Navy directs second EIS review

The U.S. Department of Navy conceded on Friday to public and agency concerns over high-magnitude and large-scale training and bombing on Tinian and Pagan, ordering a second round of review of impacts to these two CNMI islands. The Navy disclosed that further analysis is “needed.”

Federal and local government agencies believe the Navy has erroneously and underwhelmingly declared their impacts to be “less than significant.”

The U.S. Environmental Protection Agency, for one, has withheld rating the Navy’s impact documents until further review is completed.

Craig Whelden, executive director of the Marine Corps Forces Pacific—operating under the Department of Navy—disclosed the news in a phone call to Gov. Eloy Inos around 9:30 Friday morning.

Whelden separately disclosed the news to Saipan Tribune in an email the same morning.

Administration officials heavily involved with coordinating a response to the military’s live-fire plan took the news as a win for the CNMI and a win for the National Environmental Policy Act, which mandates the impact review.

Whelden was pressed on Thursday for his thoughts on the CNMI’s request that the Navy furnish a second draft environmental impact statement for its live-fire project.

The Navy’s announcement of “supplemental” EIS came on top of the close of the formal comment period for the Navy’s first draft.

Whelden told Saipan Tribune that the supplemental EIS is expected to be finished in the spring of 2016. Its “full scope” would not be known until they review and consider all public and agency comments received up to Friday, Whelden said.

“As a result of the information we’ve received to date, we’ve identified a need to conduct additional analysis of potential impacts to the groundwater aquifer on Tinian and coral on Tinian and Pagan, including associated mitigation,” Whelden said in the email.

“We’ve received many comments in the past six months and will be assessing them in the weeks to come… [When the EIS is completed] we will notify the CNMI, and the public will have an opportunity to review and comment during a review period.  We appreciate all the public input to date and it will all be considered in preparing the final EIS,” Whelden said.

In total, the CNMI has responded to the Navy’s plans with well over a thousand pages of official comment, administration officials have said.

Inos, in his comments, said the CNMI has provided two-thirds of Tinian to the U.S. military, and the entire island of Farallon de Medinilla for training purposes.

He said CNMI citizens volunteer to serve in the Armed Forces at rates far exceeding the national average, and that the community has worked hard to collaborate with the Department of Defense.

“Unfortunately, the [CNMI live-fire project] threatens to compromise that partnership,” Inos writes. “The Navy has proposed to take the entire of island of Pagan for large-scale, live-fire training (including artillery, aerial, and ship-to-shore bombardment) and to radically and unilaterally alter the previously-agreed activities carried out on the military use portion of the island of Tinian.”

“As proposed, these actions represent an existential threat to our tourism-driven economy, our fragile ecosystem, our cultural resources and, indeed, our way of life,” Inos said. “I must respectfully insist that the Navy withdraw and reconsider its proposal.”

Rep. Angel Demapan (R-Saipan), chairman of the House Committee on Foreign and Federal Relations, said the Defense Department’s admission on Friday is a “victory for the people of the Commonwealth.”

“For many months, an overwhelming majority of our people have stood together with a strong objection to the proposals by the DoD to conduct live-fire training in our islands because we have legitimate concerns about the dangers posed to our natural resources and our way of life in these fragile island communities,” Demapan said. “We never objected to patriotism nor do we object to our armed forces. We simply believed that other alternatives needed to be considered in order to strike a balance between national security and the economic welfare of the people who proudly call the Marianas home.”

“This latest development is a positive indication that resiliency can defeat relentlessness,” Demapan said.

EPA: Further review

The EPA, in their comment letter, tells Whelden that a number of substantial issues warrant further review and analysis, and consideration of additional alternatives.

“…We fully support the [Navy’s] recent decision to prepare a supplemental draft EIS to address” concerns the Navy has received, wrote EPA enforcement division director Kathleen H. Johnson in the EPA cover letter. “EPA will defer issuing a rating until the [supplemental EIS] is circulated.”

The EPA letter was dated Sep. 29, some three days before the Navy announced its decision publicly.

The Navy has not discussed the “vulnerability” of the Tinian aquifer to contamination, according to EPA.

“The analysis does not appear to fully consider the highly permeable Marianas limestone, which underlies most of the project area [on Tinian] and creates high susceptibility to contamination. The DEIS notes that the limestone is porous, allowing water to readily flow through it, and that rainfall percolates rapidly downward into such rock; however, no discussion of the solubility of munitions constituents is included, nor are any protections identified to prevent pollutants from infiltrating the soil and entering the aquifer,” the EPA states.

The EPA wants that the Navy to discuss the solubility of various munitions constituents and other potential pollutants that the proposed action would introduce to surface soils, and the estimated time it would take for these pollutants to reach groundwater. For example, perchlorate, a munitions chemical, from propellant in rocket fuels should be discussed “as it is very soluble and exhibits little to no soil absorption,” the EPA states.

On the impact to corals, the Navy plans to permanently remove 10.3 acres of coral on Tinian to construct land ramps for assault vehicles will result in high-magnitude, severe impacts to coral reefs and marine habitat, says EPA. That 10.3 acres would include another 10.3 acres for indirect impacts.

“The Navy does not adequately evaluate a full range of alternatives and demonstrate that the ramp at Unai Chulu is the Least Environmental Damaging Practicable Alternative” as required by the Clean Water Act, Johnson said. “It does not identify appropriate mitigation to offset the project impacts nor whether the Navy could mitigate the impacts in accordance” with this federal law, Johnson adds. The EPA believes this failure to adequately offset significant project impacts is “grounds for denial” of Clean Water Act permit application.

Consultant: Lack of context

“The total land mass of the CNMI is about 175 of the size of Rhode Island,” writes Jim Keany, ESA biological resources director, in their memo to Inos detailing their comments on the live-fire project. ESA is a consultant to Inos on the live-fire project.

“The [Navy] does not acknowledge the special context of island ecology and lacks science-based analysis,” Keany said. “The EIS consistently uses acres of habitat loss as an index of magnitude of effects to habitat and wildlife. While loss of 100 acres of habitat would have relatively minor effects to common wildlife [in] the mainland U.S., loss of the same area of habitat on a small island that supports endemic and rare species has vastly different consequences,” Keany said.

The draft EIS also neglects environmental justice.

“The CJMT EIS analysis acknowledges that the entire population of the CNMI is minority and low income, yet makes the astounding conclusion that there would be no disproportionate impact to those populations because all would be impacted equally,” Keany said. “This is analogous to determining that it was fair to place a toxic incinerator in a low-income minority because all those in the town would be similarly affected—as opposed to placing it somewhere else.”

There are two executive orders relevant to the NEPA compliance process and to the CJMT project.

Executive order 12898 directs all federal agencies to address adverse human health effects from its program on minority and low-income communities.

Executive order 13045 requires federal agencies to assess environmental health risks and safety risks that would disproportionately impact children.

Government consultants believe the Navy has failed the spirit and letter of both orders.

Another training location

While the Navy has essentially ordered another year of environmental impact review, its decision to continue with their plans despite thousands of pages of comments balking at the military’s proposal has some officials concerned that the Navy is entrenched for the long haul. If the Navy were to continue with their project, they would have to provide a basic requirement of federal law—an adequate analysis of “alternatives,” according to Dentons LLC, a firm hired to review the live-fire project.

Dentons argues that U.S. courts have repeatedly ruled that if an agency fails to consider viable or reasonable alternatives, an EIS is inadequate.

“…Our battle is not over,” Demapan told Saipan Tribune.

“Despite our community’s strong stance to preserve and protect our pristine island environment, and despite the DoD’s admission of error, it is still troubling that they have decided to still make an attempt at a supplemental environmental impact study,” Demapan said. “They should invest their time and energy in considering a better alternative in a place where they will not diminish important natural resources and in a place where they will not drastically alter the economic landscape of the community.”

“An alternative analysis is not merely a matter of paperwork,” wrote Dentons lawyers Nicholas Yost, Matthew Adams, and Jessica Duggan. “Or an exercise in justifying pre-existing agency preferences.”

According to Dentons, the Navy has failed to evaluate training in the following areas:

In Japan and Korea, where U.S. forces currently and can and do use training ranges in both countries

In Australia, where U.S. forces regularly train, and where the two countries have agreed to extend long-term their training arrangements.

In the Philippines, where U.S. has trained for years, and have conducted large-scale amphibious exercises in island environments.

In Hawaii, where there exists already multiple testing and training ranges.

In Chuuk or Palau, where the Navy has reportedly suggested it could move the training if the CNMI does not approve a land use agreement allowing military training on Pagan. “Presumably it would not have made this suggestion if Chuuk or Palau were not reasonable alternatives,” Dentons said.

Dentons says these “legal deficiencies,” among others, must be corrected. If not, the Navy will “not have a legally-adequate basis for reaching a decision on the CJMT” live-project.