800 Independence Ave., S.W. Washington, DC 20591

Oct 05 2010

James B. Blackburn, Jr., Esq.

Coastal Habitat Alliance

4709 Austin Street Houston, TX 77004

Dear Mr. Blackburn:

This letter is in res ponse to Coastal Habita t Alliance’s (CHA) Petit ion for Rulemaking & Collateral Relief Regarding the Impact of Wind Turbines in Texas, which was submitted on December 3, 2008. First, CHA seeks to amend FAA Order 1050.1E so that Part 77 determinations (i.e., FAA determinations under 14 C.F.R. part 77, “ Objects Affecting Navigable Airspace ”) are not considered advisory actions fo r purposes of complying with the National Environmental Policy Act (NEPA). Specifically, th e petition asks that pa ragraph 301a be deleted from FAA Order 1050.1E and that a categorical excl usion for Part 77 determinations be added to the order. In addition, CHA requests that the FAA make certain findings, conduct studies, and stop authorizations of wind turbines until a progr ammatic environmental impact statement (EIS) has been completed on the impacts of wind turb ines along the coast of Texas. Second, CHA argues that FAA actions have or will be taken so as to require compliance with the Endangered Species Act (ESA). Finally, CHA requests that the FAA take action to comply with Executive Order 13186, “ Responsibilities of Federal Agenci es to Protect Migratory Birds .”

At the outset, we note that under 14 C.F.R. § 11.61, petitions for FAA rulemaking are limited to changes to Title 14 of the Code of Federal Re gulations. CHA’s petition, however, requests changes to an FAA Order, 1050.1E. Because FAA Order 1050.1E is not incorporated by reference into 14 C.F.R., this petition is not au thorized under 14 C.F.R. §11.61. Nonetheless, the FAA will voluntarily address in th is letter the substantive issues raised by CHA in its petition.

This letter responds to both the petition for rulemaking and the co llateral relief requested. Aside from the fact that the rulemaking petition is not authorized under 14 C.F.R. § 11.61, we find, for the reasons discussed below, that the petition does not ra ise issues of law or fact to support an agency decision to conduc t the suggested rulemaking.2 In support of its petition for rulemaking and requ est for collateral relief, CHA argues that:

1. 14 C.F.R. Part 77 determinations must be evaluated under NEPA.

2. Part 77 determinations requi re consultation under the ESA.

3. The FAA has failed to comply with Executive Order 13186.

1. Part 77 Determinations and Compliance with NEPA

Under NEPA, an environmental revi ew is prepared only when there is a “major federal action.” 42 U.S.C. § 4332(C). NEPA regulat ions define “major federal act ions” as including “actions with effects that may be major and which ar e potentially subject to federal control and responsibility.” 40 C.F.R. § 1508.18. Federal agen cies must have a decisionmaking role, and not merely an advisory role, in order for NEPA to apply. Marbled Murrelet v. Babbitt , 83 F.3d 1068, 1075 (9 th Cir. 1996) (holding that advisory activ ity did not constitute discretionary involvement or control over the lumber companie s proposed tree harvest); Ka Makani ‘O Kohala Ohana Inc v. Water Supply, 295 F.3d 955 (9 th Cir. 2002) (holding that NEPA did not apply to USGS’s advisory role and non-d ecisionmaking role in the planni ng of a water project). In essence, NEPA applies to a federal agency when the federal activity enable s a project to proceed.

Sierra Club v. Hodel , 848 F.2d 1068 (10 th Cir. 1988) (holding that NEPA applies only to federal actions that have the ability to influence or co ntrol the outcome in material respects, where the influence is more than the power to give non-binding advice to th e non-federal actor.).

As required by regulations of the Council on En vironmental Quality (CEQ), see 40 C.F.R. § 1507.3, the FAA adopted its policies and proce dures to implement NEPA through notice and comment in the Federal Register. FAA Order 1050.1E, Environmental Impacts: Policies and

Procedures , which was developed in c onsultation with CEQ, specifi cally addresses advisory

actions. It states:

Some Federal actions are of an advisory nature . Actions of this t ype are not considered major Federal actions under NEPA, and categor ical exclusions, EA’s or EIS’s are not required as a condition for taking the action . . . . Examples of advisory actions include: . . Determinations under 14 CFR part 77, Ob jects Affecting Navigable Airspace.

Order 1050.1E, para. 301. The FAA’s interpretati on that Part 77 determinations are advisory, neither permissive nor enabling in nature, and th erefore not a federal actio n subject to NEPA is well-settled. See FAA Environmental Impacts, Policies and Procedures, Proposed FAA Order 1050.1E, para. 301, 64 Fed. Reg. 55526, 55541 (October 13, 1999); Final Order 1050.1E, para. 301, 69 Fed. Reg. 33778, 33779 (June 16, 2004). More over, as an interpretation of general applicability that has been the subject of public notice and commen t, it is entitled to judicial

deference. See Natural Res. Def. Council, Inc. v. FAA, 564 F.3d 549, 564 (2d Cir. 2009)

.

In the petition, CHA states that “FAA must inves tigate and approve the building of any structure that might interfere with aviation” 1 and that FAA has a “system of authorizing, licensing,

1 Petition, page 4.3 approving and registering wind turbines.” 2 These statements misconstrue FAA’s authority under 14 C.F.R. part 77. The FAA’s authority to promote the safe and efficient use of the navigable airspace concerning existing and proposed structures is predominantly derived from Title 49 U.S.C. Section 44718 (Section 44718). Sec tion 44718 gave the FAA the power to issue implementing regulations. The FAA did so at 14 C.F.R. part 77.

Under Section 44718, FAA’s authority is limited to: (1) requiring persons w ho construct or alter structures that may interfere with the safety or efficiency of navigable airspace to provide notice to the FAA; and (2) conducting an aeronautical study to determine the extent of the impacts of

such structures on the safe and efficient use of the airspace and on air navigation facilities and equipment. Courts have recognized that the purpose of an FAA hazard/no hazarddetermination

under Part 77 is “ voluntary compliance with the federal regu latory scheme by proponents of potentially hazardous structures.” Flowers Mill Associates v. U.S. , 23 Cl.Ct. 182, 187 (1991) (emphasis added), citing Air Line Pilo ts Ass’n Int’l v. Dept. of Transp. , 446 F.2d 236 (5 th Cir. 1971) and Aircraft Owners and Pilots Ass’n v. FAA, 600 F.2d 965 (D.C. Cir. 1979) . Thus, for example, a hazard determination under Part 77 cannot result in a Fifth Amendment taking.

Flower Mill Associates , 23 Cl.Ct. at 188-89 (noting that “F AA’s hazard finding [under Part 77] was advisory only and not legally enforceabl e” and thus “cannot be the basis of a Fifth Amendment taking because of the voluntary nature of the regulatory scheme”).

FAA is not authorized to enforce a hazard findi ng against a private landowner or regulate or

control use of land for structures that penetrate navigable airspace. “A possible reason for this federal reticence [to fully preempt rights of control in the navigable airspace] is that a full federal preemption would most likely subject the federa l government to the inverse condemnation suits currently brought against local ai rport owners...[and] lead to ex cessive Federal involvement in matters more properly reserved to local auth orities.” Kupster Realty Corp. v. New York , 404 N.Y.S.2d 225, 231 (N.Y.Ct.Cl. 1978), quot ed in Flowers Mills Associates , 23 Cl.Ct. at 187. In fact, structures that FAA has determined to pose adverse imp acts on navigable airspace have

been built. The decision on whet her or not to build a structure is outside of F AA’s control. Therefore, an evaluation of the environmenta l impacts of proposed wind turbines planned, funded, licensed and authorized under othe r authorities is out side our purview.

Part 77 requires notice to the FAA of certain proposed construction or alteration, establishes technical standards for determining obstructions to air navigation, and provides for aeronautical

studies of obstructions to determine their effects on the safe and efficient use of airspace. The

factors that FAA must util ize in an aeronautical study are specif ied in subpart C. None of these

factors is environmental. All aeronautical studies include an evaluation to determine whether obstruction marking and/or light ing should be on the proposed structures. FAA Advisory Circular (AC) 70/7460-1K, Obstruction Marking and Lighting provides standards, procedures and types of equipment specified for marking a nd lighting obstructions to provide the minimum acceptable level of conspicuity to warn pi lots of the presence of structures. 3

2 Petition, page 10.

3 Although the FAA’s determinations under Part 77 are advisory, the agency does cons ider effects on migratory birds in making recommendations for lighting. Pursuant to an agreement with the American Bird Conservancy, the FAA has adopted a policy under which medium intensity white strobe lights for nighttime conspicuity are4

The FAA Obstruction Evaluation /Airport Ai rspace Analysis (OE/ AAA) program makes a determination regarding the obstruction. The OE /AAA determination is issued as either a

“Determination of Hazard” or “Determination of No Hazard,” based on the height of the obstruction and whether the obstruction may have an adverse effect upon the safe and efficient use of the navigable airspace by aircraft and upon air navigation facilities. Such a determination is not binding on a party and is not permissive or enabling in nature.

FAA Order 1050.1E fully comports with the re quirements of NEPA and its implementing regulations. Thus, no EIS, Envir onmental Assessment or Categoric al Exclusions should be done for any determination under 14 CFR part 77, and none can be considered at this time. Making such an advisory action subject to NEPA, even under a categorical exclusion, would be inconsistent with NEPA and its implementing re gulations and require un necessary and costly paperwork. Finally, it would l ead to a document that would not inform any decisionmaker, as FAA has no ability to consider environmental impacts and no further role after a hazard

determination is made.

If wind turbines are erected such that a redesign of airspace or change in flight procedures is necessary to assure safe and efficient use of th e navigable airspace, the modification of airspace would require a request from the airport or othe r facility manager. Such an evaluation of potential revised procedures or redesign of navigable airspace would involve agency action subject to an environmental revi ew to ensure compliance with NE PA. That, however, is not the

situation here.

CHA’s petition suggests that FAA’ s Part 77 determinations are similar to the FCC’s decisions regulating communication towers and, therefore, should be subject to similar NEPA compliance requirements, citing American Bird Conservancy, Inc. v. FCC , 516 F.3d 1027 (D.C. Cir 2008). However, the FAA’s authorities and procedures are clearly distinguishable from those of the FCC. The FCC was established by Congress to regulate communications by wire and radio across the United States. It does so through a series of licensing, permitting, and standards enforcement regulations that have shaped th e ever-growing communications industry. For example, the FCC requires compliance with regist ration and notification regulations before new

antennae structures can be built . 47 C.F.R. §17.4. The failure to provide required documentation can result in denial or delay of necessary FCC approvals.

In contrast, the FAA’s authority to impose mandatory provisions re garding antennae structures is limited to requiring a notification prior to construction of potentia l obstructions. Once that notice is received, FAA prepares advisory hazard determ inations on the proposed structures. As noted above, FAA also provides guidance on the marking and lighting of obs tructions to navigation.

considered the preferred system over red obstruction lighting systems to the maximum extent possible without compromising safety.5

2. Compliance with the Endangered Species Act

CHA suggests that FAA Order 1050.1E seeks to ab solve the FAA of responsibility to comply with the Endangered Species Act (ESA). In f act, similar to NEPA, the ESA only applies to discretionary enabling action taken by a federal agen cy. Pursuant to Section 7(a)(2) of the ESA, each federal agency “shall, in c onsultation with and with the assi stance of the Secretary, insure that any action authorized, funded or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered or th reatened species.” (Emphasis added.) Under Part 77, there is no action that is authorized, funded or carri ed out by the FAA. As noted above, the FAA’s authority under Part 77 is limited to requiring public notice and evaluating the impacts on aviation. Thus, the FAA’s determinations under that part do not trigger ESA requirements.

The ESA regulations clarify this furt her and specify that an action is:

all activities or programs of a ny kind authorized, funded, or ca rried out, in whole or in part, by Federal agencies in the United States or upon the high seas. Examples include, but are not limited to: (a) actions intended to cons erve listed species or their habitat; (b) the promulgation of regulations; (c) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or gran ts-in-aid; or (d) actions di rectly or indirectly causing modifications to the land, water, or air.

50 C.F.R. § 402.02. Here, no action, according to th e definition set forth in the regulations, has occurred as to a hazard determination regarding wind turbines in Texas. As such, there is no FAA action upon which to base an ESA claim.

3. Compliance with Executive Order 13186

Executive Order 13186 (EO) requires federal agencies whose actions have, or are likely to have, a measurable negative effect on migratory bi rd populations to develop and implement a Memorandum of Understanding (MOU) with the U. S. Fish and Wildlife Service (FWS) that shall promote the conservation of migratory bird s. The FAA and the FWS began working on an MOU in 2001, and are in the process of finalizing the document. In the spirit of the EO, the FAA has worked to identify aviation-related solu tions to protect migrator y birds in the airport environs. For example, the FAA has offered its technical assistance to the U.S. Department of Agriculture, Wildlife Services at the National W ildlife Research Center to develop science-based recommendations, policies and procedures to manage and reduce bird hazards near airports.6 With regard to your petition to amend F AA Order 1050.1E, and pursuant to the authority contained in 49 U.S.C. §§ 40113 and 44701 delegated to me by the Administrator (14 C.F.R. § 11.73), your petition for rulemaking is hereby denied.

Accordingly, Docket No. FAA-2008-1297 is being closed.

Sincerely,

/s/ Elizabeth Ray Director, Airspace a nd Aeronautical Information Management