# Presentation: 715200

- Dennis Ossenkop, Airports Division
- Karl Lewis, Office of Regional Council
- April 8, 2003

- ST. GEORGE, UTAHREPLACEMENT AIRPORT LITIGATION and
- IT’S IMPACT ON THEENVIRONMENTAL PROCESS

## ENVIRONMENT [April 7, 2003, Airport Improvement Program 101 Workshop][April 8, 2003, 10:15-11:30 am, St. George, Utah, Litigation][April 9, 2003, 10:15-11:30 am, Air Tour Management Plans]  Dennis G. OssenkopRegional Environmental OfficerAirports Division, Northwest Mountain Region1601 Lind Ave. S.W.Renton, WA, 98055-4056425 227 2611dennis.ossenkop@faa.gov Dennis is responsible for the quality and regulatory compliance of all environmental activities (environmental assessments, environmental impact statements, and Federal Aviation Regulation (FAR) Part 150 noise compatibility studies) in the Airports Division.  Dennis also serves as an environmental impact resource person to other Federal Aviation Administration (FAA) lines of business (Air Traffic, Flight Standards, and ANI) within and beyond the Northwest Mountain Region.    Prior experiences include:  Airframe structural design and jet noise reduction research at The Boeing Company, environmental evaluation and noise control at the U.S. Environmental Protection Agency, and 24 years experience with the FAA in development of National Environmental Policy Act environmental assessments and impact statements and FAR Part 150 Noise Compatibility Program documentation.  

## ENVIRONMENT[April 8, 2003, 10:15-11:30 am, St. George, Utah, Litigation] Karl B. LewisSupervisory AttorneyOffice of Regional Counsel,Northwest Mountain RegionFederal Aviation Administration1601 Lind Ave. SWRenton, WA 9805Phone: (425) 227-2161; email: karl.lewis@faa.gov Mr. Lewis has served as FAA counsel since 1977, at FAA headquarters, in its Los Angeles Office, and in recent years in the Seattle area.  In addition to his supervisory duties and litigation responsibilities, he is the Airports and Environmental specialist in this region’s Office of Regional Counsel.  In this capacity, he has handled major environmental projects such as the New Denver Airport EIS, the SEATAC expansion EIS (known as the 3rd runway project), and the redesign of airspace in Seattle (known as the 4-Post plan). 

##                         SESSION OUTLINE A.  Background B.  The Environmental Assessment Noise Analysis C.  The D.C. Circuit Court Decision D.  FAA Team Activities After the Court Decision E.  Impacts of the Court Decision on Environmental Documentation F.  Specific St. George EIS activities to address court requirements G.  All of the above issues extend beyond airport development projects funded by the FAA Airports’ Division, to other lines of business	       

## BACKGROUND

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## The present St. George airport, located in southwestern Utah, does not meet FAA standards and cannot be modified to meet standards or accommodate anticipated future demand because it is built on a plateau. In 1995, the City of St. George prepared an Airport Site Selection Study, Master Plan, and Environmental Assessment (EA) for a replacement airport consistent with FAA standards and capable of accommodating future demand.

## The preferred alternative site is located approximately five road miles southeast of St. George City proper and is situated on lands that are primarily undeveloped and would not require the displacement of any residences.  

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## June 16, 2000:  The draft EA was released for public comment period.  The primary focus of comments dealt with potential environmental impacts of the project (noise) upon Zion National Park (Zion NP), 26 miles distant from the preferred alternative site, and upon the community of Washington City, which is adjacent to the preferred alternative site. The draft and final EA’s addressed the normal topics contained in an EA with significant focus on noise, both locally near the site and at Zion NP.    

## ENVIRONMENTAL ASESSMENT NOISE ANALYSIS

## A special noise study was conducted in response to NPS heightened interest to compare the with and without project noise levels at a point (outside of Zion NP) along the flight path where aircraft departing either present or future airports would meet.  This point (3BV on next slide) is about 12 miles outside of the Park.  Beyond that point and over Zion NP there would be no difference in IFR flight paths, when comparing the no action to the with project alternatives.

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## Year 2008: Forecast an increase of 6 IFR flights (48 from existing airport to 54 with new airport) along this path toward the Park.  Year 2018: Forecast an increase of 2 IFR flights (67 from existing airport to 69 with new airport).At point 3BV: DNL change of +2.2 dBA (to 33.3 dBA), change in Peak Hour LEQ of +2.2 dBA (to 37.5 dBA), change in Time Above 45 dBA of +0.6 minutes/hour.At point 4BV: DNL change of +.1 dBA (to 31 dBA, LEQ change of +.1 dBA (to 35.3 dBA), change in Time Above 45 dBA of +.2 minutes/hour.  

## FAA did not address noise impacts upon Zion NP from other aircraft from other airports because those activities were not directly or indirectly connected to the proposal for a replacement airport and would be the same with or without the new airport.

## Given these small de minimus noise changes, FAA concluded there would be a negligible change in the Zion NP noise environment and issued a Finding of No Significant Impact (FONSI) and a Record of Decision. 

## January 30, 2001:  The FAA approved the final EA and the Record of Decision was signed.  April 2, 2001:  The Grand Canyon Trust files petition for review in D.C. Circuit Court. April 11, 2002:  The Court hears oral arguments

## THE D.C. CIRCUIT COURT DECISION

## May 24, 2002:  The Court renders its’ opinion:  “We remand the case (to FAA) because the record is insufficient for the court to determine whether an EIS is required.  On remand, the FAA must evaluate the cumulative impact of noise pollution on the Park as a result of construction of the proposed replacement airport in light of air traffic near and over the Park, from whatever airport, air tours near or in the Park, and the acoustical data collected by NPS in the Park in 1995 and 1998 mentioned in comments on the draft EA.” 

## FAA TEAM ACTIVITIES AFTER THE COURT DECISION

## September 9, 2002:  FAA makes the decision to prepare an EIS.October 31-November 1, 2002:  FAA team travels to St. George to meet with the city and then on to Zion National Park to meet with park personnel.  The team visited park locations selected by the park superintendent so that FAA can better understand the existing aviation impacts upon the park. 

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## During one of the location visits the team casually talked to several park visitors who reported not hearing any over flights.  Dennis counted 12 GA barely audible over flights during the 1⁄2 hour period.  At a second location the team barely heard (over nearby road traffic) 3 high altitude commercial over flights.

## The EIS scoping process began on September 11, 2002, with a series of direct letters to previous EA commenters, local public notices, and Federal Register notices.  The formal scoping process ended on December 9, 2002. 27 scoping letters were received requesting consideration of, among other issues: aircraft sound over Zion NP, cumulative noise impact analysis, aircraft sound over other National Park units, induced growth created by the replacement airport, visual impacts of aircraft contrails, impacts on migratory birds, a proposed second runway, and psychological effects of aircraft noise on park visitors’ experiences. 

## IMPACTS OF COURT DECISION ON ENVIRONMENTAL DOCUMENTATION

## THERE ARE UNIQUE LEGAL ISSUES ASSOCIATED WITH AIRCRAFT NOISE IMPACTSON NATIONAL PARKLANDS AND OTHER SENSITIVE NATURAL AREASIN THE PROXIMITY OF AIRPORT DEVELOPMENT PROJECTS.

## Courts have previously held that traditional F.A.R. Part 150 guidelines of noise compatibility used at and around urban airports are inappropriate to evaluate and fully protect the natural values associated with non-urban sensitive natural areas. > Under DOT Section 4f (4f) case law, the constructive use doctrine requires evaluation of whether there is a significant impairment of the values of natural areas being newly or increasingly over flown as a result of a project. > FAA and other Federal natural resource agencies have been unable to agree on how to measure aircraft noise over sensitive natural areas, or by what standards to evaluate whether significant impairment of natural values is likely to result from a project.

## CEQ GUIDANCE ON ISSUES OF DEGREE OF SIGNIFICANCE AND CUMULATIVE IMPACTS.

## § 1508.27: “Significantly” as used in NEPA requires considerations of both context (society as a whole, the affected region, affected interests, and the locality) and intensity (the severity of impact).  In evaluating intensity, the agency should consider: (3) the unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas; and (7) whether the action is related to other actions with individually insignificant but cumulatively significant impacts. § 1508.7: “Cumulative impact” is the impact on the environment which results from the incremental impact of the action when added to the other past, present, and reasonably foreseeable future actions regardless of what agency or person undertakes such other actions.

## POST-DECISION KNOWN REQUIREMENTS FOR ST. GEORGE ENVIRONMENTAL IMPACT STATEMENT (EIS) (AND OTHER SIMILAR FUTURE STUDIES OF IMPACTS OF AIRCRAFT OVERFLIGHTS OVER SENSITIVE NATURAL AREAS).

##         >  FAA must evaluate existing noise environment at Zion from all sources of noise, including IFR and VFR overflights from other airports, along with non-aircraft sources of noise.  In its May 24, 2002 Grand Canyon Trust decision (290 F.3d 399), the D.C Circuit stated: >  [The agency] must consider the ‘incremental impact’ of a project for possible cumulative effects, by incorporating the effects of other projects into the background ‘data base’ of the project at issue...Even a slight increase in adverse conditions that form an existing environmental milieu may sometimes threaten harm that is significant.  One more [project] may represent the straw that breaks the back of the environmental camel. >  Although the replacement airport may contribute only a 2% increase in the amount of overflights near or over the park, there is no way to determine from the FAA’s analysis in the EA whether...a 2% increase, in addition to the other noise impacts on the park, will “significantly affect” the quality of the human environmental in the park.

## >  Thus, the FAA evaluation must address whether any incremental increases of aircraft noise, over and above the ambient noise at Zion, that result from the project (when compared with the no project alternative), are “significant” or constitute a “constructive use” of the parkland. >  FAA evaluation must consider acoustical data collected by NPS to date. 

## > See also U.S. Air Tours Assn v FAA et. al., 298 F. 3d 997 (D.C. Cir, August 16, 2002), where the same court addressed the adequacy of the FAA’s EIS supporting its rule limiting the number of air tours permitted to fly over the Grand Canyon National Park.  The court again addressed the issue of cumulative impacts, and agreed with the Grand Canyon Trust’s arguments that, in projecting the amount of noise experienced by different parts of the Park, the FAA's noise model only considers noise emitted from air tour flights. By failing to account for noise from other aircraft that fly over the Grand Canyon--for example, from commercial jets, general aviation, and military flights--the model arbitrarily overstates how quiet the Park really is.  If non-tour aircraft noise were included in the calculation, the percentage of the Park in which natural quiet would be substantially restored under the FAA’s rule would be significantly less than the FAA projected. 

## POST-DECISION UNCERTAINTIES FOR ST. GEORGE EIS(AND OTHER FUTURE SIMILAR STUDIES OF IMPACTS OF AIRCRAFT OVERFLIGHTS OVER SENSITIVE NATURAL AREAS).

## > How far removed from the airport project to look in terms of other potentially-impacted natural areas? (How far from airport can we say that potential project-related impacts are either not measurable, indistinguishable from ambient, or de minimus). > How far ahead in time must study look in terms of potential future impacts from project? (Issue of reasonable foreseeability). > How to assess the potential noise impacts from VFR aircraft transiting the newly-studied natural areas, given the scarcity of information about these flights from Airport Traffic Control sources. > What types of non-aircraft sources of noise to include in ambient noise environment? > How to measure total ambient noise (methodologies and metrics)? > What standards or thresholds of significance to use for NEPA determination of significance and 4f determination of constructive use? > How to accomplish 4f-required mitigation if project induced constructive use is found?

## SPECIFIC ST. GEORGE EIS ACTIVITIES TO ADDRESS COURT REQUIREMENTS 

## FORECASTS OF AVIATION ACTIVITY:  Development of present and future aviation activity data (aircraft types, operations, and route of flight, in sufficient detail for noise modeling) for:  1.  the existing airport,2.  the proposed replacement airport,3.  flights over Zion NP, departing from any airport, 4.  flights over other National Park units (to be defined)     arriving/departing from the existing and proposed     St. George airports.This data will be used to address the cumulative noise impact analysis at Zion NP and possibly other National Park units. 

## NOISE:  Special analytical capabilities will be required to analyze acoustical data collected for the NPS from 1995 to 2002 by several consultants to the NPS.  These study data will be reviewed and evaluated to determine existing ambient levels at Zion NP and the possible design of a framework for analyzing or mapping the park’s acoustic environment.  These data include, but are not limited to, acoustic data, meteorological data, recorded audio (.wav) files, digital audio tapes, and observer logs.  Other tools anticipated for use include geographic information system (GIS) applications for geographically referenced data. 

## The CUMULATIVE NOISE IMPACT ANALYSIS will consist of modeling on-the-ground noise impacts at Zion NP (and possibly other NP units) from: 1.  aircraft arriving and departing to/from the existing airport which fly over Zion NP,2.  aircraft arriving and departing to/from the proposed replacement airport which fly over Zion NP, and3.  any other flights over Zion NP, arriving/departing from any other airport  Such analysis will delineate the classes of over flight (high altitude commercial, air tour, general aviation, military) and the contribution of each to the total cumulative noise using several standard and supplemental noise metrics. 

## Within the Cumulative Impact chapter, the consideration of reasonably foreseeable impacts from a future (beyond 20 years) planned parallel runway and associated facilities. 

## ALL OF THE ABOVE ISSUES EXTEND BEYOND AIRPORT DEVELOPMENT PROJECTS FUNDED BY THE FAA AIRPORTS’ DIVISION, TO OTHER LINES OF BUSINESS

## > FAA Air Traffic environmental studies associated with terminal and en route airspace redesign.  > Flight Standards environmental studies associated with the development of Air Tour Management Plans.  > Airways Facilities environmental studies associated with the construction of navigational aids that have the potential to change the type or level of air traffic at a particular airport.