PRESENTATION BY: RACHEL JACOBSON DOD DEPUTY GENERAL COUNSEL ENVIRONMENT, ENERGY AND INSTALLATIONS ADC CONFERENCE JUNE 24, 2015 NEPA and Base Closure.

P R E S E N T A T I O N B Y :

R A C H E L J A C O B S O N

D O D D E P U T Y G E N E R A L C O U N S E LE N V I R O N M E N T , E N E R G Y A N D I N S T A L L A T I O N S

A D C C O N F E R E N C EJ U N E 2 4 , 2 0 1 5

NEPA and Base Closure

NEPA Process, General

BRAC and NEPA Selection Phase: NEPA Not Required

Secretary of Defense prepares and submits list of recommended installations to Congress and BRAC Commission. (No NEPA; no judicial review)

Commission reports to the President accepting, rejecting or modifying recommendations. (No NEPA; no judicial review)

President either sends recommendations to Congress, or remands back to the Commission. (No NEPA; no judicial review)

If Congress doesn’t disapprove the President’s recommendations, they become law. (No NEPA; no judicial review)

BRAC and NEPADisposal Phase Requires NEPA

Disposal phase requires NEPA.If environmental effects are likely, and no CATEX

available, must perform additional NEPA analysis.If Service cannot certify in an Environmental

Assessment that there will be no significant impact from disposal, it must prepare an EIS with formal public participation.

EIS process concludes with a Record Of Decision (ROD) concerning disposal of the base closure (BRAC) property.

ROD represents a necessary element of the property conveyance process; disposal and redevelopment cannot begin until ROD has been issued.

BRAC and NEPADisposal Phase Requires NEPA

If EIS is required, Services must consider: Environmental impact of the proposed disposal and the

impacts of all reasonably anticipated uses of the property. Alternatives only to the proposed disposal and reuse plan,

including the "no-action" alternative. Adverse impacts on the environment under the Endangered

Species Act, Clean Water Act, Clean Air Act, and protected resources such as historic buildings and archeological sites under the National Historic Preservation Act.

Mitigation actions that would minimize adverse impacts on the environment, including wetlands and habitats for threatened or endangered species, and protected resources such as historic structures.

BRAC and NEPADisposal Phase requires NEPA

Military Services must evaluate under NEPA all reasonable disposal/reuse alternatives - including non-disposal as no-action alternative – and associated environmental consequences before the property can be disposed.

In 1996 Congress amended BRAC to require the Military Departments to use the LRA reuse plan as preferred alternative in conducting NEPA analysis.

BRAC and NEPADisposal Phase Requires NEPA

NEPA triggered when reuse application plan submitted to Military Service.

Final Agency Action: Decision to apply CATEX, adoption of FONSI, Final EIS/ROD.

Under BRAC, any judicial challenges to disposal/reuse decision must be brought within 60 days of Final Agency Action.

NO judicial review of actions of Commission, President or Congress in BRAC process.

Example of BRAC Closed Base: Naval Air Station Joint Base Willow Grove

Horsham, PA

• Sept. 2005: BRAC Commission recommends closure of Naval Air Station Joint Base Willow Grove.

• Nov. 2005: Recommendation approved by President Bush and accepted by Congress, with September 2011 closure deadline.

• Sept. 2010: Navy declares NAS-JRB Willow Grove surplus property. • Sept. 2011: NAS-JRB Willow Grove officially closed.• April 2012: NAS-JRB Willow Grove Redevelopment Plan and Homeless

Assistance Submission submitted to the U.S. Department of Housing and Urban Development and Navy. [Submission triggers NEPA]

• August 2012: Local Redevelopment Authority approved to implement community redevelopment plan.

• Jan. 2014: LRA submits Economic Development Conveyance application to Navy.

• Jan. 2015: LRA selects master developer.• March 2015: Navy announces the availability of the Final EIS for the Disposal

and Reuse of NAS-JRB Willow Grove in the Federal Register.• June 2015: Navy issues ROD for NAS-JRB Willow Grove, published in the

Federal Register.

10 U.S.C. § 2687

Under 10 U.S.C. §2687, for military installations at which at least 300 civilian personnel are authorized to be employed, the Secretary of Defense or a secretary of a military department must submit to Congress the following information before taking action to close a military base:

1. Notification of the closure as part of the Department’s annual request for appropriations. 2. Evaluation of the fiscal, local economic, budgetary, environmental, strategic, and operational consequences of the closure. 3. Identification of the criteria used to consider and recommend the military installation for closure, including evaluation of local infrastructure at existing and receiving locations to accommodate the missions, plus costs of transportation improvements.

No action to close a military base can be taken for a period of 30 legislative days or 60 calendar days, whichever is longer, following the day on which the notice and evaluation is submitted to Congress.

10 U.S.C. § 2687

Realignment under § 2687 is any action that both reduces and relocates functions and civilian personnel positions.

Exempted from the definition of a realignment is a reduction in force resulting from workload adjustments, reduced personnel or funding levels, skill imbalances, or other similar causes.

For realignments at installations of at least 300 authorized civilian positions, § 2687 imposes the same restrictions on as a closure if the realignment involves a reduction by more than 1,000, or by more than 50 percent, in the number of civilian personnel.

10 U.S.C.§ 2687

§ 2687 bans the preparation of any facility at another military installation intended to accept employees relocated by the closure or realignment until the conditions listed above have been fulfilled.

• January 2013 amendments to § 2687 prohibit closures and realignments at installations with fewer than 300 authorized DOD civilian personnel for 5 years after the date on which a decision is made to reduce the civilian personnel below 300.

NEPA and 10 U.S.C.§ 2687

No NEPA exemption for base selection process under § 2687. Selection and disposal/reuse decisions both subject to NEPA

compliance and judicial review.Pre-disposal congressional reporting requirements are

proposed agency actions, arguably triggering NEPA analysis.However, pre-disposal congressional reporting requirements

are not final agency actions, thus would not be judicially reviewable.

No 60 day limit to challenge final EIS/ROD supporting base disposal and reuse decision; subject instead to six-year default statute of limitations for Administrative Procedures Act challenges.

As a practical matter, NEPA analysis is substantially similar to § 2687 congressional reporting requirements.

Conclusions

Both processes take a long time.Both processes allow for public input.Both processes allow for disposal/reuse.Both processes require NEPA – albeit at different

stages.Both processes are subject to judicial review – albeit

at different stages.NEPA analysis substantially similar to pre-disposal

reports to Congress required by 10 U.S.C.§ 2687.

Observation: Services not using 10 U.S.C.§ 2687 authorities for base closures.

ExcessFederal Transfer

DiscountConveyance

NegotiatedSale

PublicSale

AGENCY REPORTS PROPERTY

EXCESS TO GSA FORDISPOSITION

DETERMINED SURPLUS IF NOT TRANSFERREDTO ANOTHER

FEDERAL AGENCY

PROPERTY AVAILABLE

FOR CERTAIN PUBLIC USESUP TO 100%DISCOUNT

TO ELIGIBLEPUBLIC BODIES

FOR OTHERPUBLIC USES FAIR MARKET

VALUE REQUIRED

OFFERED TO PUBLIC AND

PRIVATE PARTIES VIA

AUCTION ORSEALED BID

FAIR MARKET VALUE REQUIRED

HOMELESS*AIRPORT

CORRECTIONALEDUCATIONHISTORIC

SELF HELP HOUSINGPARK & RECREATION

PUBLIC HEALTHLAW ENFORCEMENT

EMERGENCY RESPONSEWILDLIFE CONSERVATION

Regulatory Compliance

PROPERTY ACT DISPOSAL PROCESS