**[NATIONAL WILDLIFE FEDERATION FACTSHEET]{.underline}:**

**FWS Has Repeatedly Granted DOD's Requests**

**That Its Lands Be Excluded From**

#### ESA Critical Habitat Designations

##### In pushing for exemptions from Endangered Species Act (ESA) critical habitat protections, the Department of Defense (DOD) has argued that the ESA lacks sufficient flexibility to exclude DOD lands from critical habitat designations where appropriate. However, as shown below, where the U.S. Fish and Wildlife Service (FWS) has found that DOD's lands are needed for training and listed species are being adequately conserved, it has repeatedly acceded to DOD's requests that those be excluded from critical habitat designations. See also NWF Factsheet: FWS's Case-by-Case Review of INRMPs is Essential for Conserving Imperiled Wildlife. DOD's effort to replace this flexible, case-by-case review with a sweeping ESA exemption is completely unwarranted.

***The following FWS statements from the Federal Register show that,
time and again, FWS has used the flexibility of the existing ESA to
exclude large swaths of valuable habitat on DOD lands from critical
habitat designations:***

1.  [Lompoc yerba santa and Gaviota tarplant (plants) at Vandenberg Air
    Force Base, 6]{.underline}7 FR 67968-01 (November 7, 2002):

"Although measures to provide for the conservation of Eriodictyon
capitatum or Deinandra increscens ssp. villosa are not currently
included in the draft INRMP, the Air Force has committed to incorporate
into their INRMP, and implement, specific measures that will address the
conservation of these species and their habitat where they occur on
Vandenberg. Based on this commitment, we have, therefore, determined
that lands on Vandenberg Air Force Base should be excluded under
subsection 4(b)(2) of the Act because the benefits of exclusion outweigh
the benefits inclusion and will not cause the extinction of the species.
For this reason, we are excluding from the designated critical habitat
those proposed units and portions of proposed units that were located on
Vandenberg."

2.  [1Chlorogalum purpureum (a plant) at Camp Roberts and Ft. Hunter
    Liggett]{.underline}, 67 FR 65414-01 (October 24, 2002­):

"We have revised the proposal to eliminate lands at Camp Roberts under
section 3(5)(A), and lands at Ft. Hunter Liggett under section 4(b)(2).
It is our policy that if any areas containing the primary constituent
elements are currently being managed to address the conservation needs
of Chlorogalum purpureum management or protection, these areas would not
meet the definition of critical habitat in section 3(5)(A)(i) of the Act
and would not be included in this final rule. We have determined that
this is the case at CampRoberts due to their having an approved
Integrated Natural Resources Management Plan which addresses the
conservation needs of Chlorogalum purpureum.

We have also determined that the direct and indirect costs to the Army,
including reduction in military readiness, from designation of critical
habitat at Ft. Hunter Liggett are such that the benefits of excluding
those lands exceed the benefits of their inclusion.

3\. [Monterey Spineflower at Naval Postgraduate School,]{.underline} 67
FR 37498-01 (May 29, 2002)

"In their comments on the proposed rule, the DON requested that the
lands of the School be excluded from the Marina unit of critical habitat
because of the protections and management actions provided for
Chorizanthe pungens var. pungens as part of the INRMP. We evaluated the
INRMP and found that it meets the three criteria described

above. We excluded these lands from critical habitat under the section
3(5)(A) definition."

# Riverside Fairy Shrimp at Miromar AFB and Camp Pendleton 67 FR 59884-01 (September 24, 2002) 

# 

# \[NOTE: This designation was vacated by a federal court on October 30, 2002, after an industry group claimed that FWS's economic impact analysis was not sufficently broad. *See* Building Ind. Legal Defense Found. V. Norton, 231 F. Supp. 100 (D.D.C. 2002). The court required FWS to complete a new designation by July 2004.\]

### "To date, Miramar is the only DOD installation that has completed a final INRMP that provides for sufficient conservation management and protection for vernal pools and the Riverside fairy shrimp. We reviewed this plan and determined that it addresses and meets the three criteria. Therefore, lands on Miramar (proposed Critical Habitat Unit 5) do not meet the definition of critical habitat, and they have not been included in this final designation of critical habitat for the Riverside fairy shrimp." 

### "To date, as the INRMP for Camp Pendleton has not yet been completed and approved, these lands meet the definition of critical habitat. Nevertheless, we have determined that **it is appropriate to exclude training areas on Camp Pendleton from this critical habitat** **designation under section 4(b)(2).** The main benefit of this exclusion is ensuring that the mission-critical military training activities can continue without interruption at Camp Pendleton while the INRMP is being completed."

"The proposed critical habitat designation included about 2,295 ha
(5,670 ac), or about 10 percent of the base. This exclusion does not
apply to the vernal pool complexes in

the Wire Mountain Housing Area, within the Cockleburr Sensitive Area,
and lands leased to the State of California and included within San
Onofre State Park. Because these lands are used minimally, if at all, by
the Marines for training, the 312 ha (770 ac) of lands proposed on Camp
Pendleton and within the San Onofre State Park are retained in the final
designation."

[California Red-legged Frog]{.underline} 66 FR 14626-01 (March 13, 2001)

"During the comment period for the proposed determination of critical
habitat for the California red-legged frog, we received and subsequently
evaluated a final INRMP for Vandenberg Air Force Base found in Units 23,
24, and 26. This plan addresses the California red-legged frog as a
covered species and provides conservation measures for the species.
Based on this plan and Vandenberg\'s section 7 consultation history,

we have determined that the conservation measures afforded the
subspecies are sufficient to assure its conservation on the base.
Therefore, we have excluded Vandenberg Air Force Base from the final
determination of critical habitat for the red-legged frog resulting in a
reduction of approximately 38,445 ha

(95,000 ac) from these units."

"We also received and evaluated a request from Camp Parks Reserve Forces
Training Area found in Unit 15 and Camp San Luis Obispo found in Unit
21, for exclusion from final designation because of the impact a final
designation would have on their training-critical mission. The proposed
designation included about 90 percent of both installations. After
evaluation of the benefits of inclusion and the benefits of exclusion,
we have excluded Camp Parks resulting in a reduction of approximately
857 ha (2,118 ac) in Unit 15 and CSLO resulting in a reduction of
approximately 2,272 ha (5,613 ac) in Unit 21 from this final
designation."

# Arroyo Toad 66 FR 9414-01 (February 7, 2001) 

# 

# \[NOTE: This designation was vacated by a federal court on October 30, 2002, after an industry group claimed that the economic impact analysis was not sufficiently broad. *See* Building Ind. Legal Defense Found. V. Norton, 231 F. Supp. 100 (D.D.C. 2002). The court required FWS to complete a new designation by July 2004.\]

"Arroyo toad numbers on Camp Pendleton are significant and are inclusive
of the few remaining populations along the coastal plain."

"\[W\]e have determined that it is appropriate to exclude Camp Pendleton
from this critical habitat designation under section 4(b)(2). The main
benefit of this exclusion is ensuring that the mission-critical military
training activities can continue without interruption at Camp Pendleton
while the INRMP and programmatic uplands consultation are being
completed. This exclusion does not include that part of Camp Pendleton
leased to the State of California and included within San Onofre State
Park (including San Mateo Park) and those agricultural leased lands
adjacent to San Mateo Creek. Because these lands are used minimally, if
at all, by the Marines for training, the lands proposed within the state
park and agricultural leases are retained in the final designation."

"Fort Hunter Liggett seemed most concerned in their comments about the
inclusion of what they termed \"marginal and unsuitable\" habitat and
the resulting consultation requirements, and the perceived need to
reinitiate consultation on certain actions. We believe we have
adequately addressed much of their concern by eliminating the
northernmost reach of the river that was proposed, and by the reduction
in grid cell size to eliminate such marginal habitat (see Changes from
the Proposal section)."

"A primary concern expressed by Fallbrook Naval Weapons Station is that
the designation of critical habitat within certain developed areas will
impose additional restrictions on their operations. However, existing
structures, ordnance storage magazines and bunkers, and other developed
areas do not provide the primary constituent elements necessary for the
arroyo toad and thus by definition are not critical habitat."

[Mexican Spotted Owl]{.underline} 66 FR 8530-01 (February 1, 2001)

\[NOTE: In *Center for Biological Diversity v. Norton*, 240 F. Supp. 2d
1090 (D. Ariz. 2003), the court overturned the critical habitat
designation for the Mexican spotted owl on the ground that that U.S.
Forest Service lands could not legitimately be excluded from a critical
habitat designation on the basis of the "special management" language in
ESA §3(5). However, the court upheld FWS's exclusion of tribal lands as
within FWS's broad authority under ESA §4(b)(2). Thus, the ruling does
not remove FWS's flexibility to exclude DOD lands from a critical
habitat designation on the basis of a satisfactory INRMP and the
benefits to military training that the exclusion would provide. *See*
NWF Factsheet: DOD's Argument for an ESA Exemption is Based Upon a
Misstatement of the Law.\]

"Fort Carson, Colorado, provided information during the comment period
that indicated the Mexican spotted owl is not known to nest on the
military installation and the species is a rare winter visitor.
Protected and restricted habitat is also not known to exist on Fort
Carson. Further, Fort Carson is updating the Integrated Natural
Resources Management Plan (INRMP) to include specific guidelines and
protection measures that have been recently identified through informal
consultation with us. The INRMP will include measures to provide
year-round containment and suppression of wildland fire and the
establishment of a protective buffer zone around each roost tree. The
target date of completion for this revision is early 2001. Fort Carson,
through consultation with us, indicated they will ensure that the INRMP
will meet the criteria for exclusion. They also provided additional
information and support to indicate that no protected or restricted
habitat exists on the base, and asked to be excluded from the final
designation. We agree that Fort Carson should be excluded from the final
designation."

[Coastal California Gnatcatcher]{.underline} 65 FR 63680-01 (October 24,
2000)

"To date, Marine Corps Air Base Miramar is the only DOD installation
that has completed a final INRMP that provides for sufficient
conservation management and protection for the gnatcatcher. We have
reviewed this plan and have determined that it addresses and meets the
three criteria. Therefore, lands on Marine Corps Air Base Miramar do not
meet the definition of critical habitat and have been excluded from the
final designation of critical habitat for the gnatcatcher."

In contrast to Marine Corps Air Base Miramar, other military
installations within the area proposed as critical habitat for the
gnatcatcher have not yet completed their INRMPs. Most notably, Marine
Corps Base Camp Pendleton (Camp Pendleton) represents one of the largest
contiguous blocks of coastal sage scrub in southern California. The base
provides habitat for numerous core populations of gnatcatchers and
essential habitat linkages between core populations in northern San
Diego County to those in southern

Orange and southwestern Riverside Counties. In light of these factors,
we proposed 20,613 ha (50,935 ac) of the approximately 50,000 ha
(125,000 acre) base as critical habitat for the gnatcatcher."

"During both public comment periods for the proposal, the Marines
concluded that the designation, if it were to become final, would
cripple their ability to conduct their critical training activities.
They asserted that \"this overwhelming proposal \[if made final\] will
have a long term, cumulative and detrimental impact on \[their\]
mission.\" The proposed critical habitat encompassed more than 40
percent of the Base. Out of the 46 training or joint use areas on Camp
Pendleton, the proposal included all of 22 and portions of 9 such areas,
which were concentrated on the coastal portion of the Base. In addition,
the proposal included three of four principal landing beaches and the
key inland training areas adjacent to these beaches where Marines train
in amphibious warfare, large and small tactics, and warfighting skills.
Camp Pendleton is the Marine Corps\' only amphibious training base on
the Pacific coast."

"Today, as the INRMP has not yet been completed and approved, these
lands on the base meet the definition of critical habitat. Nevertheless,
**we have determined that it is appropriate to exclude Camp Pendleton
from this critical habitat designation under section 4(b)(2).** The main
benefit of this exclusion is ensuring that the mission-critical military
training activities can continue without interruption at Camp Pendleton
while the INRMP is being completed."

"In particular, the Marines implement a set of \"programmatic
instructions\" that create 500-foot buffers around each 1998 gnatcatcher
observation. These avoided areas, after eliminating overlapping buffers
and off-Base areas, total about 3,343 ha (8,260 ac), or a little less
than 7 percent of the entire area of Camp Pendleton. Although avoiding
these areas constrains Marine training activities to some degree, the
effectiveness of their overall mission is not compromised. The proposed
critical habitat designation, however, included about 20,613 ha (50,935
ac), or, to reiterate, about 40 percent of the Base. If this area is
included in the final designation of critical habitat for the
gnatcatcher, the Marines would be compelled by their interpretation of
the Endangered Species Act to significantly curtail necessary training
within the area designated as critical habitat, to the detriment of

mission-critical training capability, until the consultation is
concluded, up to a year from now. As a result, this increase in the
extent of avoided areas would greatly restrict use of the Base, severely
limiting the Base\'s utility as a Marine training site."

"This **exclusion does not include that part of Camp Pendleton leased to
the State of California and included within San Onofre State Park**
(including San Mateo Park). Because these lands are used minimally, if
at all, by the Marines for training, the 1,195 ha (2,960 ac) of lands
proposed within the state park are retained in the final designation.
These lands do not include lands leased for agricultural purposes."

# San Diego Fairy Shrimp 65 FR 63438-01 (October 23, 2000)

"We evaluated Department of Defense (DOD) Integrated Natural Resource
Management

Plans (INRMPs) for DOD land that was within the proposed critical
habitat to

determine whether any INRMPs met the special management criteria. To
date,

Marine Corps Air Base, Miramar is the only DOD installation that has
completed a

final INRMP that provides for sufficient conservation management and
protection

for the San Diego fairy shrimp. We reviewed this plan and determined
that it

addresses and meets the three criteria. Therefore, lands on Marine Corps
Air

Base, Miramar no longer meet the definition of critical habitat, and
they have

been excluded from the final designation of critical habitat for the San
Diego

fairy shrimp."

### "In contrast to Marine Corps Air Base Miramar, Marine Corps Base Camp Pendleton (Camp Pendleton) has not yet completed their INRMP. Camp Pendleton has several substantial vernal pool complexes that support the San Diego fairy shrimp. In light of these factors, we proposed 4,902 ha (12,114 ac) of the approximately 50,000 ha (125,000 acre) base as critical habitat for the San Diego fairy shrimp. Out of the 46 training or joint use areas on Camp Pendleton, the proposal included all of five such areas, which were concentrated on the coastal portion of the Base. In addition, the proposal included habitat found elsewhereon the base."

### "Today, as the INRMP has not yet been completed and approved, these lands on the base meet the definition of critical habitat. Nevertheless, we have determined that it is appropriate to exclude Camp Pendleton from this critical habitat designation under section 4(b)(2). The main benefit of this exclusion isensuring that the mission-critical military training activities can continue without interruption at Camp Pendleton while the INRMP is being completed."

*For more information, contact Corry Westbrook, NWF Legislative
Representative, at 202-797-6840,* <westbrook@nwf.org>*, or John
Kostyack, NWF Senior Counsel, at 202-797-6879,*
[kostyack@nwf.org.](mailto:ostyack@nwf.org.)