14 September 2001

The Honorable Dana Rohrabacher

House of Representatives

Washington, DC 20515

Dear Congressman Rohrabacher:

Thank you for your letter to Secretary Rumsfeld regarding the closure of the Marine corps Air station (MCAS) El Toro, California. I am responding for the Secretary of Defense.

The 1993 Defense Base Closure and Realignment Commission recommended the closure of MCAS El Toro citing limitations on mission growth and force structure changes due to air and ground encroachment around the airfield. Additionally, excess capacity at the Navy force, structure was cited. The Commission’s recommendation regarding closure of MCAS El Toro and realignment of aviation assets to other west coast facilities did not address the future use of the El Toro property.

The Defense Base Closure and Realignment Act of 1990 (the Act) created a process both for identifying and recommending Department of Defense facilities for closure and/or realignment and for disposing of property made excess to the needs of the Department of defense through base closure. The property first must be screened for use by other military departments and federal agencies. Once this initial screening process is completed, any property remaining is considered surplus property. The LRA is tasked with public hearings, performing outreach with homeless providers, and drafting a reuse plan. The department of Housing and Urban Development (HUD) must review the reuse plan and determine if it adequately provides for the needs of the homeless. While the LRA is performing its land use planning function, the military department must undertake any environmental remediation the may be necessary before conveyance of property. The military department must also comply with the National Environmental Policy Act (NEPA) by preparing an analysis of the possible impacts upon the environmental of property disposal and the reasonably foreseeable reuse of the property after disposal.  The military department is required by the Act to consider the LRA's reuse plan a part of the proposed action being evaluated under NEPA.  The Act also requires that the LRA's reuse plan be given substantial deference in the military service's disposal decisions.

The Act directed the Administrator of the General Services to delegate its authority to dispose of property under the Federal Property and Administrative Services Act of 1949 (FPASA) to the Secretary of Defense.  That authority has been redelegated to the Secretaries of the military departments.  Under FPASA, the Navy has the discretion to convey property for public benefit purposes such as commercial airports or parks, to convey the property to State and local governments by negotiated sale, or to sell the property at public sale.  In addition to the conveyances authorized by FPASA, the Act authorizes the disposal of base closure property at no cost to LRA's for economic development.  In most cases, the disposal decision of the military departments have been consistent with the reuse plan; however, the decision whether to convey property for a particular purpose is vested solely at the discretion of the sponsoring agency (for instance, the federal Aviation Adminstration (FAA) for airport conveyances and the National Park Service (NPS) for park conveyance) must determine that the applicant is eligible for a public benefit conveyance and that the property is needed for the intended use.  The sponsoring agency then must recommend in writing that the property be conveyed for the identified public benefit.  Deeds executed under the public benefit conveyance process contain a provision requiring that the property revert to federal control if it is not used for the public purpose for which it was obtained.

 With this general discussion serving as background information, responses to your specific questions are as follows:

1. Each disposal authority identifies the entities that are eligible to acquire property under that authority. For example, only an LRA is eligible to apply for and acquire property through an economic development conveyance: only State and local governments are eligible to acquire property for park purposes. Orange County would be eligible to acquire property through numerous public benefit conveyances as well as through negotiated sale.  If the Navy were to dispose of some of the property by public sale, it would be conveyed to the highest bidder, which may or may not be Orange County.

2. The Department of Defense Base Reuse Implementation Manual (BRIM) urges the military departments to expedite the disposal process in order to assist communities with economic recovery and to reduce caretaker costs for the military departments.  The time limits in the BRIM are notional and establish goals but do not create a legal bar to considering applications for property after these time limits have expired, especially where, as in the case of El Toro, a Public Benefit Conveyance application would be submitted by the LRA itself.  If consideration of different land uses may require additional analysis under NEPA, at potentially a large expenditure of additional resources and time, a military department may be unwilling to delay disposal of property by considering new applications for the property.

3. There is a specific federal sponsoring agency for each type of public benefit conveyance and, without the recommendation of the sponsoring agency, the property cannot be conveyed through the public benefit conveyance process.  In some types of public benefit conveyances, responsibility for the property is assigned to the sponsoring agency and the sponsoring agency then must sign the deed to convey the property to the applicant.  For example, for a public benefit conveyance for parks, the NPS would recommend that Navy assign the property to the NPS.  The Navy would assign the property to the NPS, and the NPS then would sign the deed conveying the property to the State or local government applicant.  Airport public benefit conveyances are slightly different.  While the FAA must recommend that the property be conveyed to the state or local government applicant, the property is not assigned to the FAA.  If the Secretary agrees with that recommendation, the navy would execute the deed conveying the property directly to the state or local government applicant.

4. As the disposal agency for the former MCAS El Toro, the Navy makes the determination regarding the highest and best use of particular parcel.  This determination may include the suitability of the property for a public purpose, such as a school or economic development, as well as the potential monetary return to the government.  A parcel may be suitable for more than one use.  If an eligible entity makes an application for a public benefit conveyance, the sponsoring agency, in accordance with its regulations, will evaluate the eligibility of the applicant, its need for the property and the property's suitability for the intended purpose.  The applicant must submit all information required by the sponsoring agency to establish its eligibility and its need for the property.  If there is more than one application for a particular public benefit conveyance, for example, both an elementary school and a junior college apply for the same parcel, the Department of Education would approve on application and recommend assignment of the property for purposes of a public benefit conveyance based upon that approved application.

5. An application by a state or local government for conveyance of federal property for use as an airport is submitted to the FAA rather than DoD.  Orange County prepared a general reuse plan for the former MCAS El Toro property that centered upon airport development.  After adopting the general reuse plan, Orange County prepared a detailed airport Layout Plan (ALP) identifying those portions of the former MCAS El Toro property needed for a commercial airport and related support facilities.  The ALP is a public document and was the subject of an Environmental Impact Report prepared under the California Environmental Quality Act.  As part of the public benefit conveyance process, Orange County then submitted that ALP to FAA for review and evaluation. The FAA is currently reviewing the ALP prepared by Orange County.

6. "A Review of Potential Revenue Sources for Funding the Millenium Plan for MCAS El Toro" (Final report) identifies a number of proposed uses for the former MCAS EL Toro property.  Only property that would be dedicated to public park and public recreational purposes could be conveyed under a public benefit conveyance for park purposes.  Property intended for retail and commercial uses could be conveyed under an economic benefit conveyance or by public sale.  An economic development conveyance may include limited areas of open space and housing under some circumstances.  Property intended for low-income housing could be conveyed for assistance to the homeless, or by negotiated sale, depending upon the scope of the program.  Property intended for market- rate housing could be disposed of by public sale.  As stated above, each public benefit conveyance for a particular purpose would require the approval of the sponsoring agency.  For an economic development conveyance, the LRA must submit a detailed application, and the conveyance must be approved by the Office of the Secretary of Defense.  In summary, with the exception of a public sale, there is an application and approval process for all other forms of conveyance.  Finally, the Navy cannot make any decisions on the disposal of the property until it has complied with NEPA.  Therefore, it would be premature to evaluate whether the Navy would dispose of property to implement the Final Report.

7. Any of the former MCAS El Toro property for which an application from an eligible entity is not received, or for which an application is received but not approved, will be conveyed through public sale.

As always, if I can be of any further assistance, please let me know.

    Sincerely,

    /S/

    H.T. Johnson
    Assistant Secretary of the Navy
    Installations and Environment

Click here for Congressman Rohrabacher's press release of November 1, 2001 which claims to be based on this information.

Click here for ETRPA's November 7, 2001 analysis of the Navy letter and its significance.