Senate Provision in Policy Bill Would Clarify Authority for Land Exchanges
- June 30, 2011
- comments: 2
A provision in the Senate version of the fiscal 2012 defense authorization bill would clarify an existing authority allowing the military to exchange parcels to protect installations from encroachment and for other needs.
Now the authority, 10 U.S.C. Section 2869, allows the military services to exchange excess property at active installations to another party who agrees to carry out a land acquisition, most commonly to protect military training or testing from encroachment. The statute also applies to property at a closed or realigned installation as long as the transfer follows an approved reuse plan for the BRAC site.
Exchanges intended to prevent encroachment also rely on Section 2684a, the statute which authorizes the Readiness and Environmental Protection Initiative program.
The language in the Senate version of the authorization bill provides DOD slightly more flexibility in carrying out land swaps, authorizing the military to convey property “to any eligible entity who agrees, in exchange for the real property, to transfer to the United States all right, title, and interest of the entity in and to a parcel of real property, including any improvements thereon under their control, or to carry out a land acquisition.”
The Senate provision also would remove Section 2869′s existing sunset clause, which calls for the property exchange authority to expire Sept. 30, 2013.
The Senate Armed Services Committee approved its version of the authorization bill June 17. The bill, S. 1253, and the committee report, S. Rpt. 112-26, are available on Thomas.
July 05, 2011 at 3:28 pm, Sam Rupe said:
I disagree with your assertion that the Senate bill provides more flexibility to the military services. The Senate Bill changes “to any person” to “any eligible entity”. Although “eligible entity is not defined in 10 USC 2869, it is defined in 10 USC 2684a as state or local government or conservation group. That change would disallow property exchanges with commercial developers (who can acquire the land sought by the military services) or private landowners (who own the land sought by the military services). The “any person” language is much preferable than “eligible entity”. I agree that the Senate’s removal of the sunset date in 10 USC 2869 is good. Note that, in my experience, the Senate professional staff has been hostile to 10 USC 2869 (which originated with then HASC Chairman Duncan Hunter). The Senate professional staff has tried to rescind 10 USC 2869 and, in FY 2010, eliminated the military services’ ability to exchange property for construction projects. In short, when the Senate proposes a change to 10 USC 2869, be wary.
July 05, 2011 at 4:49 pm, Sam Rupe said:
Just a follow up to my prior reply, and to assist you with vetting what I stated. In the FY 2007 National Defense Authorization bills, the House Armed Services Committee (HASC) proposed expanding 10 USC 2869 whereas the Senate Armed Services Committee (SASC) proposed rescinding 10 USC 2869 altogether, with the compromise, to placate the SASC, of inserting a sunset date for use of 10 USC 2869 for non-BRAC property. In the FY 2010 National Defense Authorization bills, the SASC narrowed the scope of 10 USC 2869 whereby the military services could no longer use 10 USC 2869 for property-for-construction or for property-for-military family housing exchanges. The latest change of “any person” to “eligible entity” is a further narrowing of the utility of 10 USC 2869, to the point that the SASC’s proposal to remove the sunset date essentially dilutes something that is already diluted to the point of blandness. If you need extracts from the FY 2007 and FY 2010 bills and committee reports to support what I have explained above, I will be more than glad to send you those by email.
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