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13 purpose law, from whom approval of some sort (e.g., a permit) is required if the proposed devel- opment project will impact the specially-protected environmental resource. In some cases, the act of granting a permit under the special-purpose law might itself be considered federal action subject to NEPA (or state action subject to a state mini- NEPA law), requiring that agency to perform its own NEPA (or NEPA-like) review. To avoid paral- lel environmental reviews and duplication of ef- fort by other government agencies, in December 2003, Congress enacted the Vision 100âCentury of Aviation Reauthorization Act, which calls for âan expedited and coordinated environmental re- view process for airport capacity enhancement projects at congested airports, aviation safety pro- jects, and aviation security projects.â91 The legis- lation âprovides that all environmental reviews, analyses, opinions, permits, licenses, and approv- als that must be issued or made by a Federal agency or airport sponsor for such a project will be conducted concurrently, to the maximum extent practicable.â92 The legislation also encourages state environmental agencies (other than airport sponsors) to be subject to this streamlined envi- ronmental review process.93 The FAA is the lead agency in the streamlined environmental review process, and all participating agencies âshall give substantial deferenceâ to the FAAâs decisions and directives.94 The FAA also encourages intra- agency coordination of the environmental review process for other airport development projects that are not subject to streamlined environmental review (i.e., development projects that do not in- volve âcongested airports, aviation safety projects, and aviation security projectsâ).95 In summary, NEPA and mini-NEPA laws pre- scribe a process by which government agencies like the FAA are required to document a proposed development projectâs purpose and need, envi- ronmental impacts, reasonable alternatives, and possible mitigation measures. The level of detail of this documentation depends upon the signifi- cance of the impact that the project is anticipated to have. Where a specially protected environ- mental resource will be significantly impacted, special-purpose laws will influence the considera- 91 49 U.S.C. Â§ 47171 (2012); see also FAA Order 1050.1E, App. D, Â§ 6.c (2004). 92 49 U.S.C. Â§ 47171(a)(2) (2012). 93 49 U.S.C. Â§ 47171(e) (2012). 94 FAA Order 1050.1E, App. D, Â§ 6.g (2004). 95 FAA Order 5050.4B, Â§ 1100.b (2006); FAA Order 1050.1E, Â§ 213 (2004). tion of alternatives and mitigation measures. Sec- tion II examines the role and responsibility of the airport sponsor and the FAA in preparing these components of an environmental review. II. AIRPORT SPONSORSâ SUBSTANTIVE ROLE IN ENVIRONMENTAL REVIEW Preparing the content of a NEPA (or NEPA- like) document (e.g., the purpose and need, dis- cussion of environmental impact, analysis of al- ternatives, and mitigation measures) typically involves specialized technical knowledge. There- fore, airport sponsors (and their legal counsel) often rely on engineering consultants to ensure that the technical content is adequately prepared. However, airport sponsors (and their legal coun- sel) should have a working understanding of these requirements: â¢ What technical content is legally required at different stages in the environmental review proc- ess. â¢ Who is required to prepare the content at each stage. â¢ Whether the technical content of the NEPA document adequately supports the official deci- sion (e.g., FONSI and/or ROD) that is recom- mended by the airport sponsor or ultimately made by the FAA. This Section addresses these legal require- ments, as opposed to the technical requirements, of the NEPA document content. A. Purpose and Need As discussed in Section I, under NEPA, both the EA and the EIS are to state the purpose and need of the proposed development project, and the statement of purpose and need is key to the iden- tification of alternatives. This section examines the role of the airport sponsor in formulating the purpose and need at different stages in the envi- ronmental review process. i. Purpose and Need at the Planning Stage Formulating the purpose and need of a pro- posed development project begins long before the environmental review process. Airport sponsors are responsible for identifying the airportâs needs
14 and proposing solutions.96 Airport sponsors are expected to âknow well in advance when they must take an action to meet an airport need.â97 During the master planning stage, airport spon- sors are expected to critically analyze how well a proposed development project will serve its pur- pose98 (i.e., whether there is a rational fit between the project and the airportâs need). The proposed development project will gener- ally first appear as an update to the airportâs ALP.99 An airport sponsorâs change to its ALP re- quires FAA approval.100 Even if the FAA is not yet committing federal funds to the development pro- ject, the FAAâs approval of an ALP is potentially a federal action subject to NEPA.101 Therefore, the airport sponsor should consider formulating the purpose and need of the proposed development at the time the sponsor requests approval of an ALP, well before the environmental review process for- mally begins.102 âConditionalâ approval of an ALP (meaning that formal environmental review is incomplete) normally qualifies as a Categorical Exclusion from NEPA.103 To determine whether to condi- tionally approve certain features shown on an ALP, the FAA must first determine that âthe fea- tures are not yet needed.â104 To make this deter- mination, the FAA must first know what the air- portâs needs are, which would be facilitated by a preliminary statement of purpose and need from the airport sponsor. A formal NEPA statement of purpose and need will be required later to obtain âunconditionalâ approval and FAA funding for the project. 96 FAA Order 5050.4B, Â§ 201.a (2006) (â[A]irport spon- sors are responsible for deciding when and where airport development is needed and for building and operating air- port facilities.â). 97 FAA Order 5050.4B, Â§ 603.a (2006). 98 FAA Order 5050.4B, Â§ 501.b (2006). 99 FAA Order 5050.4B, Â§ 202.a (2006) (âAn ALP identi- fies all existing and future runways, runway extensions, terminal buildings and other airfield facilities, and the descriptions of the development needed to support them. The ALP is for planning purposes only.â). 100 FAA Airport Sponsor Grant Assurance 29 (2012). 101 FAA Order 5050.4B, Â§ 202.b (2006). 102 See City of Dania Beach v. FAA, 628 F.3d 581, 585, 588 (D.C. Cir. 2010) (upholding the FAAâs approval of an ALP based on an evaluation of the projectâs purpose and need). 103 FAA Order 1050.1E, Â§ 307p (2004). 104 FAA Order 5050.4B, Â§ 202.c(1)(b) (2006). ii. Purpose and Need in the Environmental Assessment As will be discussed further herein, it is typi- cally the airport sponsorâs responsibility to pre- pare an EA when a proposed development project cannot be categorically excluded. Thus, the state- ment of purpose and need in the EA is the airport sponsorâs statement.105 The airport sponsor, how- ever, may ask the FAA for assistance in develop- ing the purpose and need.106 In defining the pur- pose and need, the airport sponsor is directed to consider not just its own goals and objectives, but also âthe statutory objectives of the proposed Fed- eral actionsâ107 (i.e., the FAAâs statutory mission). Before 1996, the airport sponsorâs needs and the FAAâs statutory objectives were closely aligned, as the FAAâs primary statutory mission was the promotion of âair commerce.â Since 1996, however, the FAAâs primary statutory mission has been the âpromotion of safety.â108 Therefore, the airport sponsor should consider any safety pur- pose served by the proposed development project, and consider incorporating that safety purpose into its statement. (This can have the added ad- vantage of casting the project as an âaviation safetyâ project suitable for streamlined environ- mental review.) However, the airport sponsor cannot mask its true âneedâ for the project by casting the project âpurposeâ entirely in terms of the FAAâs statutory mission of promoting safety.109 When an airport sponsor submits an EA to the FAA, it is the FAAâs responsibility to âensure the purpose and need is rational and supported by 105 See, e.g., FAA Order 5050.4B, App. 1, Chart 2 (2006) (âSponsor identifies problem (i.e., need) and proposes a solution (i.e., purpose) that is an action normally requiring an Environmental Assessment (EA)â). 106 FAA Order 5050.4B, Â§ 707.a(2) (2006). 107 FAA Order 5050.4B, Â§ 705.b(1) (2006). 108 J. David Grizzle et al., Navigating the Turbulence of Competing Interests: Principles and Practice of the Federal Aviation Administration, 75 J. AIR L. & COMM. 777, 779 (2010) (citing Federal Aviation Reauthorization Act of 1996, Pub. L. No. 104â264, Â§ 401, 110 Stat. 3213 (1996)). 109 California v. U.S. Depât of Transp., 260 F. Supp. 2d 969, 974 (N.D. Cal. 2003) (âIf the only purpose of airport expansion was to improve the safety and convenience of existing air service, the FEA might be sufficient to comply with NEPAâ¦[T]he FEA states, however, that the need for an improved airport is to stimulate regional growth.â (em- phasis added)).
15 Figure 4. Tendency of Survey Respondents to Consult with FAA to Develop Purpose and Need. current, available data.â110 The FAA may ask the airport sponsor to supply âany supporting data, inventories, assessments, analyses, or studiesâ that will help justify the airport sponsorâs purpose and need, or that will help make it understand- able to the general public.111 The airport sponsorâs âneedâ will often involve demand for use of the airport (particularly the future demand forecast at the airport) and the airportâs lack of existing capacity to satisfy future demand. In formulating its purpose and need, the airport sponsor should consult with the FAA to ensure that the airport sponsorâs forecasts are reasonably consistent with the FAAâs terminal area forecast. The FAA is to ensure that the airport sponsor and FAA âresolve the differences between those forecasts before completing the Purpose and Need.â112 Responses to the survey conducted for this di- gest suggest that there is no standard approach 110 FAA Order 5050.4B, Â§ 706.b (2006). 111 FAA Order 1050.1E, Â§ 405c (2004). 112 FAA Order 5050.4B, Â§ 706.b(3)(c) (2006); see also Barnes v. U.S. Depât of Transp., 655 F.3d 1124, 1129 n.7, 1143 (9th Cir. 2011) (overturning the FAAâs approval of an EA, where the airport sponsorâs 5-year forecast differed significantly from the FAAâs 5-year forecast). taken by airport sponsors regarding FAA consul- tation in formulating the purpose and need. As shown in Figure 4, of the 44 survey respondents who have prepared EAs from 2004 to the present, half of them (22) âneverâ or âoccasionallyâ consult with the FAA, and half of them (22) âusuallyâ or âalwaysâ consult with the FAA, to develop the purpose and need. There are few disadvantages to consulting with the FAA, as it is unlikely that the FAA will recommend a wholesale change to the airport sponsorâs proposed development project at the EA stage. As shown in Figure 5, very few EA survey respondents (6 of 44, or 14 percent) report that the FAA âusuallyâ recommends a change to the airport sponsorâs purpose and need in an EA. Survey respondents repeatedly indicated that any changes recommended by the FAA were only for âclarificationâ of the statement, and did not change the project proposed by the airport sponsor.
16 Figure 5. Tendency of FAA to Suggest Changes in Airport Sponsor's Purpose and Need. In at least one case identified in the survey, the FAA recommended that the airport sponsor refo- cus the statement of purpose and need on the FAAâs statutory mission of promoting safety: The [purpose and need (P&N)] for one airport project was to install an [instrument landing system (ILS)], with an initial need for improved access to the airport in peri-ods of inclement weather. Based on [FAA] review comments, the P&N was redefined to focus on the safety aspects of an ILS, especially for the ability to allow medical flights during periods when they would not be able to occur due to weather. The shift in emphasis of the P&N did not change the proposed project. In another case identified in the survey, the FAA provided guidance to help the airport spon- sor revise its purpose and need to better âexplain the projectâs relationship with previously funded projects.â Such guidance would help the airport sponsor preemptively address concerns about the cumulative impact of the proposed development project. In short, consulting with the FAA to de- velop the purpose and need can help the airport sponsor strengthen its EA against potential chal- lenges from the public or non-FAA government agencies. iii. Purpose and Need in the Environmental Impact Statement As will be discussed further herein, it is the FAAâs responsibility to prepare an EIS; thus, the statement of purpose and need in the EIS is the FAAâs statement, not that of the airport sponsor. The purpose and need in the EIS is to distinguish âbetween the need for the proposed action and the desires or preferences ofâ both the airport sponsor and the FAA.113 The airport sponsor plays a lim- ited supporting role in formulating the purpose and need in the EIS. Primarily, the airport spon- sor is to provide background data requested by the FAA to support the FAAâs assessment of pur- pose and need.114 If the airport sponsor previously prepared an EA, the FAA may directly adopt the purpose and need from the airport sponsorâs EA, only if the FAA âdetermines the EA fully explains why FAA is considering the proposed action.â115 The airport âsponsorâs goals play a large role in determining how the purpose and need is stated. â¦At the same time, the goals that Congress has set for the [FAA] must also figure into the formulation of the 113 FAA Order 1050.1E, Â§ 506d (2004). 114 See, e.g., FAA Order 5050.4B, Â§ 904.b(2) (2006) (rec- ommending that the airport sponsor include âgood plan- ning dataâ with a proposal for development, âbecause they allow FAA toâ¦[d]efine a purpose and need.â); FAA Order 1050.1E, Â§ 503 (2004) (showing that the FAA alone âdeter- mines need for EIS,â after the FAA or airport sponsor âcol- lects background data and analyzes information.â). 115 FAA Order 5050.4B, Â§ 1007.d(2) (2006).
17 statement.â116 Accordingly, the purpose and need in the FAAâs EIS may deviate from the purpose and need in the airport sponsorâs EA to better re- flect the FAAâs statutory objectives.117 The pur- pose and need in the FAAâs EIS will typically fo- cus on how the proposed development promotes safety.118 Generally, the airport sponsor need not be con- cerned that the FAA will radically alter the pro- posed development project based on the FAAâs revised statement of purpose and need. Even where the FAA does not directly adopt the airport sponsorâs purpose and need, the airport sponsorâs purpose and need is still relevant to any action approved by the FAA.119 All survey respondents with EIS experience reported that the FAAâs EIS directly adopted the airport sponsorâs purpose and need from the EA without making any changes. Historically, a bigger concern for airport spon- sors has been that other state or federal agencies, with different statutory objectives than the FAA, conducting a parallel environmental review under a special-purpose or mini-NEPA law, might rec- ommend a different project than that proposed by the airport sponsor, because the non-FAA agency may define the projectâs purpose and need differ- ently.120 Even if the non-FAA agency recom- mended the same project as proposed by the air- port sponsor and the FAA, a different statement of purpose and need by the non-FAA agency could make the project recommendation the subject of a 116 Alliance for Legal Action v. FAA, 69 F. Appâx 617, 622 (4th Cir. 2003) (citing Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1991)). 117 Florida Clean Water Network, Inc. v. Grosskruger, 587 F. Supp. 2d 1236, 1244 (M.D. Fla. 2008) (âIn its Record of Decision, the FAA noted that its own evaluation of the project purpose coincided with the [airport sponsor]âs âex- cept in the area of economic goals and forecast aviation demand.ââ). 118 See Town of Stratford, Conn. v. FAA, 285 F.3d 84, 86 (D.C. Cir. 2002) (â[T]he FAA prepared an EIS evaluating possible safety measures at the airport. The EISâ State- ment of Purpose and Need outlined its general objective of increasing safety.â). 119 Natural Res. Def. Council v. FAA, 564 F.3d 549, 568 (2d Cir. 2009) (upholding an EIS where the FAA deter- mined that only the airport sponsorâs proposed project âmeets both the FAAâs and the Airport Sponsorâs purposes and needsâ). 120 This has been a prevalent occurrence where the U.S. Army Corps of Engineers performs a parallel environ- mental review of a proposed airport development project under the Clean Water Act. See infra notes 121â22, 124â 25. legal challenge.121 Since non-FAA agencies do not share the FAAâs statutory mission, such an agencyâs decision to directly adopt the airport sponsorâs or FAAâs statement of purpose and need could also historically be subject to legal chal- lenge.122 The streamlined environmental review process for any âairport capacity expansion project at a congested airport,â or for any project designated by the FAA as âan aviation safety project or avia- tion security project,â123 helps resolve these legal challenges. For any such project, the FAA is re- quired âto request and consider comments on pro- ject purpose and need from interested people and governmental entities according to the NEPA process.â124 However, the final statement of pur- pose and need in the EIS is the FAAâs alone, and all other participating government agencies, as well as the airport sponsor, âare bound by the pro- ject purpose and needâ defined by the FAA.125 In the survey conducted for this digest, only one sur- vey respondent with EIS experience reported that the FAA revised its purpose and need in the EIS to address comments from other government agencies. 121 See Fla. Clean Water Network, Inc. v. Grosskruger, 587 F. Supp. 2d 1236, 1241 (M.D. Fla. 2008) In evaluating the project, the Corps, like the FAA, considered FAA safety and design standards and included the [airport sponsor]âs request for a runway that could support international flights. The Corps [unlike the FAA] also included the need for the project to be compatible with local and regional planning ef- forts. 122 See Alliance for Legal Action v. U.S. Army Corps of Engârs, 314 F. Supp. 2d 534, 550 (M.D.N.C. 2004) (The Corps noted that âgiven our own lack of expertise in the area of airport expansion, the FAA is the appropriate agency to determine the applicantâs purpose and need for the project. Our analysis of the FAA-FEIS indicates that FAA has done an adequate job of analyzing the purpose and need for the project.â). 123 49 U.S.C. Â§ 47171 (2012). 124 FAA Order 5050.4B, Â§ 1505.i(2) (2006); see also Natâl Mitigation Banking Assân v. U.S. Army Corps of Engârs, No. 06-CV-2820, 2007 U.S. Dist. LEXIS 10528, at *11 (N.D. Ill. Feb. 14, 2007) (âWhen and as requested by FAA, the Corps will attend and participate in O'Hare Modernization EIS meetings, particularly as related to project purpose and need.â). 125 FAA Order 5050.4B, Â§ 1505.i(1) (2006); see also Natâl Mitigation Banking Assân v. U.S. Army Corps of Engârs, No. 06-CV-2820, 2007 U.S. Dist. LEXIS 10528, at *28 (N.D. Ill. Feb. 14, 2007) (âThe Corps stated that it was a cooper- ating agency in the review of the DEIS, and that it âagreed to adopt and incorporate the [FEIS] into our decision mak- ing process with respect to key issues such asâ¦purpose and need.ââ).
18 B. Environmental Impacts As discussed in Section I, under NEPA, both the EA and the EIS are to discuss the environ- mental impacts of the proposed development pro- ject. This section examines the role of the airport sponsor in analyzing and documenting environ- mental impacts of proposed development projects at different stages in the environmental review process. i. Impact Analysis at the Pre-NEPA Planning Stage Although detailed EISâs are not typically per- formed at the planning stage, airport sponsors are directed to âcritically analyzeâ¦the environmental issuesâ related to a proposed development project âduring early project planning.â126 The airport sponsorâs environmental impact analysis at the planning stage is largely limited to 1) identifying potential environmental impacts that will have to be considered as the project moves forward (such as affected environmental resources protected by special-purpose environmental laws), and 2) developing good planning data (e.g., demand forecasts) that will be used in later detailed envi- ronmental impact studies. When a proposed development project is first identified, the airport sponsor is encouraged to contact both the FAA and the airportâs own envi- ronmental consultants âearly in master planning efforts.â127 The purpose of this early contact is âto identify potential major environmental impactsâ before the NEPA environmental review process officially begins.128 This is both to identify the en- vironmental impact analyses that may be re- quired under NEPA, and also to avoid delays in funding approval because an affected environ- mental resource is identified late in the NEPA process. The FAA and the airport sponsorâs envi- ronmental consultants should help identify both environmental concerns that are typically associ- ated with airport development projects of that type,129 as well as specific environmental re- sources near the airport that may implicate spe- cial-purpose environmental laws.130 The airport sponsor is also to consider how the potential envi- ronmental impacts identified during the planning stage âcould potentially affect airport opera- tions.â131 126 FAA Order 5050.4B, Â§ 501.b (2006). 127 FAA Order 5050.4B, Â§ 201.b(1) (2006). 128 FAA Order 5050.4B, Â§ 501.b(2) (2006). 129 FAA Order 5050.4B, Â§ 501.b(1) (2006). 130 FAA Order 5050.4B, Â§ 201.b(1)(a) (2006). 131 FAA Order 5050.4B, Â§ 911.a(1) (2006). In addition to identifying potential environ- mental impacts, the airport sponsor is expected to gather data during the planning stage that will be used in environmental impact analyses later in the NEPA process. The airport sponsor and/or the FAA will later rely upon accurate planning data to efficiently â[p]rovide analyses of potential envi- ronmental impacts the proposed project and its reasonable alternatives could cause.â132 Planning data that the airport sponsor should gather in anticipation of NEPA include accurate aircraft operations forecasts, the airportâs existing capac- ity, facility requirements to accommodate the forecasts, and an up-to-date ALP showing all pro- posed development.133 Later, during the NEPA process, the âFAA will consider whether the [air- port] sponsor provided sufficient planning data or information to meaningfully evaluateâ¦potential environmental effects.â134 The FAA strongly em- phasizes the relationship between a successful NEPA process and good planning data supplied by the airport sponsor: During the past decade, [FAA] has found that a lack of well-conceived and well-developed airport planning in- formation or failure to resolve planning issues have caused substantial delays in the NEPA process. Many times these delays were not NEPA-related, but were due to a lack of good planning data. This lack of data severely hampered FAAâs ability to meaningfully evaluate project impacts and prepare the EIS.135 Often, noise will be the environmental impact of greatest concern anticipated from a proposed development project. Therefore, impact data gath- ered at the planning stage should include any ex- isting NEMs depicting the existing airport layout. A NEM illustrates the anticipated noise impacts based on forecast airport operations at the airport for a forecast period at least 5 years in the future, calculated using the FAAâs standardized noise impact analysis methodology.136 A NEM also illus- trates the compatibility of surrounding land uses with the anticipated noise impact of the airport as it exists,137 so the NEM can be an important plan- ning tool for identifying nearby land uses or spe- cially protected environmental resources that could be sensitive to additional development and 132 FAA Order 5050.4B, Â§ 502.c (2006); see also FAA Or- der 5050.4B, Â§Â§ 503.b, 904.b(2)(c) (2006). 133 FAA Order 5050.4B, Â§ 503.a (2006). 134 FAA Order 5050.4B, Â§ 904.b(1) (2006). 135 FAA Order 5050.4B, Â§ 904.b(1) (2006). 136 14 C.F.R. Â§ 150.21(a)(1) (2012). 137 14 C.F.R. Â§ 150.21(a)(2) (2012).
19 increased noise exposure.138 A NEM depicting a proposed new development might not be prepared at the development planning stage (since a simi- lar analysis will be required later in an EA or EIS),139 but any existing NEMs illustrating poten- tial adverse noise impacts from existing airport development to noise-sensitive land uses sur- rounding the airport should be incorporated into the development planning process.140 If the airport sponsor has concerns about the noise impacts of the existing airport layout, a NEM may be pre- pared at the planning stage as a precursor to a Noise Compatibility Program to mitigate the noise from existing development,141 regardless of whether any new development is ultimately pro- posed. One purpose of a Noise Compatibility Pro- gram is to allow an airport sponsor to further as- sess the noise impact of an airportâs existing layout and operations,142 and that impact analysis should influence future development planning. ii. Impact Analysis for the Categorical Exclusion If a proposed development project is not a ma- jor federal action, or will not have a significant environmental impact, then the project is cate- gorically excluded from environmental impact analysis under NEPA. As a general rule, a Cate- gorical Exclusion is appropriate where a proposed development project âdoes not create environ- mental impacts outside the airport property.â143 Airport sponsors may wonder how they can de- termine that there will not be significant envi- ronmental impacts without first performing a NEPA environmental impact analysis. The sug- gested process follows. First, the airport sponsor should review lists of typical Categorical Exclusions provided by the FAA, to determine whether the proposed devel- opment project would ordinarily qualify for a Categorical Exclusion.144 The fact that a certain type of development project appears on a list of Categorical Exclusions does not automatically exempt the project from NEPA; there may be ex- traordinary circumstances associated with any 138 FAA Order 5050.4B, Â§ 503.c (2006). 139 FAA Order 1050.1E, App. A, Â§ 14 (2004). 140 FAA Order 5050.4B, Â§ 503.c (2006). 141 14 C.F.R. Â§ 150.23 (2012). 142 14 C.F.R. Â§ B150.1(b)(1) (2012). 143 West v. FAA, 320 F. Appâx 782, 783 (9th Cir. 2009) (upholding the FAAâs categorical exclusion of a project for the ârepair, strengthening, and resurfacing of an existing runwayâ). 144 FAA Order 5050.4B, Chart 1 (2006). proposed development project that would require the airport sponsor to undergo NEPA review. As a general rule, administrative, regulatory, and certification actions that do not involve air- port development or expansion of airport opera- tions are categorically excluded and are unlikely to involve extraordinary circumstances.145 Typical Categorical Exclusions under this category in- clude obtaining conditional approval of an ALP, accepting federal grants to perform airport plan- ning or to prepare NEPA documents, and accept- ing federal grants to prepare NEMs and Noise Compatibility Programs. Also as a general rule, airport sponsors should assume that airport development activities that involve some construction, but do not expand the airportâs capacity, might involve extraordinary circumstances even if they would otherwise be categorically excluded.146 Typical Categorical Ex- clusions under this category include repair of or improvement to existing runways; construction of new taxiways, aprons, and roads; installation of equipment such as airfield lighting; and imple- mentation of Noise Compatibility Programs (in- cluding any associated revisions to an ALP to re- flect the noise mitigation measures). After reviewing the FAAâs lists of typical Cate- gorical Exclusions, the airport sponsor is to review lists of extraordinary circumstances compiled by the FAA.147 Airport development activities typi- cally involve extraordinary circumstances if they affect an environmental resource protected by special-purpose environmental laws apart from NEPA. If the proposed development would create a noise impact in a noise-sensitive area (e.g., as indicated on a NEM), it involves extraordinary circumstances.148 Also, extraordinary circum- stances are involved if the cumulative impact of the proposed development project (in conjunction with past and future development at the airport) would likely be significant.149 Finally, extraordi- 145 The FAA publishes lists of typical administrative, regulatory, and certification actions that are categorically excluded. FAA Order 5050.4B, App. 1, Table 6-1 (2006); FAA Order 1050.1E, Â§Â§ 307â308 (2004). 146 The FAA publishes lists of typical airport develop- ment activities that are categorically excluded, but may involve extraordinary circumstances. FAA Order 5050.4B, Table 6-2 (2006); FAA Order 1050.1E, Â§Â§ 309â310 (2004). 147 FAA Order 5050.4B, Â§ 603.b (2006); see also FAA Or- der 5050.4B, Chart 1 (2006). The FAA publishes lists of typical extraordinary circumstances. FAA Order 5050.4B, Table 6-3 (2006); FAA Order 1050.1E, Â§ 304 (2004). 148 FAA Order 1050.1E, Â§ 304f (2004). 149 FAA Order 1050.1E, Â§ 304k (2004).
20 nary circumstances are involved if the proposed development is âlikely to be highly controversial on environmental grounds,â such as when there is âreasonable disagreementâ over whether the pro- posed development project will have significant environmental impacts.150 Therefore, to determine whether there are extraordinary circumstances, the airport sponsor must at least perform a pre- liminary assessment of the environmental im- pacts of the development that the airport sponsor seeks to categorically exclude from NEPA review. The mere presence of extraordinary circum- stances does not necessarily mean that NEPA re- view is required.151 The FAA (not the airport spon- sor) is ultimately responsible for determining whether extraordinary circumstances exist, and whether a proposed development project can be categorically excluded.152 After reviewing the FAAâs lists of typical Categorical Exclusions and the FAAâs lists of extraordinary circumstances, the airport sponsor should contact the FAA to con- firm whether a Categorical Exclusion is appropri- ate for the project, given the anticipated environ- mental impacts. The FAA will determine whether the action can be categorically excluded despite extraordinary circumstances, or whether the air- port sponsor will need to prepare an EA.153 In some cases, the FAA may categorically ex- clude a proposed development project even though extraordinary circumstances do exist, such as the applicability of special-purpose environmental laws. In those cases, even though the activity is excluded from NEPA review, the airport sponsor and the FAA still must prepare any documenta- tion that may be required to comply with the spe- cial-purpose laws.154 Generally, the airport spon- sor is responsible for performing any analytical studies required by the special-purpose laws (e.g., to show that the environmental impact of the pro- posed activity will be below the exemption thresh- 150 FAA Order 1050.1E, Â§ 304i (2004). 151 FAA Order 1050.1E, Â§ 304 (2004) (âThe presence of one or more of [extraordinary] circumstance(s) in connec- tion with a proposed action is not necessarily a reason to prepare an EA or EIS.â). 152 FAA Order 5050.4B, Â§Â§ 506, 605 (2006). 153 See Giuliano v. State, No. X01UWYCV014002704S, 2007 Conn. Super. LEXIS 3467, at *4 (Dec. 20, 2007) (FAA declining to categorically exclude a departure change due to extraordinary circumstances (i.e., the change would oc- cur âin a noise sensitive areaâ), and informing the airport sponsor that an EA was required). 154 FAA Order 5050.4B, Chart 1 (2006) (âSponsor and/or FAA prepare required documentation to comply with spe- cial purpose laws that apply to the proposed action.â) olds for the special-purpose laws), and for provid- ing the FAA with documentation of the studies.155 Ultimately, however, it is not the airport sponsorâs obligation, but rather the obligation of the FAA, to determine that the project conforms to federal special-purpose laws.156 The airport sponsor must be consistent in its interpretations of the FAA criteria for Categorical Exclusions, and whether Categorical Exclusions apply to development proposals made by airport tenants. Airport sponsors are required to avoid discriminatory treatment of their tenants, so as not to give one tenant an economic advantage over the other.157 In 2008, an airport maintenance business at the Modesto City-County Airport com- plained of economic discrimination when the air- port sponsor first told the tenant that installation of fuel storage tanks would be categorically ex- cluded from NEPA and CEQA, then later in- formed the tenant that environmental review would be required.158 The FAA found that the air- port sponsor was not acting in a discriminatory manner. However, the FAA cautioned the airport sponsor to establish minimum standards that address various aeronautical activities that businesses may wish to engage in on the Airport, including any environmental reviews that would potentially be requiredâ¦. Once the airport sponsor has established minimum standards, it should apply them ob- jectively and uniformly to all similarly situated on-airport aeronautical activities and services. Therefore, the air- port sponsor should consider the FAAâs lists of typical Categorical Exclusions and extraordinary circumstances, then document any additional circumstances in which the airport sponsor might require its tenants to undergo envi- ronmental review for typically excluded activities. If the FAA grants a Categorical Exclusion for a proposed development, then NEPA does not ap- ply. Thus, the airport sponsor is not required to 155 FAA Order 5050.4B, Â§ 603b (2006); see also City of Tempe v. FAA, 239 F. Supp. 2d 55, 60 n.5 (D.D.C. 2003) (FAA reviewing emissions study prepared by a consultant for the airport sponsor, to determine that a runway expan- sion project would have a de minimis impact on air quality and thus fall below the conformity threshold for the Clean Air Act). 156 FAA Order 1050.1E, Â§ 306 (2004); see also City of Tempe v. FAA, 239 F. Supp. 2d 55, 62 (D.D.C. 2003) (â[I]t is not the airport [sponsor] which has an obligation under federal law to perform a conformity determination; rather, it is the federal agency (the FAA).â). 157 FAA Airport Sponsor Grant Assurance 22 (2012). 158 Corbett v. City of Modesto, FAA Docket No. 16-08-10 (Apr. 5, 2010).
21 further consider alternatives to the proposed de- velopment or ways to mitigate the environmental impact of the proposed development. The analysis begins and ends with the determination that the environmental impact is so insignificant that the activity is categorically excluded from NEPA. iii. Impact Analysis in the Environmental Assessment If a proposed development project cannot be categorically excluded, the next step typically is preparation of an EA, to determine whether the project will have a significant environmental im- pact.159 The EA is to contain âconcise analysesâ of the potential environmental impacts of 1) the pro- posed development project, 2) reasonable alterna- tives to the project, and 3) no action.160 Prepara- tion of the EA is typically the responsibility of the airport sponsor (or an environmental consultant hired by the airport sponsor). The FAA prescribes methods for analyzing en- vironmental impacts and specifies numeric thresholds for determining whether the antici- pated environmental impacts will be âsignificantâ for most potential impact categories.161 Impact categories that will usually be analyzed in the EA include noise, light emissions or visual impacts, air quality, and water quality or impact on water resources (e.g., due to construction runoff). Other impact categories apply when extraordinary cir- cumstances (e.g., historical sites or wetlands) im- plicate special-purpose environmental laws. Often, noise will be the environmental impact of greatest concern anticipated from a proposed development project. The FAA-approved analysis methodology for assessing noise impacts in an EA (or EIS) is similar to the methodology used in preparation of NEMs and Noise Compatibility Programs.162 NEMs depicting the existing airport layout can be incorporated into an EA (or EIS), although existing NEMs are not likely to be suffi- cient to depict the noise impact of the proposed 159 Berger, supra note 21, at 287. 160 FAA Order 5050.4B, Â§ 706.f (2006). 161 The FAA has documented the typical impact catego- ries, prescribed analytical methods, and âsignificantâ im- pact thresholds. FAA Order 1050.1E, App. A (2004). 162 Compare FAA Order 1050.1E, App. A, Â§ 14.3 (2006), with 14 C.F.R. Â§ 150.21(b) (2012); see also Heide v. Molnau, FAA Docket Nos. 16-04-11, 16-05-05, 16-05-15 (Jul. 7, 2006) (explaining that the FAA uses the day/night noise level (DNL) metric to assess noise impacts under both NEPA and 14 C.F.R. pt. 150). development.163 Specifically, existing NEMs (as long as they are based on current forecast data) may accurately represent the noise impact of the âno actionâ alternative, for comparison with the noise impact of the proposed development. (Like- wise, the noise impact analysis prepared for an EA or EIS may be used after the project has been constructed, like a NEM, in support of a Noise Compatibility Program.164) For some impact categories, the environmental impact analysis performed by the airport sponsor for an EA may be substantially the same as what would be required in an EIS,165 particularly where the environmental impact in a given category is not likely to be significant, or where the environ- mental impact is relatively easy to quantify with- out special studies. For other impact categories, the EA may anticipate further special studies. For example, if the EA indicates that the environ- mental impact in a certain category is likely to be significant, so that an EIS will need to be pre- pared by the FAA, the airport sponsor may elect not to perform the special studies at the EA stage and defer them to the EIS. Likewise, where the proposed development project is expected to re- duce adverse environmental impacts (e.g., a Noise Compatibility Program), the airport sponsor may issue an EA prior to performing time-consuming special studies in that impact category.166 In the general case, however, where the airport sponsor hopes to obtain a FONSI (and thus avoid prepara- tion of an EIS), but the project is likely to have adverse environmental impacts, the EA should not be issued before all analytical studies are complete. The analyses generally need to be avail- able to the FAA to consider when deciding 163 FAA Advisory Circular 150/5020-1, Â§ 26 (1983); see also FAA Order 1050.1E, App. A, Â§ 14.7 (2006). 164 FAA Advisory Circular 150/5020-1, Â§ 23 (1983). 165 See, e.g., FAA Order 1050.1E, App. A, Â§ 12.3a (2004) (âThe EIS description of potential annoyance from airport lighting and measures to minimize the effects should be documented in a similar fashion in an EIS to that in an EA. â¦It is possible that the responsible FAA official will judge that a special lighting study is warrantedâ for the EIS.). 166 See, e.g., Giuliano v. State, No. X01UWYCV014002704S, 2007 Conn. Super. LEXIS 3467, at *5 (Dec. 20, 2007) Although the FAA advised the state to consider conducting the [Noise Compatibility Program], rather than a smaller study of just runway 24 departures, [the airport sponsor] opted for the smaller scale study of runway 24. [The airport sponsor] did so because the [Noise Compatibility Program] would have taken several years to complete and he did not feel that it was appro- priate for those affected by the change implemented.
22 whether to issue a FONSI, and may need to be made available to the public (as discussed in Sec- tion III.D.i herein) so that the public can ade- quately review and comment upon the EA.167 Whereas the discussion of alternatives is the âheartâ of the EIS, the discussion of environ- mental impacts of the airport sponsorâs proposed development project is âthe critical partâ of the EA.168 This is because the main purpose of the EA is to allow the FAA to determine whether it can issue a FONSIâeffectively approving the project without subjecting it to further environmental review. If the airport sponsorâs EA suggests that environmental impacts in any impact category are likely to exceed the FAAâs âsignificanceâ thresh- olds, or that environmental impacts cannot be sat- isfactorily mitigated down to insignificant levels, a FONSI cannot be issued and the FAA will need to prepare an EIS.169 However, even if the airport sponsor determines that significant environ- mental impacts are not likely, the FAA is required to âcarefully reviewâ the EA170 and take a âhard lookâ at the airport sponsorâs analysis. A FONSI may be issued if the airport sponsorâs analysis in the EA properly assesses that all environmental impacts of the project (as approved) will be below the FAAâs âsignificanceâ thresholds, as courts will defer to the FAAâs interpretation of what consti- tutes a âsignificantâ environmental impact. How- ever, the FAAâs FONSI will be subject to legal challenge if the EA indicates that the airport sponsor did not satisfy all NEPA procedural re- quirements, because âCongress did not entrust administration of NEPA to the FAA alone.â171 In particular, the FAAâs FONSI is subject to legal challenge if the EA suggests that the airport spon- 167 California v. U.S. Depât of Transp., 260 F. Supp. 2d 969, 973 n.5 (N.D. Cal. 2003) (âEven if it is proper to con- sider all subsequent documents as part of the FEA, the environmental analysis is still lacking because aspects of the environmental impactsâ¦were not appropriately evalu- ated in any document. Moreover, as far as I can tell, analy- ses subsequent to the FEA were not subject to public com- ment.â). 168 Berger, supra note 21, at 301. 169 FAA Order 1050.1E, App. A, Â§ 1.6 (2004). 170 See, e.g., Safeguarding the Historic Hanson Areaâs Ir- replaceable Res., Inc. v. FAA, 651 F.3d 202, 217 (1st Cir. 2011) (upholding the FAAâs FONSI where the EA relied heavily on an older environmental status and planning report prepared by the airport sponsor, but the FAA âcare- fully reviewedâ the reportâs analysis of environmental im- pacts). 171 Grand Canyon Trust v. FAA, 290 F.3d 339, 342 (D.C. Cir. 2002). sor inadequately analyzed the cumulative impact of the proposed development project along with all past and reasonably anticipated future develop- ment at the airport.172 The EA or FONSI should document whether the proposed development project will affect envi- ronmental resources protected by special-purpose laws.173 However, because these special-purpose laws exist apart from NEPA, there may be addi- tional permitting and public notice requirements under special-purpose laws that must be satisfied prior to proceeding with the project, even if the EA suggests there will be no significant environ- mental impact in the category governed by a given special-purpose law. Generally, the FAA will confer with the agency responsible for admin- istering the special-purpose law, or the agency with jurisdiction over the protected environ- mental resource, to confirm whether the airport sponsorâs analysis in the EA suggests there will be a significant impact in that impact category (i.e., whether an EIS must be prepared). In those cases, the non-FAA agency with special-purpose juris- diction generally must consent to the proposed development project (indicating that the agency is satisfied that any significant impacts to specially protected resources will be mitigated to acceptable levels) before the FAA can issue a FONSI.174 The terminology for describing environmental impacts under some special-purpose laws may be different than under NEPA (e.g., âcompatibility,â175 âcon- formity,â176 or âconsistencyâ177 determination rather than âsignificant impactâ). In some cases, the different terminology may imply that there is a different numeric threshold for invoking a spe- cial-purpose law than the FAAâs âsignificant im- pactâ threshold under NEPA.178 Although the FAA 172 See supra note 28 and accompanying text; see also Grand Canyon Trust v. FAA, 290 F.3d 339, 345 (D.C. Cir. 2002). 173 FAA Order 1050.1E, Â§ 406b(4) (2004). 174 See, e.g., FAA Order 1050.1E, App. A, Â§ 3.4a (2004) 175 See, e.g., FAA Order 1050.1E, App. A, Â§ 4.3 (2004). 176 See, e.g., FAA Order 1050.1E, App. A, Â§ 2.1h (2004). 177 See, e.g., FAA Order 1050.1E, App. A, Â§ 3.4a (2004). 178 For example, what constitutes an âadverse effectâ to a historical resource under special-purpose laws may not rise to the level of a âsignificant impactâ under NEPA, and thus a FONSI might still be issued despite such an âad- verse effect.â FAA Order 1050.1E, App. A, Â§ 11.3 (2004). But âsubstantial impairmentâ of a historical resource un- der special-purpose laws generally is comparable to a âsig- nificant impactâ under NEPA and does require an EIS. Likewise, a âsignificant impactâ to an endangered species under special-purpose laws is one that would tend to make
23 will be primarily responsible for consulting with the outside agency, the airport sponsor should be prepared to provide additional analysis or data in these impact categories, above and beyond what may be required by the FAA for NEPA purposes, in order to obtain the necessary permit or consent from the outside agency. iv. Impact Analysis in the Environmental Impact Statement An EIS must be prepared if the airport spon- sorâs EA suggests that the proposed development project would have significant environmental im- pacts that cannot be satisfactorily mitigated, or if the FAA does not issue a FONSI for any reason, and the airport sponsor still wishes to proceed with the project. Where it is clear that there will be significant impacts, or that the project is highly controversial on environmental grounds, the FAA may even bypass the EA and proceed directly to preparation of the EIS.179 (The airport sponsor may also be required to prepare an EIS or equiva- lent EIR under a state mini-NEPA law. However, where the FAA is preparing an EIS, this require- ment is typically satisfied by the airport sponsorâs adoption of the FAAâs EIS, and the airport spon- sor becomes merely a participant in the FAAâs coordinated environmental review process.180) Because the EIS is prepared by the FAA (or a contractor working under the direction of the FAA), not the airport sponsor, the airport spon- sorâs role is much reduced in comparison to the airport sponsorâs role in preparing the EA. How- ever, although the FAA controls the content of the EIS, the airport sponsor still plays an important role, because the airport sponsor is uniquely situ- ated to provide the FAA with the data required to support the FAAâs environmental impact analy- sis.181 The FAAâs discussion of environmental im- the species extinct, but lesser impacts (than extinction) can be considered âsignificant impactsâ for NEPA purposes and trigger preparation of an EIS. FAA Order 1050.1E, App. A, Â§ 8.3 (2004). 179 See, e.g., St. Johnâs United Church of Christ v. City of Chicago, 502 F.3d 616, 620 (7th Cir. 2007) (FAA decided to prepare an EIS shortly after the airport sponsor an- nounced its plan to increase airport capacity). 180 See, e.g., Communities Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 687 (D.C. Cir. 2004) (âAs a coop- erating state agency in a joint federal-state environmental review, [the airport sponsor] had a significant official role to play in jointly overseeing the preparation of the EIS.â). 181 Id. (The airport sponsor is âin a unique position to provide valuable information about the project; its exclu- pacts in the EIS may rely heavily on the airport sponsorâs previous discussion of environmental impacts in an EA, especially for impact categories or environmental resources that are not expected to be significantly impacted.182 The FAA will tell the airport sponsor what additional environ- mental studies the airport sponsor needs to per- form and what additional environmental data the FAA needs from the airport sponsor for the FAA to complete the EIS.183 The airport sponsor is often best situated to de- scribe all past development at the airport, includ- ing efforts made by the airport over time to be compatible with existing land uses around the airport (such as Noise Compatibility Programs).184 This is key information for the cumulative impact analysis that is required in the EIS. Failure to adequately consider the cumulative impact of the proposed project in conjunction with all past and reasonably foreseeable future development is one of the most likely reasons that an EIS may be overturned on a legal challenge.185 While the FAAâs EIS is being prepared, the air- port sponsor may continue to perform such pre- liminary work (including special-purpose envi- ronmental impact analyses) as may be required to obtain the necessary permits or financial assis- tance from other federal, state, or local agen- cies.186 However, the allowable preliminary work generally will not include any significant con- struction activity. If the FAA learns that the air- port sponsor âis about to take an actionâ¦that would have an adverse environmental impactâ¦, the responsible FAA official shall promptly notify the applicant that the FAA will take appropriate action to insure that the objectives and procedures of NEPA are achieved.â187 In other words, the air- port sponsor has an obligation to not create any adverse environmental impacts until the proposed development has been finally approved by the FAA and recorded in an ROD. sion from the environmental review process would have been counterproductive, to say the least.â). 182 FAA Order 5050.4B, Â§ 1007.g(4) (2006). 183 FAA Order 5050.4B, Â§ 904.a (2006). 184 FAA Order 5050.4B, Â§ 911.b(1) (2006). 185 See supra note 28 and accompanying text. 186 FAA Order 1050.1E, Â§ 522b (2006). 187 FAA Order 1050.1E, Â§ 522b (2006).
24 C. Alternatives i. Alternatives Analysis at the Pre-NEPA Planning Stage The airport sponsorâs analysis of alternatives to its proposed development begins during project planning, well before the NEPA process. The FAA advises, âduring early project planning, it is criti- cal that the airport sponsor critically analyzeâ fea- sible alternatives to its proposed development pro- ject (âreasonable ways to achieve the goalâ) as well as âthe environmental issues surrounding the al- ternatives considered to achieve that goal.â188 It is rare that any significant development project will completely satisfy the airport sponsorâs purpose and need without having adverse environmental impacts; therefore, realistic alternatives often consist of combinations of proposed development projects and mitigation strategies.189 â[T]he range of reasonable alternatives during an airport sponsorâs master planning process is different than the range of alternatives needed for the NEPA process.â190 During project planning, âthe widest range of layout or design options ex- ists,â so the airport sponsor can consider a wider range of alternatives that might have less envi- ronmental impact. For example, in Barnes v. DOT,191 the airport sponsor considered two alter- natives (âincreasing radar coverage and building additional exit taxiways to the primary runwayâ) during master planning before concluding that its preferred approach for increasing capacity was adding a new runway. Later, during the NEPA process, the airport sponsor did not seriously con- sider any alternatives that did not include the new runway (except for the NEPA-required âno actionâ alternative).192 The other taxiway alterna- tives considered during master planning were no longer under consideration during the NEPA process because they failed to satisfy the airport sponsorâs purpose and need.193 During master planning, however, considering a wider range of alternatives (e.g., the taxiway alternatives) can help the airport sponsor formulate its justification 188 FAA Order 5050.4B, Â§ 501.b (2006). 189 FAA Advisory Circular 150/5020-1, Â§ 306 (1983). 190 FAA Order 5050.4B, Â§ 504.d (2006). 191 655 F.3d 1124, 1128 (9th Cir. 2011). 192 Id. at 1129 (âThe alternatives differed only as to the new location of the Charlie helipad, which needed to be moved in order to make room for the new runway.â). 193 Id. (âThe [airport sponsor] eliminated five of these al- ternatives as not meeting the purpose and need of the pro- ject and focused on the three remaining alternatives.â). for its proposed development project because the sponsor is forced to articulate the reasons why it has rejected alternatives that would have less en- vironmental impact than the airport sponsorâs preferred approach. NEMs, depicting the noise impact of the exist- ing airport layout and noise-sensitive land uses surrounding the airport, can be a valuable tool for identifying the feasibility of alternatives. The NEM may indicate that there are existing noise concerns or incompatible land uses surrounding the airport, even in the absence of new develop- ment. If the additional impact of the proposed de- velopment project would not be tolerable without a plan to mitigate existing noise impacts, the air- port sponsor would prefer to identify that issue during the planning stage. The planning process may indicate to the airport sponsor the need to enter into a Noise Compatibility Program instead of, or in combination with, the proposed develop- ment. In planning a Noise Compatibility Program, the airport sponsor will consider a wide range of alternatives including noise controls and land use controls.194 One purpose of a Noise Compatibility Program is for an airport sponsor to further exam- ine the costs and benefits of various alternative approaches to noise reduction.195 During project planning, the airport sponsor is also directed to consider whether the proposed development project will implicate special- purpose laws or specially protected environmental resources.196 If so, then it is likely that there will be stricter criteria for alternatives considered later during the NEPA phase, and the airport sponsor may begin considering whether there are âpracticable, possible, or prudent alternativesâ that would entirely avoid impacting specially pro- tected environmental resources.197 Identifying such alternatives early in the planning stage could help the sponsor avoid preparing an EIS or EA later, especially if the airport sponsor decides that it can accept the more environmentally- friendly alternative. ii. Alternatives Analysis in the Environmental Assessment If the airport sponsorâs proposed development project cannot be categorically excluded, an EA must be prepared. Because the airport sponsor prepares the EA, the airport sponsor is primarily 194 FAA Advisory Circular 150/5020-1, Â§ 33. 195 14 C.F.R. Â§ B150.1(b)(1) (2012). 196 FAA Order 5050.4B, Â§ 201.b(1)(b) (2006). 197 Id.
25 responsible for the identification and analysis of alternatives that are required in the EA. The identification of alternatives is heavily influenced by the airport sponsorâs statement of purpose and need: The alternatives are to include âno action,â the airport sponsorâs proposed development pro- ject, and all reasonable alternative âways to achieve the stated purpose and need,â including alternatives âthat are within the sponsorâs or FAAâs purview, and those alternatives outside FAAâs jurisdiction.â198 However, it is unlikely that an airport sponsor will be required to abandon its proposed development project in favor of an alter- native outside the purview of the FAA or airport sponsor. For example, in response to the survey conducted for this digest, one airport sponsor in- dicated that the FAA encouraged it to consider alternatives outside the jurisdiction of both the airport sponsor (e.g., other public use airports) and the FAA (e.g., other modes of transportation) to satisfy the airportâs capacity problem. Ulti- mately, consideration of these alternatives did not change the airport sponsorâs proposed develop- ment project. When it begins preparing the EA, the airport sponsor is encouraged to contact the FAA to help identify the reasonable alternatives that will be discussed in the EA.199 Upon the airport sponsorâs request, the FAA will help the airport sponsor identify alternatives that will both achieve the airport sponsorâs purpose and need, and also sat- isfy the FAAâs airport design and planning stan- dards.200 This consultation with the FAA during EA preparation is important, because before the FAA can approve an EA (and issue a FONSI), the FAA must be âassured that the proposed action and the reasonable alternatives [in the EA] can achieve the purpose and need and meet applicable airport design and planning standards or qualify for waivers to those standards.â201 However, as shown in Figure 6, airport sponsors often do not involve the FAA in developing alternatives for the EA. In response to the survey conducted for this digest, a minority (19 of 44, or 43 percent) of air- port sponsors with EA experience reported that they âusuallyâ or âalwaysâ consult with the FAA to develop alternatives for the EA; most (25 of 44, or 57 percent) âoccasionallyâ or âneverâ do. Most sur- vey respondents who consulted with the FAA stated that additional alternatives recommended 198 FAA Order 5050.4B, Â§ 706.d(6) (2006). 199 FAA Order 5050.4B, Â§ 706.d(5)(c) (2006). 200 FAA Order 5050.4B, Â§ 707.a(3) (2006). 201 FAA Order 5050.4B, Â§ 706.b (2006). by the FAA did not ultimately change the airport sponsorâs proposed development project. Once the airport sponsor has identified all rea- sonable or feasible alternatives, NEPA generally requires the EA to discuss the environmental im- pacts of each. However, NEPA does not require the airport sponsor to select the lowest-impact alternative as its proposed development project. Special-purpose environmental laws, on the other hand, may have a stricter requirement to show that there is no practicable or prudent alternative to the airport sponsorâs proposed development. As a general rule, if the proposed development pro- ject will not impact environmental resources pro- tected by special-purpose laws, then the EA only needs to analyze that impact category for the pro- posed project (i.e., make a âcompatibility,â âcon- formity,â or âconsistencyâ determination for the proposed project under the special-purpose law), and not for all the alternatives.202 However, if the proposed development project will impact the spe- cially protected environmental resource, then the EA must analyze that impact category for all fea- sible alternatives, to demonstrate that there is no practicable or prudent alternative to the airport sponsorâs proposed development project.203 In response to the survey conducted for this di- gest, a significant number of airport sponsors with EA experience (12 of 44, or 27 percent) indicated that they were required to consider additional alternatives based on comments from other gov- ernment agencies with jurisdiction over specially- protected resources. The issue most frequently cited by survey respondents was that there were practicable alternatives to the airport sponsorâs proposed development that would avoid impacting wetlands, causing the airport sponsor to revise the preferred alternative in the EA. One survey respondent described the role played by other gov- ernment agencies in identifying the preferred al- ternative in one EA: â[R]ealignment of a taxiway from a completely parallel configuration to an- 202 FAA Order 1050.1E, App. A, Â§ 2.1i (2004) (Under the Clean Air Act, â[g]eneral conformity requirements are dis- tinct from NEPA requirements. For example, NEPA may require FAA to analyze several alternatives in detail. If a general conformity determination is required, only the proposed action must be addressed.â). 203 FAA Order 1050.1E, App. A, Â§ 18.2d (2004) (Under the Clean Water Act, â[i]f the action would affect wetlands and there is a practicable alternative that avoids the wet- land, this alternative becomes the environmentally pre- ferred alternativeâ¦The EA should state thatâ¦selection of the practicable alternative enabled the project proponent to avoid the wetlands.â).
26 Figure 6. Tendency of Survey Respondents to Consult with FAA to Develop Alternatives. other route was added to the alternatives and be- came the preferred alternative. This change was made to avoid wetlands, thereby addressing U.S. Army Corps of Engineers and state environmental agency concerns.â Another survey respondent re- called, âEPA [and a state environmental agency] requested geometric changes to design that avoided wetlands and we were ârequiredâ to agree with them.â It is more likely that an airport spon- sor will have to modify its preferred alternative because of the strict requirement on alternatives in special-purpose environmental laws than be- cause of any alternatives that the FAA might rec- ommend for NEPA compliance. In preparing the EA, the airport sponsor makes the initial determination as to whether an alter- native is feasible (for NEPA) or practicable (for special-purpose laws).204 Ultimately, however, it is up to the FAA to determine whether to approve the EA and adopt the airport sponsorâs preferred alternative.205 After reviewing the airport spon- sorâs EA, the FAA âmay select an alternative that differs from the sponsorâs proposed action, pro- 204 Lewanee County v. Wagley, Docket Nos. 268819, 268820, 268821, 268822, 268823, 2007 Mich. App. LEXIS 823, at *7 (Mar. 22, 2007) (âThe evaluation of feasibility and practicability is determined by the airport sponsor.â). 205 Id. (âThe [block grant state], acting on behalf of the FAA, in coordination with the airport sponsor, makes this determination.â). vided FAAâs preferred alternative meets the ac- tionâs purpose and need.â206 At that point, the air- port sponsor must decide whether to concur with the FAAâs preferred alternative (and begin im- plementing it, if the FAA issues a FONSI for its preferred alternative).207 Typically, there will not be major differences between the proposed devel- opment project in the airport sponsorâs EA and the preferred alternative in the FAAâs FONSI, so the airport sponsor will simply concur with the FAAâs preferred alternative. The airport sponsor has the option to reject the FAAâs preferred alter- native208 and simply take no action, but that would leave the airport sponsorâs purpose and need unaddressed.209 Typically, rather than reject the FAAâs preferred alternative outright (and run the risk of losing federal funds for an approved project), the airport sponsor might propose a new alternative not previously presented in its EA.210 Of course, a new alternative would require addi- tional environmental impact analysis and proba- bly a new, or revised, EA. To avoid such addi- tional expense, the airport sponsor should consult with the FAA at an early date to âtry to reach consensus on the alternative FAA will select as its 206 FAA Order 5050.4B, Â§ 801.a (2006). 207 FAA Order 5050.4B, Â§ 801.b(1) (2006). 208 FAA Order 5050.4B, Â§ 801.b(2) (2006). 209 FAA Order 5050.4B, Â§ 801.b(4) (2006). 210 FAA Order 5050.4B, Â§ 801.b(3) (2006).
27 preferred alternative.â211 In response to the survey conducted for this digest, all of the airport spon- sors with EA experience reported that the FAA never selected a different preferred alternative after reviewing the airport sponsorâs Final EA. iii. Alternatives Analysis in the Environmental Impact Statement The analysis of alternatives is the heart of the EIS.212 Because the EIS is prepared by the FAA, not the airport sponsor, the airport sponsorâs role in developing alternatives for projects that re- quire an EIS is greatly reduced from the airport sponsorâs role in developing alternatives for an EA.213 However, the FAAâs âconsideration of alter- natives may accord substantial weight to the preferences of the applicant and/or sponsor in the siting and design of the project.â214 Certainly, the alternatives considered by the FAA will include the airport sponsorâs proposed development project215 as well as âno action.â Also, if the airport sponsor prepared an EA, the FAA generally must consider all alternatives from the airport sponsorâs EA in the FAAâs EIS.216 (The FAA is to consult the airport sponsor before delet- ing from consideration any of the alternatives listed in the airport sponsorâs EA, and explain to the airport sponsor why the FAA does not believe the alternative is reasonable.)217 However, in ad- dition to alternatives proposed by the airport sponsor, the FAA must consider all reasonable alternatives that satisfy the FAAâs statement of purpose and need in the EIS, which will include alternatives outside of the jurisdiction of both the FAA and the airport sponsor.218 These may in- clude alternatives not considered by the airport sponsor, including all alternatives proposed by the public and non-FAA government agencies that âare reasonable solutions to the sponsorâs prob- lem(s)â (i.e., those that âmeet the purpose and needâ).219 As noted in Section II.A.iii, the FAAâs 211 FAA Order 5050.4B, Â§ 801.b (2006). 212 40 C.F.R. Â§ 1502.14 (2012). 213 See, e.g., FAA Order 5050.4B, Â§ 911.a(1) (2006) (The âFAA develops the range of reasonable alternatives the EIS will analyze in detail,â taking â[s]ponsor inputâ into account.). 214 Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 197â98 (D.C. Cir. 1991). 215 FAA Order 5050.4B, Â§ 906.b(1) (2006). 216 FAA Order 5050.4B, Â§ 1007.e(3) (2006). 217 FAA Order 5050.4B, Â§ 906.d(1) (2006). 218 FAA Order 5050.4B, Â§ 504.d(2) (2006). 219 FAA Order 5050.4B, Â§ 1007.e(2) (2006). purpose and need in the EIS is not necessarily identical to the airport sponsorâs purpose and need in the EA, so it is understandable that there would be different alternatives considered in the EIS and EA. The airport sponsor thus has little control over the proliferation of alternatives at the EIS stage. The best way to limit surprise alterna- tives at the EIS stage is to have consulted with the FAA during EA development, regarding both the airport sponsorâs purpose and need and also its list of reasonable alternatives. After developing a list of possible alternatives, the FAA typically employs a three-tiered analysis process to pare down the list to those alternatives that are feasible.220 This approach has proven to be effective at eliminating unreasonable alterna- tives from consideration and is practically im- mune from legal challenge.221 At the first tier, the FAA eliminates from con- sideration alternatives that do not satisfy the pur- pose and need in the EIS. (Once again, the pur- pose and need in the EIS will typically be similar to the purpose and need in the airport sponsorâs EA, with perhaps more focus on the FAAâs statu- tory mandate to promote air safety.) Often, alter- natives proposed by the public or non-FAA gov- ernment agencies in opposition to the airport sponsorâs proposed development project will be rejected at this first tier.222 At the second tier, the FAA considers the âcon- structabilityâ223 of the remaining alternativesâto identify those alternatives âthat are practical or feasible from the technical and economic stand- point and using common sense.â224 The second-tier review has been criticized by some as a âcost/benefit test,â whereby certain environmen- tally-friendly alternatives are rejected because they âdo not meet the projectâs cost/benefit pa- rameters.â225 However, at the second tier, the FAA considers such varied feasibility factors as âim- 220 Berger, supra note 21, at 315 (â[T]he FAAâs three- tiered approval process eschews a consideration of envi- ronmental concerns until the last stage of the process.â). 221 See supra note 61 and accompanying text. 222 See, e.g., Natural Res. Def. Council, Inc. v. FAA, 564 F.3d 549, 569 (2d Cir. 2008) (upholding the FAAâs rejection of alternatives that do not satisfy the âpurpose and needâ of both the FAA and the airport sponsor). 223 Alliance for Legal Action v. U.S. Army Corps of Engârs, 314 F. Supp. 2d 534, 538 (M.D.N.C. 2004). 224 Natâl Mitigation Banking Assân v. U.S. Army Corps of Engârs, No. 06-CV-2820, 2007 U.S. Dist. LEXIS 10528, at *88 (N.D. Ill. Feb. 14, 2007). 225 Berger, supra note 21, at 308, 315.
28 pacts to existing infrastructure, property acquisi- tion, relocation of residences and businesses, costs, and preliminary environmental impacts.â226 Also at the second tier, the FAA considers âenvi- ronmental and social factors, operational effi- ciency factors, economic factors, and national pol- icy factors.â227 The preliminary environmental impacts considered at the second tier may include conformity, compatibility, or consistency determi- nations required by special-purpose environ- mental laws, so that alternatives that would im- pact specially protected environmental resources are rejected at the second tier in favor of other âpracticableâ alternatives that do not implicate the special-purpose laws.228 Only alternatives that survive to the third-tier are subjected to detailed analysis of environ- mental impacts. At this third tier review, the FAA will rely on the airport sponsor to provide its planning data (e.g., forecasts), as well as some environmental data, such as any environmental analysis performed at the EA stage.229 The EIS will expand upon the airport sponsorâs EA analy- sis only for the alternatives that survive to the third tier. After completing the EIS, the FAA will typi- cally issue an ROD describing the FAAâs preferred alternative. If the FAA selects a preferred alter- native that is different than the airport sponsorâs proposed development project, the FAA is to no- tify the airport sponsor as soon as that decision is made, and discuss the decision with the airport sponsor, before the FAAâs preferred alternative appears in the ROD.230 The airport sponsor should not be surprised if the FAAâs preferred alternative in the EIS differs somewhat from the airport sponsorâs proposal. The FAA will have performed more detailed environmental impact analysis of alternatives in the EIS than the airport sponsor would have performed in an EA, and the FAA is also more likely to have received proposed alter- 226 Alliance for Legal Action v. U.S. Army Corps of Engârs, 314 F. Supp. 2d 534, 538 (M.D.N.C. 2004). 227 Natâl Mitigation Banking Assân v. U.S. Army Corps of Engârs, No. 06-CV-2820, 2007 U.S. Dist. LEXIS 10528, at *19 (N.D. Ill. Feb. 14, 2007). 228 Id. (âThe FAA stated that in applying its second tier of review, it was keeping the [Clean Water Act] âpracticable alternativesâ standard in mind.â) 229 FAA Order 5050.4B, Â§ 904.b(1) (2006) (âFAA will consider whether the sponsor provided sufficient planning data or information to meaningfully evaluate alterna- tives.â). 230 FAA Order 5050.4B, Â§Â§ 1202, 1301.c(3)(b) (2006). natives from the public and from other agencies during the EIS process, due to the high degree of public interest in most projects requiring an EIS. However, the FAAâs preferred alternative will typically be very similar to the airport sponsorâs proposed development project, with only modest modifications to address public comments or miti- gate environmental impacts identified in the EIS.231 In response to the survey conducted for this digest, of the airport sponsors with EIS ex- perience, only one reported that the FAA issued an EIS or ROD with a preferred alternative that differed from the airport sponsorâs proposed de- velopment project. Other federal, state, and local agencies con- ducting parallel environmental reviews for the purposes of special-purpose environmental laws or state mini-NEPA laws may arrive at a different preferred alternative than that selected by the FAA. Typically, this does not hinder the airport sponsorâs project, since the FAA is the agency that will primarily be taking federal action (by approv- ing or funding the project). However, where an- other agency is required to take action such as issuing a permit, and the relevant special-purpose law imposes a stricter requirement on alterna- tives, the preferred alternative of another agency could conceivably impose a roadblock for the air- port sponsorâs project. To reduce the likelihood of conflicting âpreferred alternativesâ on high- priority airport development projects that are sub- ject to streamlined environmental review, all other federal or state agencies participating in the streamlined review process are required to con- sider only the alternatives that the FAA has de- termined are reasonable.232 Thus, alternatives that are rejected by the FAA during its three- tiered review process can never be selected by a 231 See, e.g., City of Dania Beach v. FAA, 628 F.3d 581, 583 (D.C. Cir. 2010) (âAfter considering several possible alternatives to the [airport sponsor]âs proposal and con- ducting a lengthy environmental review process, the FAA issued a Record of Decision that with minor modifications approved the [sponsor]âs proposal.â); Alliance for Legal Action v. FAA, 69 F. Appâx 617, 620 (4th Cir. 2003) (âOn the basis of the EIS, the FAA selectedâ¦a slight modifica- tion of the original proposal, and approved the expansion in a Record of Decision (ROD.â); St. Johnâs United Church of Christ v. City of Chicago, 401 F. Supp. 2d 887, 892 (N.D. Ill. 2005) (âThe FAA concluded that the alternative pro- posed by [the airport sponsor]âwith some refinementâ was the preferred alternative.â). 232 49 U.S.C. Â§ 47171(k) (2012); see also FAA Order 5050.4B, Â§ 1505.j(1) (2006).
29 cooperating agency as its âpreferred alterna- tive.â233 While the FAAâs EIS is being prepared, the air- port sponsor will continue to perform such pre- liminary work as may be required to obtain the necessary permits and other releases from other federal, state, or local agencies under special- purpose environmental laws or state mini-NEPA laws.234 However, if the FAA learns that the air- port sponsor âis about to take an action within the [FAA]âs jurisdiction that wouldâ¦limit the choice of reasonable alternatives, the responsible FAA official shall promptly notify the applicant that the FAA will take appropriate action to insure that the objectives and procedures of NEPA are achieved.â235 In other words, after it has proposed development requiring an EIS, the airport spon- sor has an obligation to allow the FAA to consider as broad a range of alternatives as possible, until the FAA has documented its preferred alternative in the EIS. D. Mitigation Measures i. Mitigation Discussion at the Pre-NEPA Planning Stage Mitigation of environmental impacts is an on- going responsibility of airport sponsors. Noise mitigation, in particular, is one of the few things (in addition to the construction and operation of airport facilities) on which public use airports are authorized to spend airport revenues.236 Where there are existing noise concerns or incompatible land uses surrounding the airport, NEMs consid- ered in the planning process may indicate that the airport sponsor needs to enter into a Noise Com- patibility Program instead of, or in addition to, the proposed development project. The purpose of the Noise Compatibility Program will be to miti- gate noise impacts of the existing airport layout; additional measures to mitigate the impact of the new development should be considered in the 233 Natâl Mitigation Banking Assân v. U.S. Army Corps of Engârs, No. 06-CV-2820, 2007 U.S. Dist. LEXIS 10528, at *82 (N.D. Ill. Feb. 14, 2007) (âRequiring the Corps to con- sider other alternatives would only waste the Corpsâs time, because alternatives rejected by the FAA could never be selected.â). 234 FAA Order 1050.1E, Â§ 522b (2006). 235 FAA Order 1050.1E, Â§ 522b (2006). 236 49 U.S.C. Â§ 47107(b) (2012); see also FAA Airport Sponsor Grant Assurance 25 (2012). NEPA process rather than the Noise Compatibil- ity Program.237 Because mitigation is an ongoing responsibil- ity, there are few stated requirements for the air- port sponsor to specifically consider mitigation measures when planning a new development pro- ject, before the NEPA process begins. However, if the proposed development project is expected to impact a specially protected environmental re- source, then the airport sponsor will probably eventually be required by the relevant special- purpose law to demonstrate that the airport spon- sor has taken steps to minimize the environ- mental impact of the project. Therefore, the air- port sponsor is directed to â[c]onsider conceptual mitigation in project design to reduce unavoidable environmental effectsâ when it knows that its proposed project will impact a specially protected environmental resource.238 Generally speaking, to qualify for a Categorical Exclusion from NEPA, the proposed development project should not require mitigation measures to reduce its environmental impact below the FAAâs significance thresholds. However, special-purpose environmental laws may have stricter mitigation requirements than NEPA, requiring the airport sponsor to âminimizeâ impacts to specially pro- tected environmental resources. If the proposed development project may impact a specially pro- tected environmental resource, then the FAA or the airport sponsor is required to consult with the outside agency with jurisdiction over the resource or special-purpose law to discuss the airport spon- sorâs conceptual mitigation measures.239 Even if the impacts are not expected to exceed the FAAâs significance thresholds under NEPA, the FAA cannot issue a Categorical Exclusion for the pro- posed development project unless the outside agency concurs with the mitigation measures, and the FAA must require that the airport sponsor implement the mitigation measures by making them a condition of FAA approval.240 If the outside agency is not convinced that the mitigation meas- ures will satisfy the requirements of the special- purpose law, a Categorical Exclusion is not al- lowed and an EA or EIS or both must be pre- pared. 237 FAA Order 5050.4B, Â§ 706.g(3) (2006). 238 FAA Order 5050.4B, Â§ 201.b(1)(c) (2006). 239 FAA Order 5050.4B, Â§ 606.b(3) (2006). 240 Id.
30 ii. Mitigation Discussion in the Environmental Assessment As a general rule, if the airport sponsorâs EA indicates that its proposed project will have sig- nificant environmental impacts, a FONSI cannot be issued and the FAA will have to prepare an EIS before it can approve the project. However, this is not the case if the airport sponsorâs EA proposes mitigation measures that will reduce the environmental impacts below the FAAâs signifi- cance thresholds for any given impact category.241 In that case, the FAA may issue a âmitigated FONSI,â where FAA approval is conditioned upon the airport sponsor actually implementing the proposed mitigation measures. NEPA is a procedural statute and generally does not impose substantive mitigation require- ments. For example, just because a FONSI is is- sued, there is no requirement in NEPA that the project actually have no significant environmental impact. Likewise, the EA is only required to dis- cuss possible mitigation measures; NEPA does not specifically require those mitigation measures to be implemented. However, the airport sponsor should recognize that mitigation measures in the FAAâs FONSI may be substantive, particularly if the FAAâs opinion is that the proposed develop- ment project would have significant environ- mental impacts if the mitigation measures are not implemented. In that case, the FONSI is said to be âconditionalâ upon the mitigation measures, and the FONSI can be annulled if the airport sponsor fails to implement the mitigation re- quirements.242 If that is the case, an airport spon- sor should not be confused by the FAAâs âuncondi- tional approvalâ of an ALP resulting from a conditional FONSI. The âunconditional approvalâ of the ALP merely signifies that the FAAâs envi- ronmental review is complete and that the airport sponsor may begin development,243 subject to any mitigation requirements in the FONSI. The FAA will typically include the required mitigation measures from the conditional FONSI in its âun- conditional approvalâ letter to the airport spon- sor.244 The FAA may also include those mitigation requirements as special grant assurances, so that failure to comply with the mitigation require- ments could cause the airport sponsor to forfeit its 241 FAA Order 1050.1E, Â§ 405g(4) (2004); see also FAA Order 1050.1E, App. A, Â§ 14.2a (2004). 242 FAA Order 5050.4B, Â§ 808.b (2006). 243 FAA Order 5050.4B, Â§ 202.c(2) (2006). 244 FAA Order 5050.4B, Â§ 808 (2006). grant funds for the project.245 If the airport spon- sor wants to change any mitigation requirements that are conditions of the FONSI, the changes must be approved by the FAA, only after deter- mining that the changes will not result in signifi- cant environmental impacts.246 The EA is also to discuss potential mitigation measures that are not conditions of the FONSI. In particular, when the proposed action will impli- cate special-purpose environmental laws, those laws may have requirements to âminimizeâ im- pacts to specially protected environmental re- sources. This requirement to âminimizeâ environ- mental impacts is typically stricter than the airport sponsorâs obligation under NEPA to dis- cuss mitigation measures in the EA. If a specially protected environmental resource will be im- pacted, the FAA may issue a FONSI on the basis of the EAâs discussion of mitigation measures, with the understanding that the airport sponsor will develop a more detailed mitigation plan to satisfy the requirements of the special-purpose environmental law, in consultation with an out- side agency with jurisdiction over the resource or special-purpose law. For example, when a pro- posed airport development project will impact wetlands, the EA âmust contain a description of proposed mitigations, with the understanding that a detailed mitigation plan must be developed to the satisfaction of the [special-purpose] permit- ting agency in consultation with those agencies having an interest in the affected wetland.â247 Since the detailed mitigation plan is to be devel- oped after the FONSI is issued, the implication is that mitigation measures discussed in the EA for specially protected environmental resources are subject to change, and the FONSI is not condi- tioned on implementation of those mitigation measures. This issue was examined in Association of Citi- zens to Protect and Preserve the Environment of the Oak Grove Community v. FAA.248 In that case, the airport sponsorâs proposed runway extension project would impact 18 acres of protected wet- lands.249 In its EA, the airport sponsor proposed to mitigate the impact by creating 24 acres of new 245 FAA Order 5050.4B, Â§ 808.b (2006). 246 FAA Order 1050.1E, Â§ 405g (2004). 247 FAA Order 1050.1E, App. A, Â§ 18.2f (2004). 248 287 F. Appâx 764 (11th Cir. 2008). 249 Appellantâs Brief at 17, Assân of Citizens to Protect and Pres. the Envât of the Oak Grove Cmty. v. FAA, No. 07- 15675, 287 F. Appâx. 764 (11th Cir. 2008).
31 wetlands in the vicinity of the airport.250 The FAA issued a FONSI, which approved the runway ex- tension, and said that the airport sponsor would prepare a detailed mitigation plan âthat will com- pensate for the impacts associated with the pro- jectâ and that the airport sponsor was ârequired to finalize their wetland mitigation plan prior to the start of construction.â251 The airport sponsor re- ceived grant funds from the FAA based on the FONSI.252 The airport sponsor later obtained a permit from the U.S. Army Corps of Engineers to dredge and fill the wetlands, with the understand- ing that the airport sponsor would use some of its FAA grant funds to purchase 20 wetlands credits from a wetlands mitigation bank.253 The U.S. Court of Appeals for the 11th Circuit declined to annul the FONSI based on the airport sponsorâs change in mitigation measures, because âthe FAA did not condition issuance of the FONSI on the [airport sponsor]âs fulfillment of those meas- ures.â254 Because approval of the FONSI was not conditioned on the airport sponsorâs implementa- tion of the specific wetlands mitigation measures discussed in the EA, the airport sponsor was not even required to submit the change in mitigation measures to the FAA for approval.255 iii. Mitigation Discussion in the Environmental Impact Statement The FAA must prepare an EIS if the airport sponsorâs proposed development project will have significant environmental impacts that cannot be satisfactorily mitigated to insignificant levels. Like the EA, the EIS is required to discuss poten- tial mitigation measures. NEPA itself does not specifically require the mitigation measures dis- cussed in the EIS to actually be implemented. In the EIS, the FAA may discuss potential mitiga- tion measures that are outside of the jurisdiction and control of either the FAA or the airport spon- sor, so that the FAA effectively cannot require such mitigation measures to actually be imple- mented. However, the airport sponsor should distin- guish between potential mitigation measures that are merely discussed in the EIS, and those that are made a part of the FAAâs preferred alterna- tive. Ideally, the FAAâs proposed mitigation meas- 250 Id. at 17â18. 251 Id. at 18. 252 Id. 253 Id. at 18â19. 254 287 F. Appâx 764, 766 (11th Cir. 2008). 255 Id. at 767. ures will first be published in a Draft EIS that is subject to review and comment from other agen- cies and the public (as well as the airport spon- sor).256 As mentioned previously, the preferred alternative in the FAAâs EIS will typically be very similar to the airport sponsorâs proposed project, with only modest modifications to address public comments or to mitigate environmental im- pacts.257 When the mitigation measures are ex- pressly made part of the preferred alternative that is approved by the FAA in its ROD, there is a substantive requirement on the airport sponsor to implement those mitigation measures. Therefore, before a substantive mitigation requirement ap- pears in the Final EIS, the FAA âmust consult the airport sponsor, if in response to a comment, FAA is considering asking the sponsor to commit to change theâ¦proposed mitigation measures.â258 The airport sponsor must recognize the difference between potential mitigation measures that are merely discussed in the EIS (which may be out- side of the jurisdiction of the FAA or the airport sponsor), and the mitigation measures that are incorporated into the FAAâs preferred alternative. âSponsor awareness of and concurrence with po- tential mitigation concepts within its authority is crucial.â259 The EIS may also discuss potential mitigation measures that are not incorporated into the FAAâs preferred alternative. In particular, when the pro- posed action will implicate special-purpose envi- ronmental laws, those laws may have require- ments to âminimizeâ impacts to specially protected environmental resources. The require- ment to âminimizeâ environmental impacts is stricter than the FAAâs obligation under NEPA to discuss potential mitigation measures. In that case, in addition to the FAAâs ROD, the airport sponsor may also have to obtain a permit from the outside agency with jurisdiction over the specially protected environmental resource. That agency may impose its own substantive mitigation re- quirements on the airport sponsor, as a condition of the permit. These mitigation requirements may 256 Davis Mountains Trans-Pecos Heritage Assân v. FAA, 116 F. Appâx 3, 14â15 (5th Cir. 2004). 257 See, e.g., Mass. Port Auth. v. City of Boston, No. 012731BLS2, 17 Mass. L. Rep. 125, 2003 Mass. Super. LEXIS 429, at *19â20 (Nov. 18, 2003) (approving all com- ponents of the airport sponsorâs airport development pro- ject subject to the airport sponsorâs âobligation to imple- ment certain mitigation measuresâ). 258 FAA Order 5050.4B, Â§ 1200.a (2006). 259 FAA Order 5050.4B, Â§ 911.a(2) (2006).