yellowstone National Park. (7) As the nation's principal conservation agency, the Department of Interior has as a primary mission the conservation and protection of natural resources, to include endangered species. (8) Similarly, the Forest Service, as the primary land manager within the Department of Agriculture, has an environmental mission that can logically be extended to include protection of endangered species. (9)

   But, unlike the Department of the Interior and the Department of Agriculture, the DoD's primary mission is to train and equip combat forces, not to function as a federal land manager. (10) The conservation ideal, however, has occasionally been included in the congressional guidance for the management of the DoD. For example, in 1992, Congress established the Legacy Program, which provided the military with additional funding for conservation efforts. (11) It set aside $ 10,000,000 of the Legacy funds for use only in implementing cooperative agreements to identify, document, and maintain biological diversity on military installations. (12) Unfortunately, conservation related to endangered species has become a significant threat to the DoD's ability to train military personnel and test weapons and equipment.

   To aid in the recovery of threatened and endangered species, the Department of the Interior is required to designate critical habitat. (13) Once designated, this habitat receives special protection, and cannot be freely used for purposes that may harm the species and slow its recovery. (14) Designation of critical habitat on DoD lands can significantly increase restrictions on military training by making the designated land unusable for military training. (15) If resources are not managed wisely, the DoD's responsibility to protect and preserve endangered species and their habitats will diminish the DoD's ability to accomplish its primary mission. Environmental restrictions on the services' ability to train personnel and test weapons and other equipment are often referred to as "encroachment." (16) In addition to endangered species-related land-use restrictions, other types of encroachment that impact training and testing activities are urban growth, incompatible development near military bases, and restrictions imposed by other environmental legislation, including the Clean Air Act and the Marine Mammal Protection Act. (17)

   DoD efforts to deal with encroachment have taken many forms in recent years. Some of these efforts have been used by all services and others have been more applicable to a single service. One extreme method of dealing with encroachment has been base closure. (18) More often, however, the efforts involve some type of land use planning. An early tool used by the Air Force to fight encroachment was the "Greenbelt" concept. (19) Initiated in 1970, Greenbelt sought to purchase property around airfields to create a buffer zone. (20) Unfortunately, the program proved too costly. (21) The DoD also uses its own tools, such as the Air Use Installation Compatible Use Zone (AICUZ), which is used by all military services. (22) The purpose of AICUZ is to achieve compatible use of public and private lands in the vicinity of military airfields. (23) In 1995, in Fort Bragg, North Carolina, The Nature Conservancy and the Army Environmental Center signed a cooperative agreement that enabled the agencies to use "cost-sharing" to protect land in the vicinity of Fort Bragg. (24) The lands selected for protection were critical to the survival of the federally endangered red-cockaded woodpecker. (25)

   Since September 11, 2001, the DoD has sought certain modifications to environmental laws under its Readiness and Range Preservation Initiative. (26) This initiative was designed to enable the DoD to meet its primary mission, while remaining a responsible steward of the natural resources on its lands. (27) One piece of new legislation authorized the DoD to cooperate more effectively with third parties on land transfers for conservation purposes. (28) In 2003, the DoD obtained a modification allowing military installations to supplant critical habitat designation for listed species through the use of an Integrated Natural Resource Management Plan (1NRMP) that provides a conservation benefit to the species. (29) This article will look at endangered species on DoD land, INRMPs, and critical habitat designation. This article makes recommendations for the military departments within the DoD to follow in preparing and revising INRMPs in the future. The recommendations fall into two categories: (1) procedures to follow in preparing INRMPs, and; (2) recommendations for broadening the scope of INRMPs. This article concludes that the INRMP is an acceptable substitute for critical habitat designation, as long as it is thoroughly prepared and funded adequately. As ecosystem-based management tools, INRMPs that encompass a wide variety of natural resources concerns can be a great asset to the DoD.

2. BACKGROUND

   1. Endangered Species on DoD Lands

      DoD land holdings are generally large tracts, which often have a disproportionate natural resources value because higher concentrations of endangered species inhabit them. (30) DoD lands are distributed throughout the country and include ecosystems that are underrepresented or unrepresented in other federal agencies' land holdings. (31) Often, DoD lands are isolated from other federal land holdings. (32) This remote geographic location often adds to its natural resources value. Additionally, development around military installations has driven many species to seek refuge on the installations. (33) Due to access restrictions designed to ensure public safety and security of military assets, the land often offers more natural conditions as habitat for the species than lands managed by other federal agencies. (34) Military lands also may contain the invaluable habitat for some species that have been endangered or threatened due to loss of nearby public or private lands. (35) In some cases, military bases have become de facto refuges for threatened and endangered species that are either fleeing urban sprawl outside the base, or remaining within their historic habitat that has been preserved on the base. (36)

   2. The Endangered Species Act and DoD Applicability

      The Endangered Species Act (ESA) is designed to prevent the extinction of species of plants and animals by protecting species listed as "endangered" (in danger of extinction) or "threatened" (likely to become endangered in the foreseeable future). (37) It also attempts to "recover" species so that the species no longer needs protection from the ESA. (38)

      The ESA prohibits any person from "taking" any species of fish or wildlife on the endangered or threatened lists. (39) The definition of "person" includes "any officer, employee, agent, department, or instrumentality of the Federal Government." (40) "Federal agency" is defined as "any department, agency, or instrumentality of the United States." (41) As a "person" and as a federal agency, the DoD must meet several requirements under the ESA. The prohibition against "taking" is very broad. "Take" is defined to include harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, collecting, or attempting any of these things. (42) "Harm" is also broadly defined. By regulation, it is defined to include destruction of habitat that kills or injures wildlife by significantly impairing essential behavior patterns, including breeding, feeding, or sheltering. (43) These broad definitions constrain the DoD's conduct when listed species of plants and animals, or their habitat, are...