They Can't Handle The Truth: The Pentagon's Myths About the Need for ESA Exemptions

As part of the Bush administration's campaign to roll back the nation's environmental protections, the Pentagon is seeking sweeping, unwarranted exemptions from five major laws safeguarding public health and wildlife. Congress is now considering legislation that, if approved, will grant the Department of Defense (DoD) immunity from the Clean Air Act (CAA), Superfund (CERCLA), Resource Conservation and Recovery Act (RCRA), Marine Mammal Protection Act (MMPA), and Endangered Species Act (ESA). A full analysis of the Pentagon's proposal is available in the NRDC press release archive.

The General Accounting Office has concluded that (1) the military is at a high state of readiness and (2) the DoD has failed to demonstrate that compliance with the nation's environmental laws has significantly impeded training. However, Pentagon officials continue to blame these important anti-pollution and wildlife protection statutes for restricting training and readiness restrictions.

Perhaps sensing the benefit of politicizing this issue as troop training versus wildlife protection, the Pentagon has targeted the Endangered Species Act as a particularly burdensome. But when it comes to purported problems posed by ESA compliance, the Pentagon's only "evidence" consists of highly misleading and, in some cases, completely inaccurate anecdotes.


The Pentagon Says... "At Camp Pendleton, proposed critical habitat under the Endangered Species Act would cover 57 percent of the base..." (Congressional testimony of Raymond F. DuBois, Deputy Undersecretary of Defense, March 13, 2003.)

The Fact is... This refers to all lands for which critical habitat has ever been "proposed," even though the U.S. Fish and Wildlife Service (USFWS) eventually excluded from its final designation all but 875 acres of the base's 120,000 acres of training land. Despite the presence of 18 endangered species, less than four percent of the base is designated as critical habitat for any species. It is worth noting that local base commanders have lauded Camp Pendleton's successful efforts to protect the endangered snowy plover. The Pentagon recently heralded the camp in its "We're Saving a Few Good Species" publicity campaign with a poster declaring that "an elite military force can train in environmentally sensitive areas and protect a threatened species at the same time."

The Pentagon Says…Critical habitat restrictions would include "all 17 miles of beach that is critical to training operations…" (DuBois' congressional testimony, March 13, 2003.)

The Fact is... Large-scale amphibious landings are limited on two to three miles of the 17-mile beach, and only during the five-to six-month nesting seasons of the endangered Western snowy plover and California least tern. The biggest limitation on training is not critical habitat designation but the presence of Interstate 5, the San Onofre Nuclear Generation Plant, a railroad, and other topographic access limitations. Perhaps in recognition of these geographic constraints, the FY03 defense authorization bill provides Camp Pendleton with funding to purchase land near the base as a buffer from additional development and sprawl.

The Pentagon Says... The proposed ESA exemption is narrowly tailored and will only apply to portions of Camp Pendleton and other military bases needed for training.

The Fact is…The exemption would apply to land owned by the military even if used for non-military purposes. In the case of Camp Pendleton, the exemption would apply to San Onofre State Park, which is leased to the State of California by the Marine Corps. San Onofre is the 10th most popular park in California and currently is home to several endangered and threatened species and their designated critical habitat. However, because the park is "owned" by the DoD, the exemption would preclude any designation of critical habitat on park property.


The Pentagon Says…"When Navy SEALs land on beaches at Naval Base Coronado during nesting season, they have to disrupt their tactical formation to move in narrow lanes marked by green tape, to avoid disturbing the nests of the Western snowy plover and California least tern." (Joint testimony of Paul Mayberry, Deputy Under Secretary of Defense for Readiness and Raymond Dubois, Jr. before the House Armed Services Subcommittee on Military Readiness, May 16, 2002)

The Fact is... Of the base's 5,000-yard ocean coastline, the presence of these two endangered birds only restricts the use of one 500-yard training lane, and only during the birds' five- to six-month nesting season. The Navy has acknowledged the importance of this restriction (or "work around") to species recovery.


The Pentagon Claims... Over 22,000 acres of the base is designated critical habitat for the Desert tortoise and is currently not available for maneuver training. ("Encroachment Impacts on Army Installations," U.S. Army talking points document)

The Fact is... The Army voluntarily set aside this area, which represents less than 4 percent of the 1,000 square-mile base, prior to the 1994 designation of critical habitat. The primary reason was to prevent maneuvers from accidentally going off the fort's boundary; protecting the desert tortoise was a secondary benefit. Even so, USFWS permits the Army to "take" or kill up to 36 tortoises per year, and in 1995, the Army received permission to lift protection from several key tortoise populations across thousands of acres.


The Pentagon Says... The presence of the endangered loggerhead shrike shorebird has curtailed the use of illumination rounds or other potentially incendiary shells during shore bombardment exercises at San Clamente during the six-month loggerhead shrike breeding season.

The Fact is... The loggerhead shrike, which first became imperiled on the island due to the Navy's introduction of a goat that decimated the bird's habitat, has rebounded from 13 to 106 birds, thanks to conservation efforts. The use of live ordinance is restricted from June to October (not during the February-June breeding season) because of the risk of fire. This could be remedied by the use of inert ordinance, of which the Marine Corps has failed to keep an adequate inventory for use in training.


The Pentagon claims... At Makua Valley there are many training restrictions based on a Biological Opinion, and a litigation settlement that allows less than 18 Combined Arms Live-Fire Exercises per year required by the 25th Light Infantry Division. (U.S. Army talking points)

The Fact is... The Makua valley is home to more than 40 endangered plant and animal species. In 1999 the Army reached a voluntary settlement with local groups, which allowed for continued training on the Makua Military Reservation on Oahu. The settlement agreement was based on a National Environmental Policy Act case, which has nothing to do with the exemptions currently being sought by the Pentagon. In any case, under that agreement, the Army continues to train as necessary. For example, the Army requested that they be allowed 18 training exercises -- the amount they determined was necessary for joint training -- and ended up only conducting 13 exercises. This year the Army requested 9 trainings, and so far has conducted two.


The Pentagon Claims... Units cannot train because of the red-cockaded woodpecker due to 200-foot buffers around each cavity tree, in which there are various restrictions. These include no bivouacking or occupations for more than two hours; no use of camouflage; no weapons firing other than 7.62mm and .50 cal blank (e.g., no artillery, rockets, etc.); no use of generators; no use of riot control agents; no use of incendiary devices; no use of white smoke; and no digging tank ditches or fox holes. Also, during maneuvers, vehicles cannot come closer than 50 feet from certain trees. (U.S. Army talking points)

The Fact is... In the early 1990s, the Army stated it was having trouble training due to the red-cockaded woodpecker restrictions. The USFWS asked for a list of additional training activities the Army would like to carry out within the 200-foot buffer areas -- all of which were approved in 1996. Since then, the Army has not made any other requests. It is important to note that none of the Army installations with red-cockaded woodpeckers have designated "critical habitat," which means that the exemptions sought by the Pentagon would have no effect on training at these bases. Currently, only 8,000 acres out of 200,000 are affected by habitat protections at Fort Bragg; only about 1,000 acres are affected out of 100,000 at Fort Polk.

Despite recent concerns raised by Pentagon brass, commanders at installations with red-cockaded woodpeckers have celebrated this success and highlighted how woodpecker conservation programs establish a model for balancing training and conservation needs. For example, Major General David M. Mize, Marine Corps Base Camp Lejuene, recently stated: "Returning to the old myth that military training and conservation are mutually exclusive, this notion has been repeatedly and demonstrably debunked. In the overwhelming majority of cases, with a good plan along with common sense and flexibility, military training and the conservation and recovery of endangered species can very successfully coexist." (Symposium IV for Red-Cockaded Woodpeckers, January 27-31, 2003.)


The Pentagon Says... Only about 17 percent of Fort Hood's lands are available for training without restrictions, and 33 percent of that land contains endangered bird habitat. Tree or brush cutting and digging is not allowed, and vehicle training is restricted to established trails from March through August. (U.S. Army talking points)

The Fact is... Over 74 percent of the base's 217,600 acres is currently restricted by private cattle grazing, not endangered species protections. Roughly 34 percent of the base's training area has faced only limited restrictions due to the presence of two endangered birds -- the black-capped vireo and the golden-cheeked warbler. Aside from restrictions on the use of chemical grenades and artillery firing in specified "core areas" within the endangered birds' habitat, many training activities are still permitted.


The Pentagon Says... "In the calendar year 2000, almost 40 percent of the live fire missions at the Goldwater Range were canceled." (Paul Mayberry interview with National Public Radio, April 3, 2002)

The Fact is... The base is home to the last remaining Sonoran pronghorn in the United States. With just about 30 animals left, it is one of the most endangered species of large mammals in the world. The pronghorn's continued existence is threatened by air and ground maneuvers, including bombing, strafing, artillery fire and low-level flights. Despite this fact, the Pentagon's proposed exemptions would not apply here because USFWS has not designated any of the range as critical habitat for the pronghorn out of fear that doing so could seriously limit the Air Force's ability to modify missions on its lands. In return, the Air Force is cooperating with the Interior Department, the Nature Conservancy, and the Sonoran Institute on a conservation strategy.


The Pentagon Says... "Training is limited on 72 percent of Fort Lewis to protect a bird species that does not even live on the installation. Seventy two percent, (approximately 63,000 acres) of the installation is designated critical habitat-for the Northern Spotted Owl, even though no owls are currently located on the installation." (U.S. Army talking points)

The Fact is... Habitat destruction caused by rampant development and unsustainable logging has left Fort Lewis with one of the last intact forest areas in the Puget Sound Basin suitable for endangered species recovery. Still, USFWS dropped its proposed critical habitat designation by 84 percent -- from 4.7 million acres to 58,000 acres. Although endangered spotted owls may not permanently live on the base, the owls are expected to utilize critical habitat on Ft. Lewis (at least seasonally).

As noted before, critical habitat designation is not a de facto ban on military activities. In fact, the military has hailed Fort Lewis as a conservation success story. Gen. James Hill, former Fort Lewis commander, told a U.S. Senate committee, "I am a good steward of the environment because of two reasons: It's the law, and it's the right thing to do." ("Fragile species, military might strain to co-exist at Fort Lewis," Seattle Times, January 19, 2003) Additionally, Paul Steucke, chief of the environment and natural resources division at Fort Lewis, said the base has long been able to find a balance between environmental protection and military necessity. "I can't honestly tell you that (troops) can't continue their mission," Steucke said. "I don't think the exemptions would change our management approach." ("Military doesn't want to go green. Pentagon pushing for exemption from environmental laws, Seattle Post-Intelligencer, March 13, 2003)


The Pentagon Says... ESA protections for the endangered hawksbill and leatherback sea turtles have restricted training at this range, including the possibility of halting the entire training exercise for a Carrier Battle Group in the event of observing a single sea turtle.

The Fact is... As a result of formal consultation under the ESA, the Navy agreed to institute precautionary conservation measures. In response, USFWS issued a no-jeopardy Biological Opinion allowing battle group exercises to go forward without fear of delay due to ESA. The Navy's conservation measures, such as the relocation of turtle eggs to a hatchery during amphibious landings, have resulted in the successful hatching of over 17,000 hawksbill and leatherneck sea turtle eggs.


The ESA poses no threat to military readiness because the USFWS frequently excludes military lands from critical habitat designations. In the rare cases where critical habitat has been designated, DoD has never indicated -- nor has it proved -- that this level of wildlife protection is an obstacle to achieving readiness. That's because critical habitat does not render land off-limits to military use; such protection only requires that DoD consult with the USFWS before undertaking training that might adversely modify wildlife habitat. As a case-in-point, DoD has never found it necessary to invoke the existing "national security" exemption currently provided by the ESA. Clearly, the evidence shows that the U.S. military has been able to carry out its training mission while complying with the ESA, as well as the nation's other environmental laws.

The Natural Resources Defense Council is a national, non-profit organization of scientists, lawyers and environmental specialists dedicated to protecting public health and the environment. Founded in 1970, NRDC has more than 550,000 members nationwide, served from offices in New York, Washington, Los Angeles and San Francisco.

The following environmental organizations published this document: Center for Biological Diversity, Center for Public Environmental Oversight, Defenders of Wildlife, Earthjustice, Endangered Species Coalition, Oceana, Military Toxics Project, National Environmental Trust, National Wildlife Federation, Natural Resources Defense Council, Public Employees for Environmental Responsibility, U.S. Public Interest Research Group

Related NRDC Pages
March 12, 2003, Above the Law? The Pentagon is Taking Aim at America's Public Health and Environmental Protections