Compliance with the ESA has long been a major component of the DoDโs environmental programs. For that reason, there was considerable concern when the FWS began a court-ordered effort to designate critical habitat for all federally listed species. The concern in the DoD with the new FWS effort was that declaring critical habitat would add a new administrative burden on military installations with no added benefit to listed species. The DoD argued that it was already providing extensive protection to listed species through its formal consultations with the FWS and the conservation measures specified in installation INRMPs. It therefore argued that designating military land as critical habitat would only add an additional compliance and consultation burden on the DoD while not enhancing protection for listed species.
Although the DoD endangered species policy is well established in DoD Directive 4715.3 and the individual services natural resources directives, recent legislative initiatives regarding the designation of critical habitat have necessitated some modifications to the DoD policy which are yet to be formalized. However, the Army has prepared specific guidance regarding the designation of critical habitat under the ESA that addresses the issue of using the existence of an installation INRMP to preclude the designation of critical habitat, as discussed below.
The DoD got relief from the provision in the FY 2004 Defense Authorization Act (Section 318). This legislation granted the FWS specific authority to exempt DoD lands from the designation of critical habitat provided:
- A comprehensive and approved INRMP was in effect.
- The INRMP specifically addressed the conservation of the species under consideration.
- The INRMP was implemented.16
Next Page: Migratory Bird Treaty Act
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