Military Training: Compliance with Environmental Laws Affects
Some Training Activities, but DOD Has Not Made a Sound Business
Case for Additional Environmental Exemptions	 
(07-MAR-08, GAO-08-407).						 
                                                                 
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.
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-08-407						        
    ACCNO:   A81234						        
  TITLE:     Military Training: Compliance with Environmental
Laws Affects Some Training Activities, but DOD Has Not Made a
Sound Business Case for Additional Environmental Exemptions							 
     DATE:   03/07/2008 
  SUBJECT:   Combat readiness
             Conservation compliance
             Data collection
             Endangered species
             Environmental law
             Environmental legislation
             Environmental monitoring
             Environmental policies
             Environmental protection
             Fishery legislation
             Forest conservation
             Land management
             Military facilities
             Military forces
             Military training
 				 
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GAO-08-407

   

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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 DODï¿½s training activities and military 
readiness, (2) DODï¿½s use of statutory exemptions from environmental 
laws on training activities, (3) DODï¿½s 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 ï¿½workarounds,ï¿½ 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. GAOï¿½s 
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. DODï¿½s 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 DODï¿½s 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 proposalï¿½s 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, [email protected]. 

[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. ï¿½7418(b): The President; 
Clean Water Act 33 U.S.C. ï¿½1323(a): The President; 
Coastal Zone Management Act 16 U.S.C. ï¿½ 1456(c)(1)(B): The President; 
Comprehensive Environmental Response Compensation and Liability Act 42 
U.S.C. ï¿½9620(j): The President; 
Endangered Species Act 16 U.S.C. ï¿½1536(j): The Endangered Species 
Committee[B]; 
Marine Mammal Protection Act[A] 16 U.S.C. ï¿½1371(f): The Secretary of 
Defense, after conferring with the Secretary of Commerce or the 
Interior, as appropriate; 
Noise Control Act 42 U.S.C. ï¿½4903(b): The President; 
Resource Conservation and Recovery Act 42 U.S.C. ï¿½6961(a): The 
President; 
Safe Drinking Water Act 42 U.S.C. ï¿½300h-7(h): The President. 

Statute: Standard; 
Clean Air Act 42 U.S.C. ï¿½7418(b): In the paramount interest of the 
United States; 
Clean Water Act 33 U.S.C. ï¿½1323(a): In the paramount interest of the 
United States; 
Coastal Zone Management Act 16 U.S.C. ï¿½ 1456(c)(1)(B): In the paramount 
interest of the United States; 
Comprehensive Environmental Response Compensation and Liability Act 42 
U.S.C. ï¿½9620(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. ï¿½1536(j): Necessary for national 
security; 
Marine Mammal Protection Act[A] 16 U.S.C. ï¿½1371(f): Necessary for 
national defense; 
Noise Control Act 42 U.S.C. ï¿½4903(b): In the paramount interest of the 
United States; 
Resource Conservation and Recovery Act 42 U.S.C. ï¿½6961(a): In the 
paramount interest of the United States; 
Safe Drinking Water Act 42 U.S.C. ï¿½300h-7(h): In the paramount interest 
of the United States. 

Statute: Duration; 
Clean Air Act 42 U.S.C. ï¿½7418(b): Not to exceed 1 year; additional 1 
year exemptions may be granted; 
Clean Water Act 33 U.S.C. ï¿½1323(a): Not to exceed 1 year; additional 1 
year exemptions may be granted; 
Coastal Zone Management Act 16 U.S.C. ï¿½ 1456(c)(1)(B): No limit; 
Comprehensive Environmental Response Compensation and Liability Act 42 
U.S.C. ï¿½9620(j): Not to exceed 1 year; additional 1 year exemptions may 
be granted; 
Endangered Species Act 16 U.S.C. ï¿½1536(j): No limit; 
Marine Mammal Protection Act[A] 16 U.S.C. ï¿½1371(f): For a specified 
period not to exceed 2 years; additional 2 year exemptions may be 
granted; 
Noise Control Act 42 U.S.C. ï¿½4903(b): Not to exceed 1 year; additional 
1 year exemptions may be granted; 
Resource Conservation and Recovery Act 42 U.S.C. ï¿½6961(a): Not to 
exceed 1 year; additional 1 year exemptions may be granted; 
Safe Drinking Water Act 42 U.S.C. ï¿½300h-7(h): No limit. 

Statute: Reporting requirement; 
Clean Air Act 42 U.S.C. ï¿½7418(b): Annual report by President to 
Congress of exemptions granted with the reason for granting; 
Clean Water Act 33 U.S.C. ï¿½1323(a): Annual report by President to 
Congress of exemptions granted with the reason for granting; 
Coastal Zone Management Act 16 U.S.C. ï¿½ 1456(c)(1)(B): None; 
Comprehensive Environmental Response Compensation and Liability Act 42 
U.S.C. ï¿½9620(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. ï¿½1536(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. ï¿½1371(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. ï¿½4903(b): Annual report by President to 
Congress of exemptions granted with the reason for granting; 
Resource Conservation and Recovery Act 42 U.S.C. ï¿½6961(a): Annual 
report by President to Congress of exemptions granted with the reason 
for granting; 
Safe Drinking Water Act 42 U.S.C. ï¿½300h-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 [email protected]. 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 [email protected]: 

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, ï¿½ï¿½ 2811, 2812. 

[4] Pub. L. No. 107-314, ï¿½ 315, hereafter referred to as the fiscal 
year 2003 defense authorization act. 

[5] Pub. L. No.108-136, ï¿½ï¿½ 318, 319, hereafter referred to as the 
fiscal year 2004 defense authorization act. 

[6] 16 U.S.C. ï¿½ 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. ï¿½ 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. ï¿½ï¿½ 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. ï¿½ 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. ï¿½ 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. ï¿½ 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. ï¿½ 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, ï¿½ 315. 

[23] 16 U.S.C. ï¿½ 703. 

[24] 50 C.F.R. ï¿½ 21.15. (2007). 

[25] Pub. L. No. 107-314, ï¿½ï¿½ 2811, 2812. 

[26] Pub. L. No. 108-136, ï¿½ï¿½ 318, 319. 

[27] 16 U.S.C. ï¿½ 1533. 

[28] 16 U.S.C. ï¿½ï¿½ 1362, 1371. 

[29] 16 U.S.C. ï¿½ 1533(a)(3)(b). 

[30] 16 U.S.C. ï¿½ 1536(a)(2). 

[31] 16 U.S.C. ï¿½ 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. ï¿½101 (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. ï¿½ 
ï¿½ 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. ï¿½ 703. 

[48] 16 U.S.C. ï¿½ï¿½ 1362, 1371. 

[49] 16 U.S.C. ï¿½ 1533. 

[50] 42 U.S.C. ï¿½ 7506(c). 

[51] 42 U.S.C. ï¿½ 6901 et seq. 

[52] 42 U.S.C. ï¿½ 9601 et seq. 

[End of section] 

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