Submission

Summary of the matter addressed in the submission:

The Submitters allege that the United States of America is failing to effectively enforce its environmental law, namely the National Environmental Policy Act (NEPA), with respect to the United States Army’s operation of Fort Huachuca, Arizona. According to the Submitters, the Army has significantly increased the number of people assigned to Fort Huachuca and this expansion also resulted in a corresponding increase in off-base population. The Submitters allege that as the population continues to increase, the water demand upon the limited water resources of the Upper San Pedro basin will increase and that increased pumping from the aquifer that sustains the river threatens to dewater the San Pedro and destroy the unique ecosystem that is dependent upon it. The Submitters further allege that “in 1992, the Army prepared an environmental analysis of impacts of expanding Fort Huachuca. In that document, the Army split off the required analysis of current and future impacts on a cumulative basis, promising to include the cumulative analysis in a separate Master Plan (Environmental Impact Statement)”. The Submitters allege that the analysis was never prepared. The Submitters also state that on July 7, 1994, they brought a claim under NEPA in the United States District Court of Arizona to compel the Army to complete the required cumulative impact analysis. The judge assigned to the case found that the claim was barred by the statute of limitations under the Defense Base Closure and Realignment Act of 1990. The Submitters further note that this procedural ruling barred the Submitters from compelling the Army to complete the NEPA analysis by a court order, even though the Court agreed that the Army’s analysis was insufficient.

Summary of the response provided by the Party:

The Party alleges that “In this case, the Secretariat should not request authorization to prepare a factual record regarding the assertions in the Submission for the following reasons. First, the United States is not failing to effectively enforce it environmental laws as contemplated by Article 14(1) of the NAAEC because the Submitters’ assertions relate to actions that were complete before the Agreement’s entry into force or relate to proposed federal actions that are not ripe for challenge under United States law. Second, the Submitters suggestion that there is an ongoing failure to enforce the requirements of NEPA misstates applicable law. Third, the Submitters failed to pursue private remedies under United States law in a timely manner, and when they did pursue remedies, they abandoned them as moot. Fourth, the development of a factual record could adversely affect the pending judicial appeal by the Southwest Center for Biological Diversity and others of the dismissal of a suit brought under the Endangered Species Act (“ESA”) which arises from the facts that are the subject of the Submission. Finally, the Submission suggests that the Submitters do not have a complete understanding of the activities at Fort Huachuca related to population and groundwater use.”

Names and citations of the environmental laws in question:

National Environmental Policy Act (NEPA), 42 U.S.C. ss. 4321-4370d

Submitter(s):

The Southwest Center for Biological Diversity and Dr. Robin Silver - Represented by Earthlaw