Some of the complex issues around encroachment were presented in Chapters 1 and 3. In response to these challenges, numerous policies have been developed by the DoD and others to address and mitigate the many impacts of encroachment.
All the military services focus on community partnering and intergovernmental planning to achieve compatible land use and zoning to protect ever-evolving management needs. They integrate these activities as appropriate with such programs as the Air Installations Compatible Use Zones (AICUZ) program (http://tinyurl.com/33xcpt) and the Joint Land Use Study (JLUS) Program (http://tinyurl.com/3yfaoj).
For the past several years, this partnership approach has largely been accomplished through efforts to comply with the provisions of Section 2684a of the FY2003 Defense Authorization Act, 10 USC 2684a. The most conspicuous element of this effort has been the establishment of the Readiness and Environmental Protection Initiative (REPI), a component of the Sustainable Range Initiative.
The Army began the first formal program to address encroachment in 1995 at Fort Bragg, N.C., where it worked with stakeholders in and around the installation to develop the Fort Bragg Private Land Initiative (also called the North Carolina Sandhills Conservation Partnership) as a way to work cooperatively to conserve private lands to help restore the red-cockaded woodpecker, a federally listed endangered species. This effort led to the Armyโs partnering with The Nature Conservancy and other stakeholders to buy lands or interests from willing owners. The lands were then used as additional off-base habitat for the bird, while providing open space for the community and a buffer from encroachment for the installation. The results were that the Army could once again use training lands that had been previously set aside exclusively to protect woodpecker habitat, habitat for the bird was expanded, and open space was preserved from encroachment around Fort Bragg, thus reducing potential conflicts with military activities. In 2005, Fort Bragg reached a woodpecker population size of 436 groups, an increase from 350 in 2000, and exceeded the population recovery size dictated by the Endangered Species Act. (See https://www.denix.osd.mil/denix/Public/Library/NCR/Documents/RCW-factsheet- Aug06.pdf)
From its highly successful initiative at Fort Bragg, the Army developed the Army Compatible Use Buffer Program (ACUB) that allows for the establishment of conservation easements and other strategies to protect its training ranges from encroachment. (http://www.sustainability.army.mil/tools/programtools_acub.cfm). Through the ACUB program, the Army enters into cooperative agreements with partners to purchase land or interests in the land and/or water rights from willing sellers as part of a comprehensive approach to protect its testing and training requirements. Under these arrangements, cost-sharing agreements are individually negotiated between the Army and the partners.
Building on DoDโs REPI guidance, the Navy and Marine Corps have also addressed encroachment issues in the past several years through what they term Encroachment Partnering (EP) Programs, part of an overall Encroachment Control Program that develops encroachment action or control plans that delineate short, medium, and long-term strategies for each installation. The Department of the Navyโs practice has been to acquire a recordable interest in property in the form of a restrictive use or conservation easement or deed covenants similar to a real estate civil easement, in which one party grants permission for a road or utility right-of-way.
The Air Force, probably the military service least impacted directly by infringement, has only recently begun to address the encroachment issues, primarily by focusing on community partnering and intergovernmental planning to achieve compatible land use and zoning to protect ever-evolving airspace management needs.
The authority in 10 USC 2684a represents a significant step forward in encouraging open communication and collaboration between the military and a wide array of stakeholders, leading to successful conservation/compatibility partnerships that are focused on common objectives. These partnerships allow DoD to make clear-cut gains in achieving conservation and protecting the military mission by leveraging funds to accomplish the protection of vital lands and habitats.
Some of the most significant recent environmental and readiness legislation includes efforts to fund conservation easements adjacent to military lands. As discussed above, the DoD and the military services worked with Congress to define a statutory authority to address encroachment. The result was that Congress, in Section 2811 of the National Defense Authorization Act for FY 2003, provided the military with an important new tool for using partnerships to prevent incompatible land use. This new authority allowed DoD to enter into agreements with private conservation organizations or state and local governments to cost-share acquisition of land or interests in land to preserve valuable habitat and limit incompatible land use. These partnerships allow DoD to leverage funds to make clear-cut gains in achieving conservation and protecting the military mission.
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Author
J. Douglas Ripley, Environmental Consultant U.S. Air Force (Retired)
With updates and Additional contributions by: James van Ness, Senior Level Attorney Advisor Office of the Secretary of Defense