Pendleton and the environment - Marines seek sweeping exemptions from laws

By: DARRIN MORTENSON - Staff Writer | Thursday, October 16, 2003 10:56 AM PDT ∞

CAMP PENDLETON ---- Could preserving songbirds and fairy shrimp endanger the lives of U.S. Marines? Or should Marines be free to trample and bomb endangered rodents and frogs to train for the war on terrorism?

These are some of the issues at stake as Congress considers the 2004 Defense Authorization Act, now in legislative conference.

As it plays out on Capitol Hill, competition among priorities of civilian growth, preserving the environment and keeping the military ready for war have thrust North County onto center stage: Camp Pendleton is where the Pentagon has chosen to make its stand, and environmentalists are taking on the military.

In what the Pentagon has dubbed the Readiness and Range Preservation Initiative, the military asks that the country's key environmental laws be rewritten to protect it from litigation and to elevate military readiness to a place alongside economic and environmental factors in regulatory decisions.

Various factions

Environmentalists want to save threatened species that are native to or have found a home on military bases, while blocking what they see as the Pentagon's efforts to weaken the statutes and pollute with impunity.

Both sides agree that the underlying problems are driven by the voracious appetites of civilian communities for land and better quality of life.

While the divide seems impossibly deep and wide, Camp Pendleton officials and local environmental groups say Congress is most likely to forge a compromise between conservation and national security in the bill it will soon send to President Bush.

"It's a highly emotional issue," said Stan Norquist, head of the natural resources division at Camp Pendleton. "But it is finally being looked at very closely this year."

Congress to decide

Both environmentalists and the military are awaiting the outcome of a congressional conference that could limit how the Endangered Species Act and the Marine Mammal Protection Act are applied to military bases and activities. The outcome could set the stage for another Pentagon-led assault on the Clean Air Act, the Superfund cleanup law and the Resource Conservation and Recovery Act next year.

"It's the ultimate smoky back room," environmental attorney Andrew Wetzler said of the conference led by Rep. Duncan Hunter, R-San Diego, the chairman of the House Armed Services Committee, and Sen. John Warner, R-Va., the chairman of the Senate Armed Services Committee.

Wetzler, who is a senior attorney for the Natural Resources Defense Council, said any word on progress in the conference is pure speculation, but that both sides are lobbying hard on Capitol Hill while they wait.

Striking a balance

What is for sure, he said, is that the bill has gotten softer since it left the halls of the Pentagon and made its way through the Legislature; changes to three of the five laws the military included in its exemption package were cut from the House and Senate versions, at least for this year.

Hunter said Wednesday that he thought the environmental provisions in the House version of the bill are "a good balance" between training needs and environmental concerns.

"The real endangered creature is the 19-year-old Marine rifleman who needs realistic training," he said. "We have to balance the right of our Marines and sailors to stay alive."

Hunter said he believed the recent war in Iraq swayed members of Congress toward accepting some limitations on environmental regulation, and said he was confident the House language would prevail.

The entire bill will probably be on the president's desk in the next few weeks, he said.

First, the birds

Last year, the Pentagon succeeded in persuading Congress to change the Migratory Bird Treaty Act, increasing the number of birds the military was allowed to "take" ---- meaning harm, kill or disturb.

The language that made it to the final defense bill also allowed the military to enter into agreements with nongovernmental groups such as the Nature Conservancy and the Sierra Club to buy land and create environmental buffer zones around military installations to take some of the conservation pressure off training areas inside the military fence line.

This year, the Defense Department has pushed harder.

In March, the House and Senate approved broad changes, each coming up with versions that are now being weighed in conference.

The designators

The House version included what environmentalists characterize as "sweeping exemptions" to the Endangered Species Act and Marine Mammal Protection Act, including exempting military installations and lands from being designated critical habitats for endangered and threatened species.

The Senate version, which both sides in the debate say is most likely to survive the congressional conference, is more narrowly focused. It exempts the military from critical habitat designations only if the Interior Department approves them and only if the military's own conservation plans are fully funded and compliant with the Fish and Wildlife Service.

A law matching the Senate bill would provide the military with some protection against lawsuits from conservation groups ---- what Camp Pendleton base commander Maj. Gen. William Bowdon III has called "regulation by litigation."

"We support the Senate version," said Wetzler, the environmental attorney. "It seems to address the military's concerns, but also allows for a case-by-case review."

'Our main dog'

Camp Pendleton officials said they too would be satisfied with the Senate version ---- for now ---- because it includes the changes to the Endangered Species Act that topped their concerns.

"That was our main dog in the fight," Norquist said, adding that he hopes whatever gets dropped from the bill this year "continues to be put before Congress," in following years.

"No one is saying that the sky is falling ---- that the Marine Corps is not ready," said Norquist.

"It's just getting harder and harder and harder (to train)," he said. "Critical habitat is a bridge too far."

In its efforts to sell its arguments to Congress this year, the Defense Department has enlisted Camp Pendleton as the poster child in its campaign to battle pressures from the surrounding community ---- what the military calls "encroachment."

Some slippage

While the Navy purchased the 125,000 acres of ranch land and mountains during World War II, its control over the land's use has been slipping over the years as San Diego and Orange counties have grown up around it.

In addition to noise and airspace restrictions to accommodate the surrounding communities, Marine officials cite environmental restrictions as the major threat to their mission to train Marines as they would fight in a war.

While the military impact on the land is intense in certain areas, leading environmentalists to call the Pentagon the world's worst polluter, nearly all of the land remains relatively pristine. Pendleton is the only major undeveloped area along the coast between Santa Barbara and Tijuana.

They multiply

Threatened at every turn by new roadways and new neighborhoods in areas such as Talega, San Clemente and around Vandegrift Boulevard in Oceanside, species have moved to the wild lands on base. The number of endangered species found on Camp Pendleton has multiplied from five in the 1970s to 18 this year.

There also are more than 100 species on the base that are candidates for future threatened or endangered status, Norquist said.

Norquist said the military finds itself in a sort of Catch-22, where successful conservation management on base actually forces more regulation on his team.

In some cases, allowing species to recover and increase has doubled the burden on the base by making the installation an even more important target for regulators and environmentalists, he said.

Watch those gobies

Already dotted and crossed with areas off-limits to training, the base's prime proving grounds have turned into environmental minefields where Marines have to tiptoe around tidewater gobies and least terns, and tread lightly, sticking to the roads lest they disturb Riverside fairy shrimp or southwest arroyo toads.

The result is that some of the ranges, including the main amphibious landing beaches, have become home to unrealistic, "canned" training experiences, according to Bowdon, the base commander.

"If we cannot provide our Marines, who train on and deploy from Camp Pendleton, with the ability to train as they will be expected to fight in combat," Bowdon told the House Resources Committee in May, "then we (the Marine Corps) will not have met our obligation, either to the nation or to the Marines that put their lives on the line when called to do so."

Military officials cite recent examples of ill-trained Marines in combat, pointing fingers back to environmental fetters at Camp Pendleton.

Question of preparedness

In Afghanistan, they say, there were amphibious assault vehicle drivers who had never driven off-road, and infantrymen who had never dug into a battalion-sized defensive position.

Both unpracticed skills proved essential in the recent invasion of Iraq, where infantry battalions and artillery batteries dug defensive positions in the earth almost daily as they charged north. Drivers of amphibious assault vehicles often found themselves stuck in bogs in Southern Iraq, sometimes in the heat of battle.

"You can see the cumulative effect of all this," said Norquist, standing on the bluff along Interstate 5 above the 1,500-yard-long Red Beach, the Marines' premier training beach, pointing to the narrow lanes bound by yellow markers and streamers saying "keep out."

Behind him, distant artillery blasts and the chit-chit-chit of machine guns cut through the freeway roar. "It all adds up," he said.

Environmentalists say that many of the arguments for lifting environmental restrictions on Camp Pendleton and other military facilities are disingenuous at best.

A big underpass

They say the reason the Marines value the environmentally sensitive Red Beach is because it is the only place along the coast with an underpass at I-5 that is big enough to fit their largest vehicles, such as tanks, to allow Marines to move inland to an objective. Military officials do not disagree.

"They could change that if they really wanted to," said Wetzler. "That's got nothing to do with environmental restrictions or endangered species."

Other groups, including the Center for Public Environmental Oversight, have pointed out that high bluffs ---- not environmental restrictions ---- block amphibious training along most of the base's 17 miles of contiguous coastline.

Some say the successful Marine performances in Afghanistan and Iraq are proof that the current system of training is working just fine.

"Maybe Pendleton needs some special treatment," Wetzler said. "But the solution to those issues is not to give everyone (in the military) a complete blanket exemption."

Why species perish

Easing the restrictions on Camp Pendleton and other local military bases could force species to move back into civilian communities, which could force residents to either put the brakes on development or allow some species to perish.

Neither environmentalists nor military officials wanted to speculate on how that might go, but some said it has been the local building industry that has complained the loudest at any suggestion of adding conservation restrictions in areas around the base.

In recent duels between the environment and growth, however, the Bush administration often has sided with developers.

Last year, the government quickly settled a lawsuit brought by California builders after the Fish and Wildlife Service proposed establishing tens of thousands of acres of habitat for the gnatcatcher songbird in and around Camp Pendleton.

Taking careful aim

The gnatcatcher habitat was not designated "critical," and environmentalists who also tried to sue the government on the gnatcatchers' behalf say trying to revive the proposal would be a lost cause.

To fend off more legal challenges by builders and environmentalists, the Defense Department has gone after environmental regulations that apply to the base instead of trying to put the brakes on urban development that the military says is at the root of the problem.

Mike Collier, the director of operations and training on Camp Pendleton, said the military cannot influence "what's going on outside the fence."

"It's not our place to pass judgment on what the surrounding community does," he said.

The argument that the environmental regulations impede training has been used aggressively since Sept. 11, 2001, and in the context of U.S. military interventions in Afghanistan and Iraq. But environmental advocates say the training argument is a smoke screen for other provisions in the bill that have little to do with keeping troops in shape and more to do with excusing the military from cleaning up its toxic messes.

If the Pentagon got everything on the wish list it started with this year, these would be the key items:

Contamination from military munitions would no longer trigger a cleanup under the law.

States could no longer fine the military if its activities harm public natural resources.

The military would not have to clean up toxic contamination under the Superfund law until it could be proven that the toxins or hazardous materials had migrated off the base.

Military forces would be allowed to pollute the air at a higher rate.

And, the military would have more discretion to harm or kill marine mammals such as dolphins, whales, sea otters and manatees under the Marine Mammal Protection Act.

Most of these provisions have fallen out of both the House and Senate versions of the bill, leaving the issue of critical habitat under the Endangered Species Act as the central bone of contention in conference. Still, environmentalists say that the Readiness and Range Preservation Initiative reflects the environmental ethic of the Bush administration.

"The Bush administration is not going to let this go until it gets all the exemptions from public health laws that it wants," Wetzler said. "This is a fight which is not going away."

Assessing blame

What both sides say they agree on is that the chief threat to species and training is the voracious civilian communities outside.

"We see eye to eye on that," Wetzler said.

Standing in front of a base map showing layer after layer of areas that could be set off-limits to Marines if some environmental groups got their way, Norquist, the Marine environmental official, shook his head.

"This is ominous," Norquist said. "This threatens the ability of this base to fulfill its mission to be a primary training base."

Norquist said a recent study by Harvard University predicted that the areas surrounding Camp Pendleton would reach a state of maximum growth by 2010, cutting the available habitat in the civilian areas to almost nil and thrusting the onus of conservation further onto the military.

"Our mission cannot be mortgaged by that build-out," he said. "We're sorry, but Camp Pendleton cannot pay the price. This is more than a local issue. This is a national asset for national security."

Contact staff writer Darrin Mortenson at (760) 740-5442 or dmortenson@nctimes.com.