Defense Dept. cites 'national security' for exemption
By E&E Publishing
Aug. 22 - WorldCatch News Network - The Defense Department may attempt to convince Congress this fall to amend the Endangered Species Act to exempt military operations from ESA compliance, according to internal documents received by Public Employees for Environmental Responsibility.
On Tuesday, PEER released "Pre-Decision Working Papers" from DOD, titled "Maritime Sustainability Issues and Action Plan," that list five environmental laws -- the Marine Mammal Protection Act, ESA, National Marine Sanctuaries Act, Coastal Zone Management Act and Magnuson-Stevens Fisheries Conservation and Management Act -- and two executive orders from former President Clinton on coral reefs and marine protected areas that "impact DOD operations, training and testing in the marine environment in order of their severity," according to the documents, dated Dec. 17, 2000.
Moreover, another document that was too confidential for PEER to release in full lays out specific amendments that DOD will seek from ESA, including: allowing the secretary of Defense to exempt DOD from ESA compliance for reasons of "national security or mission readiness"; prohibiting critical habitat designations on DOD land; allowing incidental take of listed wildlife when DOD can demonstrate an increase in the species' population; limiting the need for consultation with the Fish and Wildlife Service or National Marine Fisheries Service when a listed species may be affected by DOD action; shortening the time limits for immediate consultation; allowing DOD to further ESA goals only when those actions are consistent with DOD's primary mission; and, placing DOD representatives on species recovery teams.
Navy Spokesman Doug Spencer said the lawyers he spoke with had not heard of the documents, and the environmental policy office was unaware as well. Furthermore, pre-decision working papers are not meant for public dissemination because they are works in progress. "They may be proposed, and then they may be killed right off," he said.
Since December, the documents may have changed, but the issue was still active as of May 14, 2001, which is when the most recent memorandum was dated from the acting deputy under secretary of defense, environmental security division, to deputy assistant secretaries in the Army, Navy and Air Force. That memo designated the Department of the Navy as the lead agency on issues of "marine encroachment" and "maritime sustainability," with a response deadline date of May 30, 2001.
The Navy has weathered considerable criticism of late due to practice bombing on Vieques Island in Puerto Rico, for which the Navy was forced to relocate endangered sea turtle nests, and a new low-frequency sonar system called SurTASS LFA (Surveillance Towed Array Sensor System Low Frequency Active sonar), which would scan the ocean for "quiet diesel submarines," according to Navy documents. The National Marine Fisheries Service must first grant a permit for LFA, and several West Coast states must agree to it, because scientists suspect that the underwater sound is causing some species of whales to hemorrhage in the ears, thus beaching the whales and killing them.
DOD also grumbled when a military base in California was designated as critical habitat for the desert tortoise.
Dan Meyer, PEER's general counsel, thinks DOD will push a bill this fall in Congress, and it may already be in the Defense Reauthorization Act, which is not yet available for public scrutiny. Although ESA reform overall is a hot topic with a lot of rhetoric but no successful action, Meyer said DOD has the benefit of full support from the Pentagon instead of splintered factions within the department.
"This is the one issue within the Pentagon that no one's fighting about. There doesn't seem to be any argument that plankton is a threat to national security, so we need to change the Endangered Species Act," Meyer said.
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