On August 13 the President signed the John S. McCain National Defense Authorization Act for Fiscal Year 2019. The $716 billion H.R. 5515, authorizes appropriations for the Department of Defense for procurement of everything from aircraft, missiles, ammunition, shipbuilding and space defense to military installation construction; and is arguably the most significant environmental legislation enacted anywhere this year.
On page 627 of the 1,360 page bill, for the first time there is a section entitled, “INCLUSION OF CONSIDERATION OF ENERGY AND CLIMATE RESILIENCY EFFORTS IN MASTER PLANS FOR MAJOR MILITARY INSTALLATIONS.”
In military speak, ‘‘the term ‘energy and climate resiliency’ means anticipation, preparation for, and adaptation to utility disruptions and changing environmental conditions and the ability to withstand, respond to, and recover rapidly from utility disruptions while ensuring the sustainment of mission-critical operations.’’
There is no doubt this is a significant shift in emphasis.
And in a related matter, the annual Act for the first time contains a “SEC. 2805. UPDATES AND MODIFICATIONS TO DEPARTMENT OF DEFENSE FORM 1391, UNIFIED FACILITIES CRITERIA, AND MILITARY INSTALLATION MASTER PLANS.”
The enactment requires the Secretary of Defense, with respect to any proposed major or minor military construction project to disclose whether a proposed project will be sited within or partially within a 100 year floodplain. For proposed projects that are to be so sited, the Secretary is required to undertake an assessment of flood vulnerability including a review of alternative construction sites. Most dramatically, the Secretary must now mitigate the flood risk of every project within or partially within the 100 year floodplain, including a 2 feet above the base flood elevation for non-mission critical buildings 3 feet above the base flood elevation for mission critical buildings.
.. consider the impact at Naval Station Nolfolk alone, the world’s largest naval base and all but completely below the 100 year flood plain.
Two feet freeboard construction has become an inexpensive response to concerns over rising sea levels on the East coast and the Department of Defense is on the bleeding edge with 3 feet freeboard.
While not surprising, neither of these new provisions were objected to by the President. In a written statement issued after the bill signing, the President raised objections to 52 provisions of the Act, but not to either of these environmental mandates, which are entirely consistent with the President’s view (.. wearing his ex-real estate developer hat) of these response to a changing natural environment. Presidents have used signing statements for more than 100 years to express reservations about bills they signed. The statement can be controversial because it allows presidents to reinterpret legislation, or it can even serve as a line item veto to not enforce provisions they find objectionable. But there was no such objection noted here.
These provisions are hugely important because of the size of the Department of Defense real estate portfolio of over 500,000 properties located on more than 30 million acres of land, which have more acre of wetlands and a greater number of endangered species than any other land owner. With real estate holdings in all 50 states, seven US territories, and 70 foreign countries, with over three billion square feet of built facilities, what the Department of Defense does with its real estate drives the broader built environment (on an all but planetary basis).
Given that large real estate footprint and the positive environmental externalities effecting other real estate, the National Defense Authorization Act for Fiscal Year 2019 is arguably the most significant environmental legislation enacted anywhere this year.
And it is likely you will be specifying 3 foot freeboard on your next building.