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 response to Coastal Habitat Alliance’s (CHA) Petition 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 for purposes of complying with the National 

Environmental Policy Act (NEPA). Specifically, the petition asks that paragraph 301a be deleted 

from FAA Order 1050.1E and that a categorical exclusion 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 programmatic environmental impact statement (EIS) 

has been completed on the impacts of wind turbines 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 Agencies 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 Regulations. 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 authorized under 14 C.F.R. §11.61. Nonetheless, the 

FAA will voluntarily address in this letter the substantive issues raised by CHA in its petition. 

This letter responds to both the petition for rulemaking and the collateral 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 raise issues of law or fact to support an 

agency decision to conduct the suggested rulemaking. 
2

In support of its petition for rulemaking and request for collateral relief, CHA argues that: 

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

2. Part 77 determinations require 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 review is prepared only when there is a “major federal action.” 

42 U.S.C. § 4332(C). NEPA regulations define “major federal actions” as including “actions 

with effects that may be major and which are potentially subject to federal control and 

responsibility.” 40 C.F.R. § 1508.18. Federal agencies 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 (9th Cir. 1996) (holding that advisory activity did not constitute discretionary 

involvement or control over the lumber companies proposed tree harvest); Ka Makani ‘O Kohala 

Ohana Inc v. Water Supply, 295 F.3d 955 (9th Cir. 2002) (holding that NEPA did not apply to 

USGS’s advisory role and non-decisionmaking role in the planning of a water project). In 

essence, NEPA applies to a federal agency when the federal activity enables a project to proceed. 

Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988) (holding that NEPA applies only to federal 

actions that have the ability to influence or control the outcome in material respects, where the 

influence is more than the power to give non-binding advice to the non-federal actor.). 

As required by regulations of the Council on Environmental Quality (CEQ), see 40 C.F.R. 

§ 1507.3, the FAA adopted its policies and procedures to implement NEPA through notice and 

comment in the Federal Register. FAA Order 1050.1E, Environmental Impacts: Policies and 

Procedures, which was developed in consultation with CEQ, specifically addresses advisory 

actions. It states: 

Some Federal actions are of an advisory nature. Actions of this type are not considered 

major Federal actions under NEPA, and categorical 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, Objects Affecting Navigable Airspace. 

Order 1050.1E, para. 301. The FAA’s interpretation that Part 77 determinations are advisory, 

neither permissive nor enabling in nature, and therefore not a federal action 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). Moreover, as an interpretation of general 

applicability that has been the subject of public notice and comment, 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 investigate 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). Section 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 who 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 regulatory scheme by proponents of 

potentially hazardous structures.” Flowers Mill Associates v. U.S., 23 Cl.Ct. 182, 187 (1991) 

(emphasis added), citing Air Line Pilots Ass’n Int’l v. Dept. of Transp., 446 F.2d 236 (5th 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 “FAA’s hazard finding [under Part 77] 

was advisory only and not legally enforceable” 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 finding 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 federal government to the inverse condemnation suits 

currently brought against local airport owners...[and] lead to excessive Federal involvement in 

matters more properly reserved to local authorities.” Kupster Realty Corp. v. New York, 404 

N.Y.S.2d 225, 231 (N.Y.Ct.Cl. 1978), quoted in Flowers Mills Associates, 23 Cl.Ct. at 187. In 

fact, structures that FAA has determined to pose adverse impacts on navigable airspace have 

been built. The decision on whether or not to build a structure is outside of FAA’s control. 

Therefore, an evaluation of the environmental impacts of proposed wind turbines planned, 

funded, licensed and authorized under other authorities is outside 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 utilize in an aeronautical study are specified in subpart C. None of these 

factors is environmental. All aeronautical studies include an evaluation to determine whether 

obstruction marking and/or lighting 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 and lighting obstructions to provide the minimum 

acceptable level of conspicuity to warn pilots of the presence of structures. 3

 

2

 Petition, page 10. 

3

 Although the FAA’s determinations under Part 77 are advisory, the agency does consider 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 are 
4

The FAA Obstruction Evaluation /Airport Airspace 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 requirements of NEPA and its implementing 

regulations. Thus, no EIS, Environmental Assessment or Categorical 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 regulations and require unnecessary and costly 

paperwork. Finally, it would lead 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 the navigable airspace, the modification of airspace 

would require a request from the airport or other facility manager. Such an evaluation of 

potential revised procedures or redesign of navigable airspace would involve agency action 

subject to an environmental review to ensure compliance with NEPA. 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 the ever-growing communications industry. For 

example, the FCC requires compliance with registration 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 regarding antennae structures is 

limited to requiring a notification prior to construction of potential obstructions. Once that notice 

is received, FAA prepares advisory hazard determinations on the proposed structures. As noted 

above, FAA also provides guidance on the marking and lighting of obstructions 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 absolve the FAA of responsibility to comply 

with the Endangered Species Act (ESA). In fact, similar to NEPA, the ESA only applies to 

discretionary enabling action taken by a federal agency. Pursuant to Section 7(a)(2) of the ESA, 

each federal agency “shall, in consultation with and with the assistance 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 threatened species.” (Emphasis added.) Under 

Part 77, there is no action that is authorized, funded or carried 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 further and specify that an action is: 

all activities or programs of any kind authorized, funded, or carried 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 conserve listed species or their habitat; (b) the 

promulgation of regulations; (c) the granting of licenses, contracts, leases, easements, 

rights-of-way, permits, or grants-in-aid; or (d) actions directly or indirectly causing 

modifications to the land, water, or air. 

50 C.F.R. § 402.02. Here, no action, according to the 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 bird 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 birds. 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 solutions to protect migratory 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 Wildlife 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 FAA 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 and Aeronautical 

Information Management