Airport Responsibility for Wildlife Management (2013)

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3 AIRPORT RESPONSIBILITY FOR WILDLIFE MANAGEMENT By Douglas J. Rillstone, P.A., and Caroleen M. Dineen, Esq. Broad and Cassel, Tallahassee, Florida I. BACKGROUND Wildlife strikes with aircraft pose a significant threat to public safety and airport operations. The Fed- eral Aviation Administration (FAA) recently identified the threat associated with wildlife strikes as “probably the most pressing issue we face in the airports world.”1 Public awareness and concern about aviation safety have increased in recent years with widely publicized wildlife strike incidents such as the January 2009 “Miracle on the Hudson”—the emergency landing of a US Airways flight in the Hudson River resulting from multiple bird strikes to the aircraft engines shortly af- ter takeoff. Examples of other aircraft wildlife strike incidents in recent years include: • Two emergency aircraft landings at New York air- ports within a 1-week period, occurring when 1) Canada geese struck the windshield of a JetBlue Airways Em- braer 190 departing from Westchester County Airport, and 2) after a bird strike to the right engine of a Delta Air Lines Boeing (B) 757 departing from John F. Ken- nedy International Airport (April 2012). • A bird strike of Air Force Two, the B-757 aircraft carrying Vice President Joe Biden, while the aircraft was on approach to Santa Barbara Airport in California (April 2012). • An engine shutdown during landing of a B-757 at Denver International Airport caused by ingestion of a red-tailed hawk, resulting in internal and external air- craft damage and an estimated repair cost of $4.5 mil- lion (September 2011). • A precautionary landing of a B-737-400 at Fort Lauderdale –Hollywood International Airport occurring after a turkey vulture strike that resulted in damage to the engine and generator (December 2010). • An emergency landing of a B-737-800 at Washing- ton Dulles International Airport after the aircraft struck birds flying in a “V” formation over the Potomac River, an incident resulting in $794,000 in estimated engine damage (February 2011). • A precautionary landing of an Airbus 300 at Tulsa International Airport occurring after the aircraft hit a flock of large birds, resulting in damage to the engine 1 James Williams, Splat—The Story of Snarge: “Accidental” Meetings between Aircraft and Wildlife, FAA Safety Briefing (Nov.–Dec. 2011), available on the FAA Web site at http://www.faa.gov/news/safety_briefing/2011/media/NovDec20 11Splat.pdf. and right wing and an estimated cost of $5.8 million (March 2011). • Ingestion of multiple birds into the left engine of a United Airlines B-757 after landing at Denver Interna- tional Airport, which damaged the engines blades and resulted in impact marks to the fuselage (September 2011). • Eight bird strikes to aircraft in 1 month at Bur- lington Airport in Vermont, including one gull strike and seven strikes related to small birds (e.g., sparrows and wood thrushes) (October 2011). • Damage to a Cessna 550 at Warroad International Memorial Airport in Minnesota when the aircraft struck a white-tailed deer on the runway during land- ing (December 2011).2 The FAA Wildlife Strike Database, established through an interagency agreement between the FAA and the United States Department of Agriculture (USDA), includes 109,085 wildlife strike reports from January 1990 through December 2010, with 9,597 of those strikes in 2010.3 This database, which is esti- mated to include reports of only 39 percent of actual strike incidents, includes an additional 23,773 reports for the period January 2011–February 2012.4 Since 1988, aircraft wildlife strikes have resulted in the loss of at least 219 lives and more than 200 civil and mili- tary aircraft.5 The annual direct (e.g., aircraft damage) and indirect (e.g., time out of service) expenses to civil aviation worldwide are estimated at more than $1.2 billion annually.6 The USDA reports the annual cost of reported U.S. wildlife strikes from 1990 to 2008 reached a maximum of $603.7 million in direct and indirect losses.7 According to a 2011 FAA report: 2 Sandra Wright (Manager, FAA Wildlife Strike Database), Some Significant Wildlife Strikes to Civil Aircraft in the United States, January 1990–December 2011, United States Department of Agriculture Animal and Plant Health Inspec- tion Service (Jan. 11, 2012), available for download at http://digitalcommons.unl.edu/birdstrikeother/23/. The data- base includes strikes of U.S. civil aircraft and foreign carrier aircraft operating in the United States. 3 Id. 4 Search the FAA Wildlife Strike Database at http://wildlife- mitigation.tc.faa.gov/wildlife/database.aspx. 5 Wildlife Damage Management, United States Department of Agriculture Animal and Plant Health Inspection Service, http://www.aphis.usda.gov/wildlife_damage/nwrc/ research/aviation/index.shtml. 6 Id. 7 Id.

4 Experts put the total losses for wildlife strikes at $625 million per year in direct damage and associated costs, and over 600,000 hours of aircraft downtime. In an indus- try that runs on razor thin margins at virtually every level, those losses could be crippling. Financial losses pale in comparison with the loss of life that occurs in some wildlife strikes.8 Although much of the wildlife hazard threat involves aircraft colliding with birds during operations (e.g., takeoff, flight, and landing), other species create air- craft wildlife hazards. The FAA’s 2007 ranking of 25 species relative to aircraft hazard (damage and effect on airport operations) includes numerous bird species but also includes species such as deer and coyote (see Table 1).9 Other nonavian species that may create hazards to aircraft include elk, alligators, and foxes.10 According to the USDA, the threat associated with these species has been exacerbated by their increasing populations and by adaptation “to living in urban environments, includ- ing airports.”11 Expanding flight operations, increasing wildlife populations, airport operational and management prac- tices, and land uses on and near the airport property are all factors in assessing the wildlife hazard threat to airport operations. Increased attention to wildlife haz- ards on or near airport property has resulted in greater emphasis on identifying the causes of wildlife strikes and actions airport operators can take to eliminate or reduce the threat of wildlife hazards and decrease the potential for wildlife-aircraft collisions. This digest addresses the federal and state legal framework for airport wildlife hazard reduction and management. Airport regulation and wildlife manage- ment responsibilities are largely matters of federal law, which governs classification, certification, federal grant funding, and operation of airports and which prescribes actions airport operators must take to evaluate and respond to wildlife hazards at airports. The digest iden- tifies applicable laws, regulations, directives, grant as- surances, agreements, and guidance concerning an air- port operator’s responsibilities to manage wildlife and respond to wildlife hazards on airport property and the legally acceptable means airports can use to remove or discourage wildlife from airport operations areas. The digest further describes airport wildlife management activities, including vegetation control and habitat management; observation and detection of wildlife be- havior and movement; wildlife capture, dispersal, re- moval, and exclusion; and harassment and deterrent techniques to eliminate or deter wildlife from the air- 8 Williams, supra note 1. 9FAA Advisory Circular 150/5200-33B–Hazardous Wildlife Attractants On or near Airports (Aug. 28, 2007), http://www.faa.gov/documentLibrary/media/advisory_circular/1 50-5200-33B/150_5200_33b.pdf. 10 Richard A. Dolbeer & Edward C. Cleary, Wildlife Hazard Management at Airports 11, tbl. 2-5 (July 2005), available for download at http://digitalcommons.unl.edu/icwdm_ usdanwrc/133/. 11 Williams, supra note 1. craft operations areas. In addition, the digest discusses the federal and state laws addressing compatibility of off-airport land uses with aircraft operations. The digest also addresses federal and state wildlife and land-use laws and regulations affecting an airport operator’s efforts to respond to airport wildlife hazards. Airport operators must comply with federal and state species protection laws, which include prohibitions, re- quirements, and permitting programs to which airport operational activities may be subject and which regu- late activities on airport property affecting those spe- cies. In addition to protected species laws, state laws and regulations concerning acceptable methods for cap- ture, relocation, and disposal of nuisance and nonpro- tected species may affect how airport operators respond to wildlife threats from the affected species. Further, state and federal environmental and land-use laws (e.g., wetlands) may affect the use of and restrictions on land within the airport property and the compatibility of land uses within the vicinity of the airport. The digest does not address specific laws, regula- tions, and directives concerning wildlife management and wildlife hazard response at military airports other than in the context of interagency agreements with the FAA. The digest also does not discuss any local airport or wildlife management laws or regulations or any fed- eral and state land-use or environmental laws and regulations pertaining to siting, development, or opera- tion of airports that do not specifically relate to the top- ics described above. In addition, this digest does not discuss tort liability of airports related to wildlife haz- ard incidents, legal or regulatory obligations, or failure to comply with a Wildlife Hazard Management Plan.

5 Table 1. Ranking of 25 species groups as to relative hazard to aircraft (1 = most hazardous) based on three criteria (damage, major damage, and effect on flight); a composite ranking based on all three rankings; and a relative hazard score. Data were derived from the FAA National Wildlife Strike Database, January 1990–April 2003.1 Ranking by criteria Species group Damage2 Major damage3 Effect on flight4 Composite ranking5 Relative hazard score6 Deer 1 1 1 1 100 Vultures 2 2 2 2 64 Geese 3 3 6 3 55 Cormorants/pelicans 4 5 3 4 54 Cranes 7 6 4 5 47 Eagles 6 9 7 6 41 Ducks 5 8 10 7 39 Osprey 8 4 8 8 39 Turkey/pheasants 9 7 11 9 33 Herons 11 14 9 10 27 Hawks (buteos) 10 12 12 11 25 Gulls 12 11 13 12 24 Rock pigeon 13 10 14 13 23 Owls 14 13 20 14 23 H. lark/S. bunting 18 15 15 15 17 Crows/ravens 15 16 16 16 16 Coyote 16 19 5 17 14 Mourning dove 17 17 17 18 14 Shorebirds 19 21 18 19 10 Blackbirds/starling 20 22 19 20 10 American kestrel 21 18 21 21 9 Meadowlarks 22 20 22 22 7 Swallows 24 23 24 23 4 Sparrows 25 24 23 24 4 Nighthawks 23 25 25 25 1 Source: FAA Advisory Circular 150/5200-33B–Hazardous Wildlife Attractants on or near Airports (Aug. 28, 2007). 1. Excerpted from the Special Report for the FAA, Ranking the Hazard Level of Wildlife Species to Civil Aviation in the USA: Update #1, July 2, 2003. Refer to this report for additional explanations of criteria and method of ranking. 2. Relative rank of each species group was compared with every other group for the three variables, placing the spe- cies group with the greatest hazard rank for > 2 of the 3 variables above the next highest ranked group, then proceeding down the list. 3. Percentage values, from Tables 3 and 4 in Footnote 1 of the Special Report, for the three criteria were summed and scaled down from 100, with 100 as the score for the species group with the maximum summed values and the greatest potential hazard to aircraft. 4. Aircraft incurred at least some damage (destroyed, substantial, minor, or unknown) from strike. 5. Aircraft incurred damage or structural failure, which adversely affected the structure strength, performance, or flight characteristics, and which would normally require major repair or replacement of the affected component, or the damage sustained makes it inadvisable to restore aircraft to airworthy condition. 6. Aborted takeoff, engine shutdown, precautionary landing, or other.

6 II. FEDERAL REGULATION OF AIRPORT OPERATIONS The U.S. Department of Transportation (USDOT) is the federal agency authorized and required under fed- eral law to regulate aviation and other modes of trans- portation in the United States. The USDOT mission is to “Serve the United States by ensuring a fast, safe, efficient, accessible and convenient transportation sys- tem that meets our vital national interests and en- hances the quality of life of the American people, today and into the future.”12 The FAA is the division within the USDOT that regulates the air transportation sys- tem, including regulation of aircraft, airmen, airports, and the national airspace system.13 Among the FAA’s responsibilities is regulation of airport operations and issuance of Airport Operating Certificates. The FAA has adopted regulations governing certifi- cation and operations of aircraft, airmen, airports, and the national airspace system. The Federal Aviation Regulations (FARs) described below address specific aspects of airport development, certification, construc- tion, operations, and funding. • Certification of Airports (14 C.F.R. Part 139): Es- tablishes requirements for the certification and opera- tion of land carriers that are conducted with an aircraft having a seating capacity of more than 30 passengers. Specifies requirements for preparation and mainte- nance of an Airport Certification Manual. • Objects Affecting Navigable Airspace (14 C.F.R. Part 77): Includes requirements for notifying the FAA of proposed airport construction or modifications under certain circumstances. Specifies standards for deter- mining obstructions in navigable airspace. Authorizes public hearings regarding potential hazardous effects of proposed construction or modification on air navigation. Provides for studies of air navigation obstructions to assess safe and efficient use of airspace. • Airport Noise Compatibility Planning (14 C.F.R. Part 150): Lists procedures for developing and submit- ting airport noise compatibility planning programs. • Federal Aid to Airports (14 C.F.R. Part 151): Gov- erns FAA award of airport construction and develop- ment grants. Identifies the FAA Advisory Circulars incorporated into the FAA airport development stan- dards. Requires FAA approval of an airport layout plan and changes to the plan. Specifies that airport devel- opment under the Federal-Aid Airport Program must be 12 See the mission statement at “About DOT–Who We Are” on the United States Department of Transportation (USDOT) Web site, http://www.dot.gov. 13 The FAA was first established as an independent federal agency (Federal Aviation Agency) in 1958 by the Federal Avia- tion Act, Pub. L. No. 85-726, 72 Stat. 737 (1958). Through the federal agency reorganization implementing the 1966 Depart- ment of Transportation Act, the FAA became an administra- tion within the USDOT, Pub. L. No. 89-670, 80 Stat. 931 (1966), codified at 49 U.S.C. § 106. done according to the FAA-approved airport layout plan. • Airport Aid Program (14 C.F.R. Part 152): Speci- fies eligibility and application requirements for funding of airport planning and development under the Airport and Airway Development Act. Describes funding eligi- bility requirements and application procedures and provisions for funding, accounting, and reporting re- quirements; nondiscrimination in airport aid programs; suspension and termination of grants; and energy con- servation programs. • Notice of Construction, Alteration, Activation, and Deactivation of Airports (14 C.F.R. Part 157): Specifies requirements for an airport operator to notify the FAA when proposing to construct, alter, activate, or deacti- vate a civil or joint-use (civil/military) airport or to alter the status of such an airport. • Establishment and Discontinuance Criteria for Air Traffic Control Services and Navigational Facilities (14 C.F.R. Part 170): Specifies the criteria for establish- ment of air traffic control services. • Non-Federal Navigation Facilities (14 C.F.R. Part 171): Describes the requirements for approval of in- strument flight rules (IFR) procedures and the re- quirements for approval, performance requirements, installation requirements, and maintenance and opera- tions requirements for non-federal aids to navigation. Airport Certification Federal Aviation Act The FAA is the agency authorized to issue opera- tional certificates, including airman certificates, airwor- thiness certificates, air carrier operating certificates, and Airport Operating Certificates.14 The FAA is the agency directed to issue an Airport Operating Certifi- cate to a person desiring to operate an airport that meets one of the following criteria: 1) serves an air car- rier operating aircraft designed for at least 31 passen- ger seats; 2) is not located in Alaska and serves sched- uled passenger operation of an air carrier with aircraft designed for 10 to 30 passenger seats; and 3) requires a certificate based upon the determination of the FAA Administrator.15 Among other conditions, federal law directs that the Airport Operating Certificate contain terms required to ensure safety in air transportation.16 Federal law authorizes the FAA to reinspect certifi- cated facilities and to reexamine issued operating cer- tificates. The applicant for or holder of an Airport Op- erating Certificate must consent to inspections of the airport facility to ensure compliance with FAA certifica- tion requirements.17 The FAA is authorized to amend, modify, suspend, or revoke an Airport Operating Cer- tificate.18 Reasons for FAA amendment, modification, 14 49 U.S.C. § 44701, et seq. 15 49 U.S.C. § 44706. 16 49 U.S.C. § 44706(b). 17 14 C.F.R. § 139.105. 18 49 U.S.C. § 44709.

7 suspension, or revocation of an Airport Operating Cer- tificate include the agency’s determination that “safety in air commerce or air transportation and the public interest” require this action.19 The process for issuance and amendment, modification, suspension, or revoca- tion of Airport Operating Certificates is specified in federal statutes and regulations.20 Airport Operating Certificates Airports are subject to a variety of federal regula- tions. The FAA-regulated airports are required to ob- tain FAA certification based on the criteria specified in the regulations.21 Airport Operating Certificates are issued to Class I, II, III, and IV airports, as those cate- gories are defined in FAA regulations.22 FAA regula- tions specify the process and requirements for issuance of Airport Operating Certificates.23 The FARs specify the requirements for application and issuance of an Airport Operating Certificate. 24 The airport operator applying for certification must allow the FAA to make scheduled or unannounced inspections to determine compliance with the Federal Aviation Act and FARs certification requirements.25 Airports receiving certification from the FAA under 14 C.F.R. Part 139 are required to take action to ad- dress wildlife hazards. The FARs specify the airport 19 49 U.S.C. § 44709(b)(1)(A). 20 See 49 U.S.C. § 44709 and 14 C.F.R. Pt. 139. 21 14 C.F.R. § 139.101. FAA certification regulations do not apply to heliports, airports operated by the United States, air- ports serving scheduled air carrier service only based on desig- nation as an alternate airport, and Alaska airports if the air- port only serves scheduled operations of small air carrier aircraft and does not serve scheduled or unscheduled opera- tions of large air carrier aircraft or during periods when other Alaska airports are not serving large air carrier aircraft opera- tions 14 C.F.R. § 139.101(c). 22 14 C.F.R. Pt. 139.5. Class I airports serve scheduled op- erations of large air carrier aircraft that can also serve un- scheduled passenger operations of large air carrier aircraft and/or scheduled operations of small air carrier aircraft. Class II airports serve only scheduled operations of small air carrier aircraft and the unscheduled passenger operations of large air carrier aircraft. Class III airports serve only scheduled opera- tions of small air carrier aircraft. Class IV airports serve only unscheduled passenger operations of large air carrier aircraft. 23 14 C.F.R. Pt. 139. 24 FAA will issue an airport operating certificate if the ap- plicant demonstrates compliance with the regulatory require- ments and satisfies the FAA conditions. Those conditions in- clude FAA approval of the airport operator’s airport certification manual. In addition, the FAA must conclude after investigation that the airport operator “is properly and ade- quately equipped and able to provide a safe airport operating environment” consistent with any safety limitations imposed by the FAA and the airport certification manual’s require- ments (14 C.F.R. § 139.107). When issued, the airport operat- ing certificate remains effective until the certificate is surren- dered by the airport operator or suspended or revoked by the FAA (14 C.F.R. § 139.109). 25 14 C.F.R. § 139.105. operator “must take immediate action to alleviate wild- life hazards whenever they are detected.”26 “Wildlife hazard” is defined in the FAR as a “potential for a dam- aging aircraft collision with wildlife on or near an air- port.” Wildlife in this regulatory definition specifically includes feral animals and domestic animals not within the control of their owners.27 Airport Certification—FAA Regulations The Airport Certification Manual is approved by FAA as part of the Airport Operating Certificate application process, and must describe the information needed by the airport operations personnel to comply with the FARs’ operations regulations,28 including the airport’s operating procedures, facilities and equipment, and responsibility assignments related to airport operations.29 The FARs specify 29 required operations procedure “elements” to be incorporated into the Airport Certification Manual.30 A description of the airport operator’s procedures for wildlife hazard management also is a required element of the manual.31 A certificated airport operator must have trained personnel to implement the Airport Certification Manual’s requirements. The airport operator’s description of airport personnel operations training is one of the 29 required elements of the Airport Certification Manual.32 The FARs also require an Airport Operating Certificate holder to provide and equip “sufficient and qualified trained personnel” to comply with the FAA’s Airport Certification Manual requirements.33 Personnel who access aircraft movement areas and safety areas and those whose duties relate to the airport operator’s compliance with the Airport Certification Manual must receive initial and annual training concerning airport operations and manual compliance. Personnel also may be required to comply with training requirements concerning specifically enumerated operational elements, including wildlife hazard management. 26 14 C.F.R. § 139.337(a). 27 14 C.F.R. § 139.5. 28 14 C.F.R. § 139.201. The FAA revised the regulatory re- quirements for airport certification (14 C.F.R. Part 139) in Feb. 2004. In Nov. 2004, the FAA issued guidance addressing the requirements for airport operators to revise and submit airport certification manuals consistent with the rule revision and consistent with the specified deadlines (FAA CertAlert 04-14: Enforcement Policy–Submission of ACM to FAA in Accordance with Pt. 139.101 General Requirements (Nov. 4, 2004)). 29 14 C.F.R. § 139.203(a). 30 The elements include the airport operator’s emergency plan and procedures for satisfying aircraft rescue and fire- fighting requirements; reporting airport conditions; removing, marking, or lighting obstructions; maintaining paved, un- paved, and safety areas; controlling pedestrian and ground vehicles in movement and safety areas; and maintaining mark- ing, sign, and lighting systems. 31 14 C.F.R. § 139.203(b). 32 14 C.F.R. § 139.203(a). 33 14 C.F.R. § 139.303.

8 Safety Federal Aviation Act Federal law directs the FAA to develop federal policy and plans for use of the Nation’s navigable air space. The FAA is authorized to adopt regulations designed to ensure aircraft safety and efficient use of airspace. Federal law also directs that the FAA’s air traffic regulations must address navigation, protection, and identification of aircraft; protection of individuals and property on the ground; efficient use of navigable airspace; and prevention of collisions between aircraft and other vehicles or airborne objects.34 The FAA Administrator is required by federal law to promote safety in civil aircraft by establishing minimum safety standards for aircraft design, construction, performance, operations, and inspection, and for air carriers and airport operators. The FAA is required by federal law to carry out its federal requirements “in a way that best tends to reduce or eliminate the possibility or recurrence of accidents” in air transportation.35 Federal law prescribes the process for challenging violations of federal aviation safety laws. Under federal law any person may file a written complaint with the FAA concerning violation by any person of the aviation safety duties prescribed by the statute. Federal law specifies the process for the FAA to investigate the complaint and to take action (e.g., issue an order) to compel compliance with the statutory requirements if warranted.36 The FAA may issue emergency regulations or an emergency order, based on a complaint or on its own initiative, when the FAA determines an emergency exists concerning safety in air commerce. The agency order remains in effect for the duration specified in the order or until the order is superseded.37 The FAA order may be appealed by a person “disclosing a substantial interest” in the order.38 The FAA or the Attorney General may file a civil ac- tion to enforce statutory aviation safety requirements, FAA regulatory requirements, or the requirements of any agency order, certificate, or permit.39 In addition, a civil action may be filed by an “interested person” to enforce the statutory certification requirements.40 34 49 U.S.C. § 40103. 35 49 U.S.C. § 44701. 36 49 U.S.C. § 46101. 37 49 U.S.C. § 46105. 38 49 U.S.C. § 46110. 39 49 U.S.C. §§ 46106 and 46107. 40 49 U.S.C. § 46108. The U.S. Department of Transportation (USDOT) is required under federal law to submit an annual report to Congress concerning the FAA’s safety enforcement activities.41 Air Commerce and Safety Federal policy concerning economic regulation of air commerce includes direction to the USDOT Secretary to consider “assigning and maintaining safety as the high- est priority in air commerce” as a matter of the public interest.42 In regulating air commerce the FAA must consider, among other safety considerations specified by federal law to be in the public interest, maintenance and enhancement of safety and security as the highest priority and must address the regulation of air com- merce in a way that best promotes safety.43 The FAA also must consider the interests of safety and efficiency of civil and military operations in controlling the use of the navigable airspace and regulating aircraft opera- tions. In addition, federal law authorizes the FAA to contract or award grants for collection of airport safety data.44 Safety Regulation—General Requirements The FAA is required to promote safety in civil aircraft flight operations by prescribing minimum safety standards for aircraft operations. The FAA must adopt regulations “required in the interest of safety” for aircraft design, material, equipment, construction, performance, inspection, and servicing. These regulations also must address provisions for reserve supplies of aircraft, aircraft equipment, and fuel oil, and for maximum hours of service for airmen and other air carrier employees. The statute also authorizes the FAA to adopt additional regulations and minimum standards when the FAA determines other practices, methods, or procedures concerning other aspects of aircraft operations are necessary for safety in air commerce.45 In adopting safety regulations, the FAA must consider an air carrier’s duty to “provide service with the highest possible degree of safety in the public interest.”46 Minimum Safety Requirements The FAA is authorized to adopt safety regulations for certificated airports and air carriers. The statute 41 The report must include a description of the specific op- erational measures of effectiveness used by the FAA to evalu- ate emerging safety problems; the agency’s efforts to update agency guidance and regulations to address technological, management, and structural changes in the aviation industry; the aviation industry’s compliance with aviation regulations and safety records during the fiscal year; and data on enforce- ment actions and civil penalty cases during the preceding 2 fiscal years (49 U.S.C. § 44723). 42 49 U.S.C. § 40101(a)(1). 43 49 U.S.C. § 40101(d). 44 49 U.S.C. § 47130. 45 49 U.S.C. § 44701(a). 46 49 U.S.C. § 44701(d).

9 allows the FAA to prescribe minimum safety standards for air carriers issued under an operating certificate by the FAA. The statutes also specify that the FAA may promulgate regulations imposing minimum safety standards on certificated airport operators.47 The FAA Administrator may grant an exemption from a regula- tory requirement prescribed by the FAA safety regula- tions when the exemption is determined to be in the public interest.48 Reducing and Eliminating Accidents The FAA must prioritize reduction or elimination of accidents when implementing its statutory safety re- quirements. The statute specifies that the FAA Admin- istrator is obligated to fulfill its statutory obligations “in a way that best tends to reduce or eliminate the possi- bility or recurrence of accidents” concerning air trans- portation.49 Responsibility to Report Unsafe Conditions Airports issued Airport Operating Certificates by the FAA are required to address wildlife hazards. According to the FARs, a certificated airport operator “must take immediate action to alleviate wildlife hazards” when detected.50 The regulations define “wildlife hazard” as a “potential for a damaging aircraft collision with wildlife on or near an airport.” Wildlife in this regulatory defini- tion specifically includes feral animals and domestic animals not within the control of their owners.51 In addition to the regulatory requirements, the FAA has issued numerous orders, directives, guidance, and policy concerning the duty to take action to address wildlife hazards with the potential to affect aircraft operations and to ensure that airport personnel are properly trained and qualified to take action to address wildlife hazards when necessary.52 • FAA Advisory Circular No. 150/5200-33B— Hazardous Wildlife Attractants on or near Airports (August 28, 2007): Addresses location of land uses on or in the vicinity of public-use airports that have the po- tential to attract hazardous wildlife. Specifies separa- tion criteria (5,000 ft and 10,000 ft, depending on the type of aircraft served) between an airport’s operations areas (e.g., aircraft movement, loading ramps, and air- craft parking) and uses that may be wildlife attrac- tants. Identifies land uses that may be incompatible with airport operations if located within the specified separation criteria, including waste disposal operations, 47 49 U.S.C. § 44701(b). 48 49 U.S.C. § 44701(f). 49 49 U.S.C. § 40101(c). 50 14 C.F.R. § 139.337(a). 51 14 C.F.R. § 139.5. 52 See FAA Order 5200.3D (Feb. 23, 1989)–Wildlife Hazard Detection and Control Procedures (Feb. 23, 1989): Cancelled effective Jan. 21, 2011. FAA CertAlert 01-01 Deer Aircraft Hazard: Cancelled by FAA CertAlert 04-16 Deer Hazard to Aircraft and Deer Fencing (Dec. 13, 2004). wetland mitigation, artificial marshes, agricultural ac- tivities, wastewater treatment facilities, landscaping, wastewater discharge and sludge disposal, and golf courses. Describes methods to address wildlife hazard attractants associated with existing land uses within the specified separation criteria. Provides for notifica- tion to FAA of changes in land uses in the vicinity of public-use airports. Ranks species groups that are de- termined to be hazardous to aircraft operations. • FAA Order JO7110.65T—Air Traffic Control, § 2- 1-22: Bird Activity Information (February 11, 2010): Prescribes air traffic control procedures and terminol- ogy for air traffic control personnel. Requires personnel to issue periodic advisory information on pilot-reported, tower-observed, or radar-observed and pilot-verified bird activity, including location, species, and size of birds, and to relay information to adjacent facilities when bird activity may become a factor in those areas. • FAA Advisory Circular No. 150/5200-36— Qualifications for Wildlife Biologist Conducting Wildlife Hazard Assessments and Training Curriculums for Airport Personnel Involved in Controlling Wildlife Haz- ards on Airports (June 28, 2006): Specifies the mini- mum requirements for the initial and recurring wildlife hazard management curriculum provided to airport personnel involved in implementing an FAA-approved Wildlife Hazard Management Plan. Identifies the quali- fications for wildlife biologists conducting Wildlife Haz- ard Assessments for certificated airports. • FAA Advisory Circular No. 150/5200-32A— Reporting Wildlife Aircraft Strikes (December 22, 2004): Explains the importance of reporting collisions between aircraft and wildlife, more commonly referred to as wildlife strikes. Also examines recent improvements in the FAA’s Bird/Other Wildlife Strike Reporting system, how to report a wildlife strike, what happens to the wildlife strike report data, how to access the FAA National Wildlife Aircraft Strike Database, and the FAA’s Feather Identification program.53 • FAA CertAlert 09-10—Wildlife Hazard Assess- ments in Accordance with Part 139 Requirements (June 11, 2009): Describes the requirements in 14 C.F.R. § 139.337(b) to conduct a Wildlife Hazard Assessment when a triggering event (as specified in the FAA regu- lations) occurs. Specifies the content of the assessment and qualifications for the person conducting the as- sessment and the required content of the assessment report. Identifies the FAA concern that airport opera- tors that have had triggering events have not conducted a Wildlife Hazard Assessment as required by the FAA regulations. • FAA CertAlert 06-0—Requests by State Wildlife Agencies to Facilitate and Encourage Habitat for State- Listed Threatened and Endangered Species and Species 53 The form is on the FAA Web site at http://www.faa.gov/documentLibrary/media/form/faa5200- 7.pdf. The wildlife strike report may be submitted electroni- cally through the FAA Wildlife Strike Reporting Web site at http://wildlife-mitigation.tc.faa.gov/wildlife/strikenew.aspx.

10 of Special Concern on Airports (November 21, 2006): Describes the procedures for airport operators and FAA certification inspectors to respond to requests by state wildlife agencies to facilitate and encourage habitats for state-listed threatened and endangered species or spe- cies of special concern occurring on airports that may pose a threat to aviation safety. Discusses concerns re- garding techniques that may increase wildlife hazards, be inconsistent with safe airport operations, and create a threat to aviation safety. • FAA CertAlert No. 02-06—Access to the FAA Na- tional Wildlife Aircraft Strike Database (October 1, 2002): Describes information available in the FAA Na- tional Wildlife Aircraft Strike Database for airport op- erators, airline operators, and FAA airport certification safety inspectors and provides these operators and in- spectors with instruction on obtaining access to the in- formation in the database. • FAA CertAlert 04-16—Deer Hazard to Aircraft and Deer Fencing (December 13, 2004): Provides recom- mendations concerning the types of fencing and re- quirements for fencing installation and maintenance to prevent deer from entering aircraft movement areas. Describes dangers associated with deer within aircraft movement areas. • FAA CertAlert 04-09—Relationship between FAA and WS (August 30, 2004): Identifies the roles and re- sponsibilities of the FAA and the USDA/Animal and Plant Health Inspection Service/Wildlife Services (WS) concerning wildlife hazards on or near airports. De- scribes the FAA’s role in airport operator certification, the requirement for certificated airports to develop and implement a Wildlife Hazard Management Plan, and the WS role in conducting Wildlife Hazard Assess- ments. Describes the Memorandum of Understanding between the FAA and WS (No. 12-4-71-0003-MOU), which establishes a cooperative agency relationship for resolving wildlife hazards to aviation. • FAA CertAlert 03-03—Guidelines for Submitting Bird Strike Feather Remains for Identification (August 29, 2003): Specifies guidelines for collection of feather and other bird/wildlife remains by aircraft operators, airport operating and maintenance inspectors, and for- eign air carriers operating at U.S. airports. Describes the process for submission of remains to the feather identification lab at the Smithsonian Institution, Mu- seum of Natural History. Explains the importance of identification research for understanding and preven- tion of bird-aircraft strike hazards and the role of op- erators and carriers in maintenance of a comprehensive database, accurate species identification, and for pro- viding species identification information to the FAA. • FAA CertAlert 98-05—Grasses Attractive to Haz- ardous Wildlife (September 21, 1998): Recommends that airport operators ensure that specified grass spe- cies and other varieties of plants attractive to hazard- ous wildlife are not used on airport property. Provides guidelines for avoiding use of these species for planting disturbed areas or areas in need of revegetation and for maintenance of areas already planted with these spe- cies. Describes threats to aircraft safety associated with concerns about planting with grass seeds that are major attractants to doves and other seed-eating birds. • FAA CertAlert 97-09—Wildlife Hazard Manage- ment Plan Outline (November 17, 1997): Describes the required content of a Wildlife Hazard Management Plan. Airport Funding—Airport Improvement Grants Airport Improvement Act. The Federal Airport Im- provement Act provides for FAA award of grants to public-use airports for planning, development, and noise compatibility projects.54 Under the Airport Im- provement Act, federal policy makes the safe operation of the airport and airway system the “highest aviation priority.”55 Federal Airport Improvement Program (AIP) grants are available to “public-use airports,” which are defined in federal law56 to include publicly owned air- ports and those privately owned airports that are used or intended for use for public purposes and are 1) des- ignated by FAA as a reliever airport,57 or 2) providing scheduled service and a minimum of 2,500 annual en- planements. Federal law authorizes the FAA to award grants from the Airport and Airway Trust Fund for the pur- pose of maintaining a “safe and efficient nationwide system of public-use airports” meeting present and fu- ture needs of civil aviation.58 The application and proc- ess for FAA award of AIP grants are specified in the statute.59 According to the statute, the grant application may be approved if the FAA determines that the airport project is consistent with authorized airport plans and will contribute to implementing Federal Aviation Act provisions, and that the airport grant recipient (spon- sor) has the legal authority and financial capability to implement the project as proposed.60 To be eligible for the AIP grants, the public-use air- port must be included in the National Plan of Inte- grated Airport Systems (NPIAS). The NPIAS is a report that is prepared by FAA and published every 2 years.61 The NPIAS identifies public-use airports and the type and estimated cost of eligible airport development at those airports during a 5-year period that the FAA de- termines necessary to “provide a safe, efficient, and integrated system of public-use airports adequate to anticipate and meet the needs” of civil aviation, na- tional defense requirements, and identified needs of the 54 49 U.S.C. ch. 471. 55 49 U.S.C. § 47101. 56 49 U.S.C. § 47102(21). 57 Federal law defines a “reliever airport” as an airport the FAA designates to relieve congestion at a commercial service airport and to provide more general aviation access to the overall community (49 U.S.C. § 47102(22)). 58 49 U.S.C. § 47104. 59 49 U.S.C. § 47105. 60 49 U.S.C. § 47106. 61 See http://www.faa.gov/airports/planning_capacity/ npias/.

11 U.S. Postal Service.62 The NPIAS for 2011– 2015 identi- fies 3,380 existing and proposed public-use airports that the FAA has determined are significant to national air transportation and therefore eligible to receive AIP grants. Wildlife hazard mitigation is one of the ele- ments addressed in the NPIAS. For the 2011– 2015 period, the NPIAS identifies an estimated $52.2 billion in AIP-eligible civil aviation infrastructure at public-use airports in the plan. Federal law defines the types of activities that may be eligible for AIP grants. The statutory definition of “airport development” identifies numerous activities related to construction, repair, or improvement of a public-use airport, including but not limited to: • Removing, lowering, relocating, marking, and lighting an airport hazard. • Acquiring or installing safety or security equip- ment required by the FAA. • Acquiring or installing firefighting, rescue, and aircraft deicing equipment. • Acquiring or installing windshear detection equipment. • Acquiring an interest in land or airspace needed to remove or mitigate an existing airport hazard or to limit the creation of a new airport hazard.63 The statute defines an “airport hazard” as a struc- ture, natural growth, or land use on or near a public- use airport that “obstructs or otherwise is hazardous” to takeoff or landing of aircraft.64 “Airport planning” is defined in the statute to include integrated airport sys- tem planning to provide information regarding the ex- tent, kind, location, and timing of future airport devel- opment.65 AIP grants generally fund projects that enhance air- port safety, capacity, and security and that respond to airport environmental concerns. AIP funds generally may be used on most airfield capital improvements or repairs as well as professional services (e.g., planning, design, and surveying) that are necessary for eligible projects. The FAA has identified types of projects that are eligible for AIP funding, including runway construc- tion and rehabilitation, safety area improvements, air- port layout plans, airfield drainage, land acquisition, and planning and environmental studies. Ineligible projects according to the FAA include office equipment, landscaping, industrial park development, marketing 62 49 U.S.C. § 47103. National Plan of Integrated Airport Systems (2011– 2015). Report of the Secretary of Transporta- tion to the United States Congress Pursuant to Section 47103 of Title 49, United States Code, http://www.faa.gov/airports/ planning_capacity/npias/reports/media/2011/npias_2011_ narrative.pdf (Sept. 27, 2010). The NPIAS is available on the FAA Web site at http://www.faa.gov/airports/planning_ capacity/npias/reports. 63 49 U.S.C. § 47102(3). 64 49 U.S.C. § 47102(4). 65 49 U.S.C. § 47102(5) and (8). plans, improvements for commercial enterprises, main- tenance or repair of buildings, and operational costs (e.g., salaries and supplies). AIP grants may cover 75 percent of eligible costs for large and medium primary hub airports (80 percent for noise program implementa- tion) and 95 percent of eligible costs for small primary, reliever, and general aviation airports.66 AIP grants are available for projects designed to mitigate or eliminate wildlife hazards. The FAA Airport Improvement Program Handbook describes the types of safety projects and wildlife hazard reduction projects for which the FAA may award a grant under the AIP.67 Eligible safety projects include fencing to discourage wildlife access to the airfield or terminal building.68 The AIP Handbook also specifies that an AIP grant may be awarded for airport capital improvement projects to reduce wildlife hazards that have been identified or anticipated because of planned construction or airport expansion, based on FAA directives concerning hazard- ous wildlife attractants.69 To be eligible, these projects must be designed to produce long-term solutions to the identified wildlife hazards.70 The Handbook describes two types of wildlife hazard reduction projects that may be eligible for AIP grant funding. The first is habitat modification, including removal of wildlife attractants through projects to improve drainage, eliminate or mod- ify man-made structures used for bird nesting or roost- ing, acquisition of contiguous land interests (fee inter- ests or easements), or modification of airport habitat. The second is acquisition of bird hazard reduction equipment related to bird patrols and actions to reduce wildlife hazards on or adjacent to an airport. The AIP Handbook specifies that AIP funds may not be used for airport expenses associated with airport operations ve- hicles used for wildlife control and with purchase of expendable items (e.g., pyrotechnic devices and shotgun shells) used for wildlife control. Wetlands restoration, creation, enhancement, or ex- change projects may provide a “separate justification related to wildlife hazards” for purposes of eligibility for AIP grant funding.71 The AIP Handbook specifies that an airport sponsor may not implement wetland wildlife attractions related to a mitigation project unless the project is located at a site “remote from existing or 66 See FAA Overview: What is AIP? Web site, http://www.faa.gov/airports/aip/overview/#eligible_projects. 67 FAA Order 5100.38C–Airport Improvement Program Handbook (June 28, 2005) (AIPH), accessable at http://www.faa.gov/airports/aip/aip_handbook/. See ch. 5, Air- field Construction and Equipment Projects, http://www.faa. gov/airports/resources/publications/orders/media/aip_5100_38/a ip_5100_38c_part2.pdf. 68 AIPH ¶ 547. 69 FAA Advisory Circular 150/5200-33B: Hazardous Wildlife Attractants on or Near Airports (Aug. 28, 2007), http://www.faa.gov/documentLibrary/media/advisory_circular/1 50-5200-33B/150_5200_33b.pdf. 70 AIPH ¶ 584. 71 AIPH ¶ 586.

12 planned airport development” as defined in FAA Advi- sory Circular 150/5200-33B—Hazardous Wildlife At- tractants on or near Airports (August 28, 2007). Airports Capital Improvement Plan. The FAA has developed an internal policy document, the national Airports Capital Improvement Plan (ACIP),72 as the primary agency planning tool to identify and prioritize critical airport development and capital needs and po- tential funding of development projects. The ACIP is used by the FAA as a basis for distribution of AIP grant funds. The ACIP is developed by the FAA’s AIP Branch based on nine regional capital improvement plans, which are developed with information provided by indi- vidual airports or state airport planning agencies on anticipated development needs. During the 2011 fiscal year, the FAA awarded 909 grants worth approximately $1.3 billion. Of these grants, 17 grants were awarded (in whole or in part) for Wildlife Hazard Assessments at airports. The FAA also has issued an order prescribing the FAA’s development of the ACIP-FAA Order 5100.39A— Airports Capital Improvement Plan Order (August 22, 2000) (ACIP Order).73 The ACIP Order describes the National Priority System (NPS), a numerical system ranging between 0 and 100 that is used by the FAA as a tool for prioritizing funding of airport development. The NPS equation has several components, including a “Purpose” identifier incorporating safety and security items and airport hazard removal or marking. In addi- tion to the numerical NPS evaluation, the ACIP Order provides for consideration of factors such as environ- mental issues and impact on airport safety and per- formance. The ACIP Order further describes a 10-step process for ACIP development. FAA Grant Assurances—Purpose: General Assurances The FAA requires compliance regarding an airport sponsor’s performance in connection with grant agreements for airport development, planning, and noise compatibility program grants. The written grant assurances are obligations that may apply to funding available through the AIP and other programs, such as the Federal Aid to Airports Program and the Airport Development Aid Program.74 Federal law provides that the FAA may approve a grant application for an airport development project only if the airport project grant recipient provides to the FAA the 21 general written assurances associated with airport operations specified in the statute.75 The assurances are incorporated within an agreement submitted with the grant application and become part of the final grant offer when approved.76 72 See http://www.faa.gov/airports/aip/acip/. 73 http://www.faa.gov/airports/resources/publications/ orders/media/aip_5100_39a.pdf. 74 http://www.faa.gov/airports/aip/grant_assurances/media /airport_sponsor_assurances_2012.pdf. 75 49 U.S.C. § 47107. 76 49 U.S.C. § 47105. Federal law specifies that the application of an airport sponsor, or of a state applying for grant funding on behalf of one or more airports, must include the agreement ensuring compliance with the appropriate grant assurances.77 The duration of the grant assurances may vary depending on the type of grant recipient or facility being developed with the grant funding. The general statutory written assurances include assumption of obligations concerning airport access, operations, airport use charges and leasing, government use of airport facilities developed with federal funding, airport layout plan maintenance and approval, and airport operator financial and operational reporting. The general written assurances also include safety assurances, providing that the airport sponsor will take appropriate action to 1) ensure the airport terminal airspace will be cleared and protected by mitigating existing airport hazards and preventing future hazards; and 2) restrict, to the extent reasonable, the use of land next to or near the airport to uses that are compatible with normal airport operations.78 Federal law also requires the airport sponsor to provide written assurances concerning airport revenue use, land acquisition, and maintaining opportunities for small business concerns.79 The FAA is required to determine that the written assurances will be satisfied before approving a project grant application. The FAA is directed by the statute to prescribe requirements for airport sponsors that the agency determines are necessary to ensure compliance with the written assurances requirements. The statute also provides the process for the FAA to modify written assurances applicable to an airport sponsor.80 The writ- ten assurances incorporate compliance with uniform administrative requirements for issuance of grants and cooperative agreements to state and local govern- ments.81 The FAA has issued the required general written as- surances for performance of grant agreements that are required for performance of grant agreements for air- port development, airport planning, and noise compati- bility program grants. The FAA has outlined the writ- ten assurances that apply to airport sponsors, nonairport sponsors undertaking noise compatibility program projects, and planning agency sponsors. The following written assurances address wildlife hazards and land-use compatibility on or near airport property. Airport Sponsors. The FAA requires airport sponsors to provide written assurances that the sponsor will comply with all applicable federal laws, regulations, executive orders, policies, guidelines, and requirements related to the application, acceptance, and use of federal funds. The federal laws identified regarding this writ- 77 Id. 78 49 U.S.C. § 47107(a). 79 49 U.S.C. § 47107(b)-(e). 80 49 U.S.C. § 47107(g)-(h). 81 49 C.F.R. Pt. 18.

13 ten assurance include the National Environmental Pol- icy Act, 42 U.S.C. 4321 et seq. (Sponsor Certification Section C(1)—General Federal Requirements). The FAA also specifies general written assurances concerning mitigation of all airport hazards (including wildlife hazards) (Sponsor Certification Section C(21)): Hazard Removal and Mitigation. It will take appropriate action to assure that such terminal airspace as is re- quired to protect instrument and visual operations to the airport (including established minimum flight altitudes) will be adequately cleared and protected by removing, lowering, relocating, marking, or lighting or otherwise mitigating existing airport hazards and by preventing the establishment or creation of future airport hazards. Nonairport Sponsors (Noise Compatibility). The FAA also requires assurances from non-airport sponsors, such as local governments, that are not airport owners or operators but are undertaking noise compatibility programs around airport property. Similar to the assurances required of airport sponsors, the FAA requires these nonairport sponsors to provide written assurances concerning compliance with all applicable federal laws, regulations, executive orders, policies, guidelines, and requirements related to the application, acceptance, and use of federal funds. The federal laws identified regarding this written assurance include the National Environmental Policy Act, 42 U.S.C. 4321 et seq. (Sponsor Certification Section C(1)—General Federal Requirements). Similar to airport sponsors, the nonairport sponsors must provide the FAA with general written assurances concerning airport hazard mitigation (Sponsor Certification Sections C(14)): Hazard Prevention. It will protect such terminal airspace as is required to protect instrument and visual operations to the airport (including established minimum flight alti- tudes) by preventing the establishment or creation of fu- ture airport hazards on property owned or controlled by it or over which it has land use jurisdiction. Planning Agency Sponsors. The FAA requires plan- ning agency sponsors to provide written assurances concerning compliance with all applicable federal laws, regulations, executive orders, policies, guidelines, and requirements related to the application, acceptance, and use of federal funds for the project. The written assurances for planning agency sponsors do not include specific provisions concerning hazard mitigation or air- port land-use compatibility. Assurances—Compatible Land Use Federal law authorizes grants for land-use compatibility plans and projects. The federal statute authorizes the USDOT (FAA) to award grants for development and implementation of land-use compatibility plans and for implementation of the land- use compatibility projects identified in those plans. The purpose of land-use compatibility projects eligible for funding is specific to those projects intended to make land surrounding airports (large hub and medium hub) compatible with aircraft operations.82 The statute specifies that a land-use compatibility grant may be awarded only upon a determination that the land-use plan or project meets the statutory requirements and that the airport operator has not submitted a noise compatibility plan or plan update within the preceding 10 years. Eligible grant applicants include state and local government agencies that: 1. Have the authority to plan and adopt land-use control measures, including zoning, in the planning area in and around a large or medium hub airport; 2. Enter into an agreement with the airport owner or operator that the development of the land-use compati- bility plan will be done cooperatively; and 3. Provide written assurance to the Secretary that it will achieve, to the maximum extent possible, compati- ble land uses consistent with federal land-use compati- bility criteria…and that those compatible land uses will be maintained.83 Federal law requires the recipient of a land-use com- patibility plan or project grant to provide written as- surances that the plan is “reasonably consistent” with reduction of existing noncompatible land uses and pre- vention of introduction of noncompatible land uses. The statute also requires assurances that the plan ad- dresses achievement and maintenance of compatible land uses through zoning, building codes, and other measures and that the plan has been approved by the airport owners and the state or local government. The FAA is required to adopt guidelines for award of land- use compatibility grants. Sponsors must provide assurances to take appropriate action to the “extent reasonable” to restrict land use adjacent to or in vicinity of an airport to activities and purposes compatible with “normal airport operations.” Appropriate action for a local government sponsor may include assurance regarding adoption of zoning laws and, for noise compatibility projects, assurance not to cause or allow any land-use change within its jurisdiction that will reduce airport land-use compatibility. Airport Sponsors. The FAA requires airport sponsors to provide written assurances that the sponsor will comply with all applicable federal laws, regulations, executive orders, policies, guidelines, and requirements related to the application, acceptance, and use of federal funds. The federal laws identified regarding this writ- ten assurance include the National Environmental Pol- icy Act of 1969, Pub. L. No. 91-190, 42 U.S.C. 4321 et seq. (1970) (Sponsor Certification Section C(1)—General Federal Requirements). The FAA also specifies airport sponsors must provide general written assurances con- cerning airport land-use compatibility and planning (Sponsor Certification Section C(21)): “Compatible Land Use. It will take appropriate action, to the extent rea- 82 49 U.S.C. § 47141. 83 49 U.S.C. § 47141(b).

14 sonable, including the adoption of zoning laws, to re- strict the use of land adjacent to or in the immediate vicinity of the airport to activities and purposes com- patible with normal airport operations, including land- ing and takeoff of aircraft.” Non-Airport Sponsors (Noise Compatibility). The FAA requires from the non-airport sponsor undertaking noise compatibility program projects general written assurances concerning land-use compatibility. As ex- plained above, the assurance may include action such as adoption of appropriate zoning laws (Sponsor Certifi- cation Section C(15)): “Compatible Land Use. It will take appropriate action, including the adoption of zon- ing laws, to the extent reasonable, to restrict the use of land adjacent to or in the immediate vicinity of the air- port to activities and purposes compatible with normal airport operations, including landing and takeoff of air- craft.” Assurances—Consistency with Local Plans The FAA requires grant recipients to provide written assurances that the project (at time of application) is reasonably consistent with plans of public agencies in the planning area. The required assurance is the same for airport sponsors and nonairport sponsors conducting noise-compatibility projects: “Consistency with Local Plans. The project is reasonably consistent with plans (existing at the time of submission of this application) of public agencies that are authorized by the State in which the project is located to plan for the development of the area surrounding the airport.” (Airport Sponsors—Sponsor Certification Section C(21) and Non-Airport Sponsors (Noise Compatibility)—Sponsor Certification Section C(6)). The required assurance for planning agency sponsors is: “Consistency with Local Plans. The project is reasonably consistent with plans (existing at the time of submission of this application) of public agencies in the planning area” (Sponsor Certification Section C(6)). Assurances—Airport Layout Plan The FAA specifies an airport sponsor must provide general written assurances concerning development and maintenance of an airport layout plan (Sponsor Certification Section C(29)). The required assurance for an airport sponsor specifies that the airport sponsor will keep up to date its airport layout plan, depicting the following: • Boundaries of the airport and additions and boundaries of off-site areas owned or controlled by the airport sponsor for airport purposes. • Location and nature of all existing and proposed facilities and structures, including proposed extensions and reductions. • Location of existing and proposed nonaviation ar- eas and existing improvements. The required assurance also recognizes the require- ment for FAA approval of initial and revised airport layout plans and confirms that the airport operator will not make or permit any changes to the facilities that are inconsistent with the approved plan and that may adversely affect the airport’s safety, utility, or effi- ciency. The required assurance also recognizes the ac- tions the FAA may prescribe if changes to the airport layout plan are determined to adversely affect the safety, utility, or efficiency of the airport: If a change or alteration in the airport or the facilities is made which the Secretary determines adversely affects the safety, utility, or efficiency of any federally owned, leased, or funded property on or off the airport and which is not in conformity with the airport layout plan as ap- proved by the Secretary, the owner or operator will, if re- quested, by the Secretary (1) eliminate such adverse ef- fect in a manner approved by the Secretary; or (2) bear all costs of relocating such property (or replacement thereof) to a site acceptable to the Secretary and all costs of re- storing such property (or replacement thereof) to the level of safety, utility, efficiency, and cost of operation existing before the unapproved change in the airport or its facili- ties.84 III. WILDLIFE HAZARD ASSESSMENT Duty to Address Wildlife Hazards Responsible Agencies/Divisions Federal Aviation Administration. The FAA is di- rected by federal law to develop policy and plans for airspace use and to adopt regulations designed to en- sure aircraft safety and efficient use of airspace. Among other elements, the FARs must provide measures to prevent collisions between aircraft and other vehicles or objects and for protection of individuals and property on the ground.85 The FAA also is required by federal law to promote safety in civil aircraft by establishing mini- mum safety standards for airport operators, air carri- ers, and aircraft (e.g., design, performance, operations, and inspection).86 Federal law specifies that the FAA must meet its federal requirements “in a way that best tends to reduce or eliminate the possibility or recur- rence of accidents” in air transportation.87 Among other requirements, the FARs require air- ports issued operating certificates under 14 C.F.R. Part 139 with an identified wildlife hazard to develop and implement a Wildlife Hazard Management Plan. This plan is designed to address the public safety threat caused by aircraft-wildlife collisions by establishing methods and procedures to manage and control wildlife. The FAA regulates certificated airports through its Airport Safety and Operations Division, which governs airport safety and certification; promotion of emergency operations, emergency management planning, and 84 49 U.S.C. § 47107(a)(16). 85 49 U.S.C. § 40103. 86 49 U.S.C. § 44701. 87 49 U.S.C. § 44701.

15 damage control at civil airports; and federal activities at airports and their restoration after attack or a natural disaster. The Airport Safety and Operations Division also is responsible for airport operations and safety practices, which include aircraft rescue, aircraft fire- fighting, and mitigation of wildlife hazards. U.S. Department of Agriculture. Federal law directs the USDA to manage and control wildlife injurious to human health and safety, agricultural interests, or other wildlife. The USDA is authorized by federal law to work cooperatively with states, other public agencies, and private agencies and organizations to control nuisance mammals and birds. This authority includes controlling wildlife hazards to aviation.88 Animal and Plant Health Inspection Service/Wildlife Services. The USDA provides research and technical assistance to the FAA and airport operators to control wildlife hazards and reduce the threat of wildlife- aircraft collisions. The USDA’s WS is the division within USDA that provides wildlife damage management assistance to reduce and respond to wildlife hazards at airports.89 The WS provides assistance to airport operators by conducting Wildlife Hazard Assessments and assists the FAA in reviewing and evaluating airport operators’ Wildlife Hazard Management Plans. The USDA reports that WS staff provide wildlife hazard assistance (technical and management) at 822 domestic and foreign airports annually.90 88 7 U.S.C. § 426, et seq. 89 See http://www.aphis.usda.gov/wildlife_damage/airline_ safety/airport_hazards.shtml. 90 USDA-APHIS–Wildlife Damage Management: Airport Wildlife Hazards Program–Number of Airports Assisted Annu- ally, http://www.aphis.usda.gov/wildlife_damage/airline_ safety/airports_assisted.shtml.

16 Figure 1. Reprinted from: USDA-APHIS–Wildlife Damage Management: Airport Wildlife Hazards Program–Number of Airports Assisted Annually, available on the USDA Web site at http://www.aphis.usda.gov/wildlife_damage/airline_safety/airports_assisted.shtml. National Wildlife Research Center. The USDA’s National Wildlife Research Center (NWRC) provides research to the FAA and airport operators regarding wildlife hazard mitigation and strategies and management tools to reduce wildlife hazards at airports. NWRC research topics and studies include the following: • Wildlife Habitat Management and Other Land-Use Studies—Vegetation types and vegetation management practices to reduce wildlife attractants on airport prop- erty; wildlife use of agricultural crops on or near air- ports; and management of stormwater runoff on and near airports. • Bird Movements on and near Airports— Relationship of bird movements to aircraft flight pat- terns and airport locations and movement patterns of specific bird species (bald eagles, osprey, red-tailed hawks, and vultures) in the vicinity of commercial and military airports. • Exploiting Wildlife Anti-Predation Behaviors and Visual Ecology to Reduce Hazards to Aviation—Factors that control wildlife responses to predation events and human activities, including aviation, and animal detec- tion and avoidance behavior regarding vehicle ap- proach. • Evaluating Avian Radar—Effectiveness of avian radar systems at airports to detect birds at or near air- ports with evaluation of range, altitude, target size, and weather effects on radar systems’ accuracy and detec- tion capabilities.91 91 National Wildlife Research Center, Reducing Wildlife Hazards to Aircraft, Factsheet (FY 2010), available at Relationship Between FAA and Wildlife Services. The FAA and WS work cooperatively to evaluate potential wildlife threats to airport operations and to assess data and information concerning aircraft– wildlife collisions. FAA guidance concerning this relationship describes the role of the FAA in regulating airport operator certification and in ensuring compliance with the requirement for certificated airports to develop and implement a Wildlife Hazard Management Plan.92 This FAA guidance also explains the role of WS in conducting Wildlife Hazard Assessments for airport operators and in providing assistance to FAA in reviewing and contributing to Wildlife Hazard Management Plans being developed by airport operators.93 The FAA and WS have entered into a memorandum of understanding (FAA-WS MOU)94 that establishes the agencies’ collaborative approach to resolving and deter- ring wildlife hazards to aviation. The FAA-WS MOU recognizes the expertise of WS in assessing wildlife http://www.aphis.usda.gov/wildlife_damage/nwrc/research/ aviation/content/WS_Research_aviation-1.pdf. 92 FAA CertAlert 04-09–Relationship between FAA and WS (Aug. 30, 2004), available as a download at www.faa.gov/airports/airport_safety/certalerts/media/cert0409. rtf. 93 Id. 94 Memorandum of Understanding between the United States Department of Transportation Federal Aviation Ad- ministration and the United States Department of Agriculture Animal and Plant Health Inspection Service Wildlife Services– MOU Number 12-34-71-0003-MOU (June 27, 2005), available at http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article= 1015&context=birdstrikeother. (Last visited Feb. 15, 2013).

17 hazards to aviation on and near airports and in training airport personnel to reduce these hazards. The FAA-WS MOU also specifies either the FAA or a certificated air- port operator may seek WS technical assistance regard- ing response to or reduction of wildlife hazards— assistance that may include site visits, wildlife hazards assessments, support for development of Wildlife Haz- ard Management Plans, wildlife species identification training, control device training, and assistance with management of hazardous wildlife and habitats. In ad- dition, the FAA-WS MOU includes the agreement that WS personnel will advise certificated airport operators to secure any permits or licenses required to control wildlife. The FAA has entered into wildlife hazard manage- ment agreements with other agencies and organiza- tions. The FAA and the National Association of State Aviation Officials (NASAO) entered into an MOU to foster cooperation between WS and NASAO to reduce wildlife hazards at airports in every state. This FAA- NASAO MOU was first established in 199695 and has been supplemented in recent years to address issues such as land-use policy coordination, enhancement of state block grants to the AIP, navigational aids, and airport pavement management. The 2010 supplement to the FAA-NASAO MOU96 specifically addresses coop- eration to enhance reporting of wildlife strikes. The MOU amendment seeks to improve wildlife strike data gathering processes through NASAO’s facilitation to disseminate FAA educational information and involve state aviation directors and others within the aviation community in this effort. The FAA also has established interagency agree- ments to address wildlife hazards at certain military facilities. The FAA entered into a Memorandum of Agreement (MOA) to address aircraft– wildlife conflicts at military installations operated by the U.S. Air Force and U.S. Army.97 Three federal resource agencies also are parties to this agreement: USDA, U.S. Fish and Wildlife Service (USFWS), and the U.S. Environmental Protection Agency (EPA). In addition, the FAA entered into a regional MOU with several federal military and 95 See NASAO/FAA Memorandum of Understanding, Coop- erative Partnership Between the FAA and the State Agencies For Reducing Community Concerns Related To Aircraft Noise 1 (Feb. 2000), available at http://www.faa.gov/about/office_org /headquarters_offices/apl/noise_emissions/planning_toolkit/ media/V.F.pdf. 96Attachment to Memorandum of Understanding Between the Federal Aviation Administration and the National Associa- tion of State Aviation Officials: 2010 Initiative–Wildlife Haz- ards (August 24, 2011), http://www.nasao.org/LinkClick. aspx?fileticket=0h0D9Oe24dA%3d&tabid=68. 97 Memorandum of Agreement Between the Federal Avia- tion Administration, the U.S. Air Force, the U.S. Army, the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, and the U.S. Department of Agriculture to Address Aircraft-Wildlife Strikes (July 29, 2003). resource agencies to address aircraft–wildlife strikes in the southeastern United States. 98 Specific Responsibilities to Address Wildlife Hazards. Certificated airports are obligated to address wildlife hazards. The FARs require airport operators issued an Airport Operating Certificate by the FAA to take “immediate action to alleviate wildlife hazards” that may affect airport operations when those hazards are detected.99 The FARs define “wildlife hazard” as a “potential for a damaging aircraft collision with wildlife on or near an airport.” This term is defined to specifically include feral animals and domestic animals not within the control of their owners.100 The FARs identify actions a certificated airport op- erator must take to address wildlife hazards. Among these are obligations to: • Conduct a Wildlife Hazard Assessment when speci- fied events occur (see Section III(B)(1)). • Prepare a Wildlife Hazard Assessment report with required components (see Section III(B)(2)). • Obtain FAA approval of the wildlife hazard as- sessment (see Section III(B)(3)). • Prepare a Wildlife Hazard Management Plan with specified required elements if the FAA determines the plan is necessary after review of the Wildlife Hazard Assessment (see Section IV). • Obtain FAA approval of the Wildlife Hazard Man- agement Plan (see Section IV). The FARs also require airport operators to properly train and qualify the airport personnel responsible for actions to address wildlife hazards.101 Hazardous Wildlife Attractants. In addition to the regulatory requirements, the FAA has issued orders, directives, and guidance to describe and explain the threat to airport operations associated with wildlife hazard attractants. These orders, directives, and guid- ance also describe airport operators’ obligations to ad- dress wildlife hazards and ensure that airport person- nel are properly trained and qualified to take action to address wildlife hazards when necessary.102 The FAA 98 Regional Memorandum of Understanding (RMOU) be- tween the Federal Aviation Administration, U.S. Air Force, U.S. Army Corps of Engineers, U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service (FWS), U.S. Depart- ment of Agriculture APHIS Wildlife Services to Address Air- craft-Wildlife Strikes in the Southern Region of the United States, http://www.faa.gov/airports/southern/airport_safety/ media/so_wildlife_strikes_mou.pdf. 99 14 C.F.R. § 139.337(a). 100 14 C.F.R. § 139.5. 101 14 C.F.R. §§ 139.337 and 139.303. 102 Some of the FAA orders and directives referenced in FAA documents have been canceled or superseded. For example, the FAA Order 5200.3D–Wildlife Hazard Detection and Control Procedures (Feb. 23, 1989) was canceled effective Jan. 21, 2011. In addition, the FAA CertAlert 01-01–Deer Aircraft Haz- ard was canceled and superseded by FAA CertAlert 04-16– Deer Hazard to Aircraft and Deer Fencing (Dec. 13, 2004).

18 Advisory Circular Series 150, concerning airport opera- tions, provides recommendations concerning a variety of operational considerations (e.g., construction stan- dards and safety practices, aircraft rescue and fire fighting, and airport lighting), and includes an Advisory Circular that specifically addresses the need for dis- tance between airport operational activities and land uses that may attract hazardous wildlife.103 This FAA Advisory Circular identifies land uses (e.g., wetlands, municipal solid waste landfills (MSWLFs), stormwater management facilities, golf courses, and agricultural activities) determined by the FAA to be incompatible with safe airport operations because of their potential to attract hazardous wildlife on or near airports.104 The Advisory Circular specifies the minimum separation distance between these land uses and 1) the air operations area, or 2) new airport development projects planned to accommodate aircraft movement.105 The minimum recommended separation criteria are as follows: • 5,000 ft between the air operations area and the hazardous wildlife attractant for airports serving pis- ton-powered aircraft. • 10,000 ft between the air operations area and the hazardous wildlife attractant for airports serving tur- bine-powered aircraft. • Five statute mi106 between the air operations area and the hazardous wildlife attractant for all airports when the attractant could cause hazardous wildlife to move into or across the airport’s approach or departure airspace. This Advisory Circular states that the minimum separation criteria and other specified standards and practices may be used by certificated airport operators to comply with the FAA’s regulatory wildlife manage- ment requirements and must be used by those airport operators who have received federal grant-in-aid assis- tance. Wildlife Strike Prevention. The FAA has issued guidance concerning the danger to airport operations created by deer within the aircraft movement areas. This guidance provides recommendations regarding the fencing types, installation, and maintenance to prevent deer from entering aircraft movement areas.107 Wildlife Hazard Assessments. The major FAA direc- tives and guidance concerning the airport operators’ obligations to conduct Wildlife Hazard Assessments and 103 FAA Advisory Circular No. 150/5200-33B–Hazardous Wildlife Attractants On or Near Airports (Aug. 28, 2007), http://www.faa.gov/documentLibrary/media/advisory_circular/1 50-5200-33B/150_5200_33b.pdf. 104 Id. 105 Id. 106 A statute mile constitutes 5,280 ft or 1,760 yds. 107 FAA CertAlert 04-16–Deer Hazard to Aircraft and Deer Fencing (Dec. 13, 2004), http://webcache.googleuser content.com/search?q=cache:bR6qlrmu_vEJ:www.faa.gov/airp. prepare Wildlife Hazard Assessment reports consistent with the FARs requirements are summarized below. • FAA Advisory Circular No. 150/5200-36A— Qualifications for Wildlife Biologist Conducting Wildlife Hazard Assessments and Training Curriculums for Airport Personnel Involved in Controlling Wildlife Haz- ards on Airports (January 31, 2012):108 Specifies the minimum requirements for the initial and recurring wildlife hazard management curriculum provided to airport personnel involved in implementing an FAA- approved Wildlife Hazard Management Plan. Identifies the qualifications for wildlife biologists conducting Wildlife Hazard Assessments for certificated airports. • FAA CertAlert 09-10—Wildlife Hazard Assess- ments in Accordance with Part 139 Requirements (June 11, 2009): 109 Describes the requirements in 14 C.F.R. 139.337(b) to conduct a Wildlife Hazard Assessment when a triggering event (as specified in the FAA regu- lations) occurs. Specifies the content of the assessment and qualifications for the person conducting the as- sessment and the required content of the assessment report. Identifies the FAA concern that airport opera- tors that have had triggering events have not conducted a Wildlife Hazard Assessment as required by the FAA regulations. • FAA CertAlert 04-09—Relationship Between FAA and WS (August 30, 2004): 110 Identifies the roles and responsibilities of the FAA and WS concerning wildlife hazards on or near airports. Describes the FAA’s role in airport operator certification, the requirement for certi- ficated airports to develop and implement a Wildlife Hazard Management Plan, and the WS role in conduct- ing Wildlife Hazard Assessments. Describes the MOU between the FAA and WS (No. 12-4-71-0003-MOU), which establishes a cooperative agency relationship for resolving wildlife hazards to aviation. • FAA CertAlert 97-09—Wildlife Hazard Manage- ment Plan Outline (November 17, 1997): 111 Describes the Wildlife Hazard Assessment’s purpose as the mechanism to provide an ecological study to provide the scientific basis for Wildlife Hazard Management Plan development, implementation, and revision. Explains the extent to which the Wildlife Hazard Assessment content may be used to develop the Wildlife Hazard Management Plan. Wildlife Hazard Response. The FARs require certifi- cated airport operators to take “immediate action to alleviate wildlife hazards” when they are detected.112 The FARs define “wildlife hazard” based on the poten- 108 Available at http://www.faa.gov/regulations_policies/ advisory_circulars/index.cfm/go/document.information/ documentID/1019776. 109 http://www.faa.gov/airports/airport_safety/certalerts/ media/cert0910.pdf. 110 Available by locating number at http://www.faa.gov/ airports/airport_safety/certalerts/. 111 Id. 112 14 C.F.R. § 139.337(a).

19 tial for a damaging aircraft wildlife collision on or near an airport.113 The FARs also require the actions taken by the airport operator to reduce wildlife hazards to be in accordance with the airport operator’s FAA-approved Airport Certification Manual.114 Wildlife Strike Reporting. The FAA has established a program for data collection and research concerning the number and types of aircraft wildlife strikes and the species involved in collisions. FAA Advisory Circular No. 150/5200-32A—Reporting Wildlife Aircraft Strikes (December 22, 2004) describes the process for airport operators and others to report aircraft wildlife strikes to the FAA Bird/Other Wildlife Strike Reporting system.115 This Advisory Circular and FAA CertAlert No. 02-06— Access to the National Wildlife Aircraft Strike Database (October 1, 2003) describe the process for reporting an aircraft wildlife strike and provide instructions for air- port operators, airline operators, and FAA airport certi- fication safety inspectors to access the information in the National Wildlife Strike Database and report a wildlife strike.116 FAA Advisory Circular No. 150/5200-32A empha- sizes the importance of the information provided by aircraft wildlife collision reports that are submitted to the National Wildlife Aircraft Strike Database and de- scribes the use of information submitted to the data- base. The FAA reported receiving 21,489 strike reports during the 2008 to 2010 period: 7,545 strikes in 2008; 9,484 in 2009; and 4,460 through July 2010. As of April 2009, the FAA has made all of the information in the National Wildlife Strike Database available to the pub- lic.117 Wildlife Remains. FAA has issued guidelines con- cerning submission of wildlife remains to provide in- formation on the types of species involved in wildlife strikes. This FAA guidance specifies the process for aircraft operators, airport operating and maintenance inspectors, and foreign air carriers to collect and submit feather or other bird/wildlife remains to the feather identification lab at the Smithsonian Institution, Mu- seum of Natural History.118 The FAA guidance also de- scribes the importance of identification research and the development of a comprehensive database through 113 14 C.F.R. § 139.5. 114 14 C.F.R. § 139.337(a). 115 Available by number at http://www.faa.gov/regulations_ policies/advisory_circulars/index.cfm/go/document.list/ parentTopicID/11/display/all/changeNumber/0/currentPage /7/sortResults/false/sortColumn/dateIssued/sortOrder/DESC. 116 The form is on the FAA Web site at http://www.faa.gov/documentLibrary/media/form/faa5200- 7.pdf. The wildlife strike report may be submitted electroni- cally through the FAA Wildlife Strike Reporting Web site at http://wildlife-mitigation.tc.faa.gov/wildlife/strikenew.aspx. 117 See http://www.faa.gov/news/fact_sheets/news_story. cfm?newsId=12478. 118 FAA CertAlert 03-03; Guidelines for Submitting Bird Strike Feather Remains for Identification (Aug. 29, 2003), available by number at http://www.faa.gov/airports/airport_ safety/certalerts/. wildlife remains submissions to improve understanding and prevention of bird-aircraft strike hazards. Wildlife Hazard Assessment Requirement to Conduct Wildlife Hazard Assess- ment. The FAA prescribes the requirements for and content of a Wildlife Hazard Assessment. FAA guidance describes the Wildlife Hazard Assessment as an ecologi- cal study conducted by a qualified wildlife damage management biologist to evaluate potential wildlife threats to aircraft operations.119 The FARs specify the circumstances in which an airport operator is required to conduct a Wildlife Hazard Assessment and the re- quired content of the assessment. In addition, the FARs require the airport operator to submit the Wildlife Haz- ard Assessment for FAA review and approval.120 Based on its review of the Wildlife Hazard Assess- ment, the FAA may require the airport operator to take specific actions to address issues identified in the as- sessment. Among other actions, the FAA may direct the airport operator to formulate and implement a Wildlife Hazard Management Plan.121 FAA CertAlert 97-09 specifies that the Wildlife Hazard Assessment serves as the scientific basis for an airport operator to develop, implement, and revise a Wildlife Hazard Management Plan. Preparation, approval, and implementation of the Wildlife Hazard Management Plan are described in Section IV of this digest. The FAA has identified certain events indicating a potential wildlife hazard on airport property that will require the preparation of a Wildlife Hazard Assess- ment. When any of the four “triggering” events specified in the FARs occur, the airport operator is required to conduct a Wildlife Hazard Assessment in accordance with regulatory requirements. The required contents of the Wildlife Hazard Assessment are specified in FAA regulations.122 A certificated airport operator is required to conduct a Wildlife Hazard Assessment when any of four events occur: • An air carrier aircraft experiences multiple wildlife strikes. • An air carrier aircraft experiences “substantial damage” from striking wildlife. • An air carrier aircraft experiences an engine inges- tion of wildlife. • Wildlife of a size, or in numbers, capable of causing one of the three events above is observed to have access to any airport flight pattern or aircraft movement area.123 119 FAA CertAlert 97-09–Wildlife Hazard Management Plan Outline (Nov. 17, 1997), available by number at http://www.faa.gov/airports/airport_safety/certalerts/. 120 14 C.F.R. § 139.337. 121 Id. 122 Id. 123 14 C.F.R. § 139.337(b)(1)-(4).

20 The term “substantial damage” is defined in the FARs as “damage or structural failure incurred by an aircraft that adversely affects the [aircraft’s] structural strength, performance, or flight characteristics and that would normally require major repair or replacement of the affected component.” In 2009 the FAA issued an advisory concerning air- port operator’s compliance with the Wildlife Hazard Assessment requirement. FAA CertAlert 09-10— Wildlife Hazard Assessments in Accordance with Part 139 Requirements (June 11, 2009)124 cautioned airport operators about the risk of aircraft-wildlife strikes be- cause of increased populations of the wildlife species commonly involved in aircraft strikes and increased commercial air traffic. The FAA advisory stated the FAA had reviewed the National Wildlife Strike Data- base and was concerned that airport operators that had experienced triggering events had not initiated a Wild- life Hazard Assessment as required by the FARs. The FAA advisory reminded these airport operators of the regulatory obligation to initiate a Wildlife Hazard As- sessment under such circumstances and encouraged those operators who had not experienced a triggering event to conduct an assessment.125 Preparation of Wildlife Hazard Assessment. The FAA has specified by regulation the requirements for prepa- ration of a Wildlife Hazard Assessment.126 FAA (CertAlert 97-09) describes the ecological study re- flected in the assessment as the “scientific basis” for an airport operator’s development of a Wildlife Hazard Management Plan if one is required. According to the FARs, the Wildlife Hazard Assessment must be con- ducted by a wildlife damage management biologist whose qualifications include professional training or experience in airport wildlife hazard management.127 Qualifications. In Advisory Circular 150/5200-36A— Qualifications for Wildlife Biologist Conducting Wildlife Hazard Assessments and Training Curriculums for Airport Personnel Involved in Controlling Wildlife Haz- ards on Airports (January 31, 2012)), the FAA further prescribes the qualifications of a “qualified airport wild- life biologist” satisfying the FARs’ requirements. These requirements include academic coursework, specific and continuing training in airport wildlife hazard manage- ment, and wildlife hazard assessment experience. FAA CertAlert 97-09 states the biologist’s primary responsi- bilities in conducting the Wildlife Hazard Assessment are to: 124 Available by number at http://www.faa.gov/airports/ airport_safety/certalerts/. 125 14 C.F.R. § 139.377(b) requires that the certificate holder conduct a wildlife hazard assessment only where an air carrier aircraft experiences multiple wildlife strikes; substantial dam- age from striking wildlife; an engine ingestion of wildlife; or wildlife capable of causing such events are observed to have access to airport flight pattern or aircraft movement area. 126 14 C.F.R. § 139.337. 127 14 C.F.R. § 139.337(c) and f(7). • Provide information on the wildlife attractants that have been identified on or near the airport. • Identify wildlife management techniques. • Prioritize appropriate mitigation measures. • Recommend necessary equipment and supplies. • Identify training requirements for the airport per- sonnel who will implement the Wildlife Hazard Man- agement Plan. Components. The FARs identify the required content of a Wildlife Hazard Assessment. The assessment must identify the reason (events or circumstances) for requir- ing the assessment. The numbers, locations, local movements, and occurrences (daily and seasonal) of the wildlife observed during the assessment also must be included. The assessment must report the identification and location of on-airport and off-airport features at- tracting wildlife and a description of wildlife hazards to air carrier operations that were identified. Further, the Wildlife Hazard Assessment must include recommenda- tions to reduce the identified wildlife hazards.128 FAA Approval. The Wildlife Hazard Assessment must be approved by the FAA. The FARs require the airport operator to submit the completed assessment to the FAA for approval. The FAA review and approval of the assessment will include the agency’s determination whether the airport operator must develop a Wildlife Hazard Management Plan.129 In addition to the Wildlife Hazard Assessment itself, the FAA must consider the following factors in making this determination: • Recommended actions in the Wildlife Hazard As- sessment to reduce wildlife hazards. • Aeronautical activity at the airport, including air- craft frequency and size. • Views of the Airport Operating Certificate holder. • Views of the airport users. • Any other known factors known by the FAA con- cerning the wildlife hazard.130 If the FAA determines that a Wildlife Hazard Man- agement Plan is necessary, the airport operator is re- quired to initiate development of the plan consistent with the FARs.131 IV. WILDLIFE HAZARD MANAGEMENT This section and Sections V and VI describe federal and state law requirements and authorizations, includ- ing Wildlife Hazard Management Plans and protected species laws and regulations (e.g., Endangered Species Act, Bald and Golden Eagle Protection Act, Migratory Bird Treaty Act (MBTA), and state and federal laws regulating wildlife), relating to legally acceptable means airports can pursue to remove or discourage 128 14 C.F.R. § 139.337(c). 129 14 C.F.R. § 139.337(d). 130 Id. 131 14 C.F.R. § 139.337(e).

21 wildlife (including protected species) from runways, taxiways, and airspace necessary for takeoffs and land- ings. Section IV addresses Wildlife Hazard Manage- ment Plans. Duty to Prepare Wildlife Hazard Management Plan The FAA may require an airport operator to develop or revise a Wildlife Hazard Management Plan. Section III of this digest describes the requirement for an air- port operator to conduct a Wildlife Hazard Assessment when those events identified in the FARs that indicate a potential wildlife hazard occur on airport property. Section III also describes the specified content and the requirement for FAA approval of the Wildlife Hazard Assessment.132 The FAA review of the Wildlife Hazard Assessment includes the agency’s determination whether the airport operator will be required to develop a Wildlife Hazard Management Plan. In addition to the content of the Wildlife Hazard Assessment and its rec- ommendations for wildlife hazard reduction, the FAA considers several factors in making this determination. These factors include the airport’s aeronautical activity, views of both the certificated airport operator and the airport users, and other wildlife hazard factors known by the FAA. If the FAA determines a Wildlife Hazard Management Plan is necessary, the airport operator is required to initiate development of the plan consistent with the FARs.133 Required Elements The certificated airport operator is required to initi- ate development or revision of the airport’s Wildlife Hazard Management Plan when the FAA determines this action is necessary. The FARs specify the airport operator must use the Wildlife Hazard Assessment ap- proved by the FAA as the basis for development and implementation of the Wildlife Hazard Management Plan.134 Portions of the assessment may be incorporated into the Wildlife Hazard Management Plan, and the biologist who conducted the Wildlife Hazard Assess- ment may be asked to review the final draft of the plan. However, the development of the Wildlife Hazard Man- agement Plan is the responsibility of the airport opera- tor and not the biologist.135 The airport operator is directed by the FARs to include “measures to alleviate or eliminate wildlife hazards” to aircraft operations in the plan.136 The FARs also list the required Wildlife Hazard Management Plan elements, including: 132 14 C.F.R. § 139.337. 133 14 C.F.R. § 139.337(e). 134 14 C.F.R. § 139.337(e). 135 CertAlert 97-09: Wildlife Hazard Management Plan Out- line (Nov. 17, 1997), available at http://www.faa.gov/airports/airport_safety/certalerts/. 136 14 C.F.R. § 139.337(f). • Individuals with authority and responsibility for implementing each aspect of the plan. • Priority list and target dates for initiation and completion of wildlife population management, habitat modification, and land-use change actions identified in the Wildlife Hazard Assessment. • Federal, state, and local wildlife control permits. • Resources for plan implementation. • Aircraft operations procedures to manage wildlife hazards, including responsible personnel, aircraft movement area inspection procedures, wildlife hazard control measures, and communication procedures for wildlife hazard observation and control. • Procedures to review and evaluate the plan annu- ally or after one of the specified events that trigger the requirement to conduct a Wildlife Hazard Assessment. • Plan effectiveness in dealing with known wildlife hazards on and in the airport’s vicinity; • Wildlife hazard aspects that should be reevaluated. • Training program to provide airport personnel with the knowledge and skills needed to successfully carry out the Wildlife Hazard Management Plan. Each of these requirements will be described in this section. The Wildlife Hazard Management Plan must be submitted to the FAA for approval before it is imple- mented. Once approved, the plan may be incorporated into the airport operator’s Airport Certification Man- ual.137 Authorized/Responsible Individuals The Wildlife Hazard Management Plan must identify the individuals who are authorized and responsible to implement each component of the plan.138 FAA guidance describes the FARs’ Wildlife Hazard Management Plan requirements and specifies how those requirements may be satisfied. Regarding responsibility for plan implementation, the FAA guidance specifies that aspects of the plan activities may be assigned to airport departments, including airport operations, maintenance, security, planning, finance, and wildlife coordination or wildlife hazards. The FAA guidance also notes that wildlife law enforcement responsibilities may be addressed by federal wildlife resource agencies (USFWS), state wildlife resource agencies, and local law enforcement agencies.139 Priority Actions and Target Dates The Wildlife Hazard Management Plan must include a prioritized list of actions concerning wildlife population management, habitat modification, and land-use changes that were identified in the Wildlife Hazard Assessment. The plan also must include target dates for both initiation and completion of these 137 Id. 138 14 C.F.R. § 139.337(f)(1). 139 FAA CertAlert 97-09, available at http://www.faa.gov/airports/airport_safety/certalerts/.

22 actions.140 FAA guidance describes activities related to reducing wildlife aircraft strike potential associated with hazardous wildlife attractants identified in the Wildlife Hazard Assessment. The plan should include a history of work and the completed habitat modification and other projects addressing potential aircraft wildlife strikes. The FAA guidance identifies the area of concern for airport property as the aircraft operations area, airport structures, and the area within 2 and 5 mi of aircraft movement areas.141 According to the FAA guidance, priority habitat modification actions may include activities such as food/prey base management, trash and debris handling and storage, and species-specific management techniques (e.g., repelling, exclusion, and removal). Habitat modification actions also may include vegetation management (e.g., landscaping, agriculture); water management activities concerning areas such as wetlands, drainage, and detention ponds on airport property; buildings and structures; and airport construction.142 The plan also may address resource protection through wildlife exclusion and deterrence actions. Required Permits The Wildlife Hazard Management Plan must identify and include copies of the required federal, state, and local wildlife control permits for airport operations.143 FAA guidance notes that wildlife protection may be required under federal, state, and local laws and specifies that the Wildlife Hazard Management Plan should identify the types and legal status of protected species.144 In addition to wildlife management permits, the Wildlife Hazard Management Plan should identify any required federal, state, and local permits for pesticide use on airport property. Federal depredation permits may be required for actions affecting migratory birds under the Migratory Bird Treaty Act of 1918,145 and federal take permits may be required for actions affecting bald eagles under the Bald and Golden Eagle Protection Act of 1940.146 In addition, Federal Endangered Species Act of 1973 authorization,147 obtained through the Section 7 consultation process or Section 10 permitting process, may be required for actions that can result in the incidental take of federally listed species. Further, state permits may be required for actions that may result in take of state-protected species or that require removal of wildlife from airport property. 140 14 C.F.R. § 139.337(f)(2). 141 FAA CertAlert 97-09. 142 Id. 143 14 C.F.R. § 139.337(f)(3). 144 FAA CertAlert 97-09. 145 Codified at 16 U.S.C. §§ 703–712. 146 54 Stat. 250, codified at 16 U.S.C. § 668–668d. 147 Pub. L. No. 93-205, 87 Stat. 884, codified at 16 U.S.C. § 1531. Implementation Resources The FARs specify that the Wildlife Hazard Management Plan must identify the resources the airport operator will provide for plan implementation.148 FAA guidance describes the types of resources to be identified in the plan. The resources include wildlife patrol personnel, vehicles, equipment, and supplies; wildlife control equipment and supplies (e.g., radios, traps, shellcrackers); other personnel; and pesticides and pesticide application equipment.149 Operations Procedures The Wildlife Hazard Management Plan must specify the wildlife hazard management procedures associated with aircraft operations. At a minimum, the plan must: • Designate the personnel responsible for implementing the plan procedures. • Provide for physical inspections of aircraft movement areas and other areas critical for wildlife hazard management before aircraft operations begin. • Provide measures to control wildlife hazards. • Specify communication methods between personnel conducting wildlife control activities and between personnel observing wildlife hazards and the air traffic control tower.150 FAA guidance specifies that the responsible airport personnel in the Wildlife Hazard Management Plan may include wildlife patrol and coordination, operations, maintenance, security, and air traffic control. The plan may provide for physical inspections of areas such as runways, taxiways, ramps, and unmitigated hazardous wildlife attractants. The plan also may identify control measures, including repelling, capturing, and killing birds and mammals that create wildlife hazards. In addition, the plan may specify communication procedures, equipment, and training for communication between wildlife control personnel and between these personnel and the air traffic control tower.151 Evaluation The Wildlife Hazard Management Plan must include procedures for plan review and evaluation. The plan must provide for the airport operator to conduct an annual review. The plan also must provide for the airport operator to conduct a plan review when any of the four triggering events identified in the FAR Wildlife Hazard Assessment regulations occur.152 These events are: 148 14 C.F.R. § 139.337(f)(4). 149 FAA CertAlert 97-09. 150 14 C.F.R. § 139.337(f)(5). 151 FAA CertAlert 97-09. 152 14 C.F.R. § 139.337(f)(6).

23 • An air carrier aircraft experiences multiple wildlife strikes. • An air carrier aircraft experiences “substantial damage” from striking wildlife. • An air carrier aircraft experiences an engine inges- tion of wildlife. • Wildlife of a size, or in numbers, capable of causing one of the three events above is observed to have access to any airport flight pattern or aircraft movement area.153 FAA guidance states that the annual or event-based plan review should include representatives from the airport’s departments involved in wildlife hazard management as well as the wildlife damage management biologist who did the ecological study reflected in the original Wildlife Hazard Assessment.154 Effectiveness and Reevaluation The Wildlife Hazard Management Plan review must include consideration of the effectiveness and relevance of the plan. First, the review evaluates the plan’s effec- tiveness in addressing known wildlife hazards on air- port property and within the airport’s vicinity.155 The evaluation of plan effectiveness should include review of airport records and information from all airport de- partments, air traffic control, and the wildlife biolo- gist.156 Second, the plan evaluation considers whether the wildlife hazards described in the Wildlife Hazard Assessment should be reevaluated.157 FAA guidance provides that the review should consider records of wildlife seen on the airport operations area and records of requests for wildlife dispersal from the air traffic con- trol tower, pilots, and others.158 Training The Wildlife Hazard Management Plan must include provisions for training for the airport personnel responsible for implementing the plan. The training program must be conducted by a wildlife damage management biologist with the qualifications required for biologists authorized to conduct Wildlife Hazard Assessments. The training program must be designed to provide airport personnel with the knowledge and skills required to conduct the activities specified in the plan.159 The training should be provided to all relevant airport personnel and include, among other components, wildlife hazard awareness training and pesticide use training and certification.160 153 14 C.F.R. § 139.337(b)(1)-(4). 154 FAA CertAlert 97-09. 155 14 C.F.R. § 139.337(f)(6)(i). 156 FAA CertAlert 97-09. 157 14 C.F.R. § 139.337(f)(6)(ii). 158 FAA CertAlert 97-09. 159 14 C.F.R. § 139.337(f)(7). 160 FAA CertAlert 97-09. Advisory Circular No. 150/5200-36A—Qualifications for Wildlife Biologist Conducting Wildlife Hazard As- sessments and Training Curriculums for Airport Per- sonnel Involved in Controlling Wildlife Hazards on Air- ports (January 31, 2012)161 prescribes requirements for the qualified wildlife damage management biologist and also specifies the requirements for airport personnel wildlife management training programs. This Advisory Circular describes the FARs’ airport operational train- ing program requirements (e.g., airport marking and lighting, access and operation in movement areas, and communications) applicable to all airport personnel with access to aircraft movement areas and safety ar- eas.162 This Advisory Circular notes that the operational training program provisions incorporate wildlife man- agement training.163 Wildlife management training in- cludes both initial and recurring training programs for all airport personnel actively involved in implementing the airport’s Wildlife Hazard Management Plan. FAA Approval FAA approval of the airport operator’s Wildlife Hazard Management Plan is required. The FARs require the airport operator to develop a Wildlife Hazard Management Plan, or revise an existing plan, when determined necessary by the FAA. The FARs also require that the plan provide measures to “alleviate or eliminate wildlife hazards” to aircraft operations.164 When the FAA requires plan development or revision, the FAA Regional Coordinator will request information from the USFWS concerning the presence of species and critical habitat that are either listed or designated (or proposed for listing or designation) under the Federal Endangered Species Act (ESA) on or near the airport property. According to FAA Program Policy and Guidance Policy No. 78—Section 7, Consultation on Endangered or Threatened Species (June 21, 2004), the FAA Regional Coordinator will provide information from the USFWS regarding federally listed species or critical habitat for compliance with the ESA’s interagency consultation requirements.165 The airport operator’s final Wildlife Hazard Management Plan must be submitted to FAA for approval before being implemented by the airport operator. The approved plan may be incorporated into the airport operator’s certification manual.166 161 Available at http://www.faa.gov/regulations_policies/ advisory_circulars/index.cfm/go/document.list/ parentTopicID/11/display/all/changeNumber/0/currentPage /1/sortResults/false/sortColumn/dateIssued/sortOrder/DESC. 162 14 C.F.R. § 139.303. 163 14 C.F.R. § 139.337. 164 14 C.F.R. § 139.337(e). 165 16 U.S.C. § 1536. 166 14 C.F.R. § 139.337(e).

24 Wildlife Management Actions The FAA has identified numerous actions airport op- erators can take to remove or discourage wildlife from aircraft operations areas (e.g., runways and taxiways) and from the airspace required for aircraft departures and landings. Strategies airport operators use to elimi- nate or reduce the potential for wildlife hazards affect- ing airport operations include activities falling within the following general categories.167 Exclusion Airport operators may use physical barriers to keep wildlife populations that create a risk to airport opera- tions from areas on or near the airport property that could provide food, water, or shelter. Exclusion tech- niques may include fencing, culvert grids, pin wires on lights and signs, screening, netting, and grid wires. Airport operators also may cover retention ponds, place covers on drainage ditches, and install bird netting on hangars and buildings. Repellent and Harassment Actions Airport operators may use repellent and harassment equipment and techniques to temporarily exclude haz- ardous wildlife from areas of concern.168 These tech- niques include use of technical (e.g., audio and visual) and chemical repellents to affect the wildlife’s senses and create discomfort or fear for the wildlife. Repellent and harassment techniques may be used to make the area of concern unattractive to hazardous wildlife. Ex- amples include pyrotechnics, projectiles, lasers, human or animal (e.g., falcons and dogs) monitors and patrols, remote control planes, and effigies. Habitat Modification Airport operators may modify habitat to eliminate or reduce attraction of hazardous wildlife on or near the airport property. Techniques involve changing the envi- ronment to reduce hazardous wildlife’s access to food, water, and shelter on the airport property and in its vicinity. Examples include vegetation management, land-use changes, and elimination of wetlands on the airport property. Removal Airport operators may physically remove wildlife creating a threat to airport operations from the aircraft operations area and airport property. Exclusion tech- niques may include live capture, relocation, toxicant 167 See EDWARD C. CLEARY & ARCHIE DICKEY, GUIDEBOOK FOR ADDRESSING AIRCRAFT/WILDLIFE HAZARDS AT GENERAL AVIATION AIRPORTS (Transportation Research Board, Airport Cooperative Research Program Report 32, 2010). See also EDWARD C. CLEARY & RICHARD A. DOLBEER, FEDERAL AVIATION ADMINISTRATION, WILDLIFE HAZARD MANAGEMENT AT AIRPORTS: A MANUAL FOR AIRPORT PERSONNEL (2d ed., July 2005). 168 CLEARY & DOLBEER, supra note 167. use, and lethal removal of wildlife. Airport operators also may destroy or remove nests and eggs from airport property. Maintenance In addition to specific wildlife management tech- niques, airport operators may reduce the attraction of airport operational areas to hazardous wildlife through general maintenance activities. Examples include re- moving trash and litter, covering garbage cans and dumpsters, removing dead animals from the field, and prohibiting wildlife feeding. Evaluation and Response Airport operators may establish procedures and per- sonnel teams to develop and evaluate data and informa- tion related to the threats to aircraft operations associ- ated with hazardous wildlife on and near the airport property. Actions airport operators may take include implementing monitoring and observation programs, maintaining wildlife logs, reviewing and encouraging submission of aircraft wildlife strike reports, and estab- lishing wildlife hazard working groups. When war- ranted and/or required, airport operators also will initi- ate Wildlife Hazard Assessments and develop or revise Wildlife Hazard Management Plans. In addition to these wildlife management techniques, airport operators may use aircraft operational safety procedures to reduce or eliminate threats associated with hazardous wildlife. These procedures include no- tices to aircraft operators of potential wildlife hazards, delay or change of aircraft departures and landings, and change or closure of runways. The USDA has issued guidance concerning the assis- tance WS provides to airport operators and the FAA concerning wildlife hazards. The USDA guidance pro- vides guidelines for WS technical and direct control assistance to airport managers, state aviation agencies, FAA, and the Department of Defense regarding hazards caused by wildlife to airport safety. The guidance also describes assistance to federal and state agencies, air- port managers, and the aviation industry to reduce wildlife hazards according to the FAA-WS MOU. In addition, the USDA guidance explains that WS may conduct Wildlife Hazard Assessments, assist with Wild- life Hazard Management Plans, and provide technical assistance activities to minimize hazards caused by wildlife pursuant to cooperative agreements.169 The FARs direct airport operators to the FAA Advi- sory Circulars for wildlife hazard management methods and procedures determined acceptable by the FAA.170 The following is a description of the FAA Advisory Cir- culars and other FAA guidance that include acceptable methods and procedures for hazardous wildlife man- agement at airports. 169 USDA Directive 2.305 Wildlife Hazards to Aviation (Mar. 1, 2004), http://www.aphis.usda.gov/wildlife_damage/ directives/2.305_wildlife_hazards_to_aviation.pdf. 170 14 C.F.R. § 139.337(g).

25 FAA Order 7400.2J—Procedures for Handling Air- space Matters (February 9, 2012). This FAA Order de- scribes the requirements for providing notice of pro- posed construction or alteration within specified distances of aircraft landing and departure areas. The FAA Order also describes the process for FAA review of notices of proposed construction received by the agency, including consideration of potential airport hazards that may not be above ground level but may create an environment that attracts birds and other wildlife. FAA Advisory Circular No. 150/5200-33B— Hazardous Wildlife Attractants on or near Airports (August 28, 2007). This Advisory Circular ranks species that are determined to be hazardous to aircraft opera- tions and identifies the land uses (e.g., wetland mitiga- tion, waste disposal operations, and agricultural activi- ties) that may attract hazardous wildlife. The Advisory Circular also specifies minimum separation criteria between airport operations areas and those land uses. In addition, the Advisory Circular includes recommen- dations for new airport development and methods to address hazardous wildlife attractants associated with existing land uses within the specified separation crite- ria. Recommendations include coordination with a qualified wildlife damage management biologist, devel- opment of Wildlife Hazard Assessments and Wildlife Hazard Management Plans, and local coordination to support airport operators’ efforts to manage and control hazardous wildlife. FAA Advisory Circular 150/5200-34A—Construction or Establishment of Landfills near Public Airports (January 26, 2006). This Advisory Circular describes the required separation distance prescribed by federal law between a new municipal solid waste landfill and a public airport. The Advisory Circular references the FAA direction to airport operators concerning minimum separation distances for specified land uses and the process for requesting that the FAA grant an exemption from the statutory distance limitations for a new mu- nicipal solid waste landfill in the vicinity of the airport. FAA Advisory Circular 150/5200-32A—Reporting Wildlife Aircraft Strikes (December 22, 2004). This Ad- visory Circular describes the process for reporting a wildlife aircraft strike to the FAA and explains the pro- cedure for obtaining access to the National Wildlife Strike Database. FAA Advisory Circular No. 70-01—Outdoor Laser Operations (December 30, 2004). This Advisory Circular describes the requirement and process for airport operators to provide notice to the FAA of planned outdoor laser operations. The Advisory Circular also describes the actions the FAA will take in response to the notification. FAA CertAlert 06-07—Requests by State Wildlife Agencies to Facilitate and Encourage Habitat for State- Listed Threatened and Endangered Species and Species of Special Concern on Airports (November 21, 2006). This FAA guidance describes the procedures for airport operators and FAA certification inspectors to respond to requests by state wildlife agencies to facilitate and encourage habitats for state-listed threatened and endangered species or species of special concern occurring on airports that may pose a threat to aviation safety. The FAA guidance also discusses concerns regarding techniques that may increase wildlife hazards, be inconsistent with safe airport operations, and create a threat to aviation safety. FAA CertAlert No. 02-06—Access to the FAA National Wildlife Aircraft Strike Database (October 1, 2002). This FAA guidance describes aircraft wildlife strike information available in the FAA National Wildlife Aircraft Strike Database for airport operators, airline operators, and FAA airport certification safety inspectors and provides instruction on obtaining access to the information in the database. FAA CertAlert 04-16—Deer Hazard to Aircraft and Deer Fencing (December 13, 2004). This FAA guidance describes the dangers associated with deer in the aircraft movement areas and provides recommendations to airport operators regarding types of fencing to be used to exclude deer from these areas. The guidance also includes requirements for fencing installation and maintenance to prevent deer from entering aircraft movement areas. FAA CertAlert 04-09—Relationship between FAA and WS (August 30, 2004). This FAA guidance describes the FAA’s role in airport operator certification, the requirement for certificated airports to develop and implement a Wildlife Hazard Management Plan, and the WS role in conducting Wildlife Hazard Assessments. This guidance also describes the MOU between the FAA and WS (No. 12-4-71-0003-MOU), which establishes a cooperative agency relationship for resolving wildlife hazards to aviation. FAA CertAlert 98-05—Grasses Attractive to Hazardous Wildlife (September 21, 1998). This FAA guidance includes recommendations for airport operators to eliminate or reduce the use of specified grass species and other varieties of plants attractive to hazardous wildlife on airport property. This guidance provides guidelines for avoiding use of these species for planting disturbed areas or areas in need of re- vegetation and for maintenance of areas already planted with these species. FAA CertAlert 97-09—Wildlife Hazard Management Plan Outline (November 17, 1997). This FAA guidance describes the required content of a Wildlife Hazard Management Plan. FAA CertAlert 03-03—Guidelines for Submitting Bird Strike Feather Remains for Identification (August 29, 2003). This FAA guidance describes the process for collecting and submitting feather or other bird and wildlife remains for species identification. FAA Program Policy and Guidance Policy No. 82— Waste Disposal Facility Coordination (September 9, 2004). The policy identifies the applicable FAA Advisory Circulars for proposed landfill sitting in the vicinity of the airport property (FAA Advisory Circular 150/5200- 33B—Hazardous Wildlife Attractants on or near Airports (August 28, 2007) and FAA Advisory Circular

26 150/5200-34A—Construction or Establishment of Landfills near Public Airports (January 26, 2006)). This FAA policy specifies the procedures for FAA to evaluate proposals for new or expansion of existing waste disposal sites within 5 mi of a public-use airport and for documenting FAA determinations concerning this evaluation. Training and Implementation The FAA has specified by regulation the require- ments for preparation of a Wildlife Hazard Assess- ment.171 FAA guidance describes the ecological study reflected in the Wildlife Hazard Assessment as the “sci- entific basis” for an airport operator’s development of a Wildlife Hazard Management Plan if one is required.172 According to the FARs, the Wildlife Hazard Assessment must be conducted by a wildlife damage management biologist whose qualifications include professional train- ing or experience in airport wildlife hazard manage- ment.173 Qualifications The FAA further prescribes the qualifications of a “qualified airport wildlife biologist” satisfying the FARs’ requirements in Advisory Circular 150/5200-36A— Qualifications for Wildlife Biologist Conducting Wildlife Hazard Assessments and Training Curriculums for Airport Personnel Involved in Controlling Wildlife Haz- ards on Airports (January 31, 2012). The requirements include academic coursework, specific and continuing training in airport wildlife hazard management, and Wildlife Hazard Assessment experience. FAA CertAlert 97-09 states the biologist’s primary responsibilities in conducting the Wildlife Hazard As- sessment are to: • Provide information on the wildlife attractants that have been identified on or near the airport. • Identify wildlife management techniques. • Prioritize appropriate mitigation measures. • Recommend necessary equipment and supplies. • Identify training requirements for the airport per- sonnel who will implement the Wildlife Hazard Man- agement Plan. The Wildlife Hazard Management Plan must include provisions for training for the airport personnel responsible for implementing the plan. The training program must be conducted by a wildlife damage management biologist174 with the qualifications 171 14 C.F.R. § 139.337. 172 CertAlert 97-09. 173 14 C.F.R. § 139.337(c) and f(7). 174 Advisory Circular 150/5200-36A Qualifications for Wild- life Biologist Conducting Wildlife Hazard Assessments and Training Curriculums for Airport Personnel Involved in Con- trolling Wildlife Hazards on Airports (Jan. 31, 2012) provides that the term “wildlife damage management biologist” will be required for biologists authorized to conduct Wildlife Hazard Assessments. The training program must be designed to provide airport personnel with the knowledge and skills required to conduct the activities specified in the plan.175 The training should be provided to all relevant airport personnel and include, among other components, wildlife hazard awareness training and pesticide use training and certification.176 Advisory Circular No. 150/5200-36A—Qualifications for Wildlife Biologist Conducting Wildlife Hazard As- sessments and Training Curriculums for Airport Per- sonnel Involved in Controlling Wildlife Hazards on Air- ports (January 31, 2012) also specifies the requirements for airport personnel wildlife management training programs. This Advisory Circular describes the FAR airport operational training program requirements (e.g., airport marking and lighting, access and operation in movement areas, and communications) applicable to all airport personnel with access to aircraft movement areas and safety areas.177 This Advisory Circular notes the operational training program provisions incorporate wildlife management training.178 Wildlife management training includes both initial and recurring training programs for all airport personnel actively involved in implementing the airport’s Wildlife Hazard Manage- ment Plan. Review of Airport Wildlife Hazard Management Plans The FAA Office of Airport Safety and Standards has issued policies to address the responsibilities of FAA Airport Certification Safety Inspectors concerning initiation of a Wildlife Hazard Assessment or development of a Wildlife Hazard Management Plan. These policies specify FAA actions to ensure compliance with the airport operator’s wildlife hazard management obligations according to 14 C.F.R. § 139.337 when an incident occurs that would initiate a Wildlife Hazard Assessment.179 FAA Policies and Program Guidance Policy No. 77— Initiation of Wildlife Hazard Assessment at Airports (June 21, 2004). This policy establishes procedures for the FAA Airport Certification Safety Inspectors (ACSI) to follow when the FAA determines whether an airport needs to conduct a wildlife hazard assessment to ad- dress an airport wildlife hazard. The procedures include notice to the airport operator concerning the need to initiate the assessment and the ACSI’s review of the Airport Certification Manual to determine the suffi- ciency of the airport operator’s existing procedures and referred to as a “qualified airport wildlife biologist” for pur- poses of 14 C.F.R. § 139.337(c) and (f)(7). 175 14 C.F.R. § 139.337(f)(7). 176 FAA CertAlert 97-09. 177 14 C.F.R. § 139.303. 178 14 C.F.R. § 139.337. 179 Policy Nos. 77 and 79 are no longer easily available on the FAA Web site and are included in Appendix F.

27 the operator’s compliance with the regulatory certifica- tion requirements. FAA Policies and Program Guidance Policy No. 79— Review of Airport Wildlife Management Plans (June 21, 2004). This policy establishes the procedures the FAA Airport Certification Safety Inspectors must follow when addressing a wildlife incident that requires an airport operator to initiate a Wildlife Hazard Assess- ment. This policy explains the procedures that address the Wildlife Hazard Assessment and the review of a previously approved Wildlife Hazard Management Plan. The policy provides for FAA review of all wildlife strike reports and prescribes the actions the FAA will take upon notice of a wildlife strike incident. These in- clude evaluation of the Airport Certification Manual, previous Wildlife Hazard Assessment on the airport property, and direction to develop a Wildlife Hazard Management Plan. FAA under its Wildlife Hazard Mitigation Program has issued the following Draft Advisory Circulars: Draft Advisory Circular 150/5200-32B—Reporting Wildlife Aircraft Strikes (public comment period ended on January 31, 2013) will replace AC 150/5200-32A and includes recent improvements to the FAA Bird/Other Wildlife Strike Reporting system, the types of animal strikes that should be reported, how to report the strike incident, and what happens to and how to access the data. Draft Advisory Circular 150/5200-33C—Hazardous Wildlife Attractants on or near Airports (public com- ment period ended on January 31, 2013) will replace AC 150/5200-33B and clarifies that Grant Assurance No. 19 requires airports to have a qualified airport wildlife biologist conduct a Wildlife Hazard Assessment or Wild- life Hazard Site Visit, and the requirements and expec- tations regarding Site Visits, Assessments, and Wildlife Hazard Management Plans for noncertificated airports. Draft Advisory Circular 150/5200-XX—Protocol for the Conduct and Review of Wildlife Hazard Site Visits, Wildlife Hazard Assessments, and Wildlife Hazard Management Plans, a new Advisory Circular whose public comment period ended January 31, 2013, estab- lishes the minimum standards for the conduct and preparation of Wildlife Hazard Site Visits, Assessments, and Management Plans. Supplemental Actions The FAA has issued guidance concerning use of avian radar systems to supplement the measures specified in an airport operator’s Wildlife Hazard Management Plan and reduce the potential avian threats to aircraft. FAA Advisory Circular No. 150/5220-25—Airport Avian Radar Systems (November 23, 2010) addresses the selection, procurement, deployment, and management of avian radar systems. This Advisory Circular provides guidance on the use of avian radar systems to supplement an airport’s Wildlife Hazard Management Plan and reduce the potential avian threats to aircraft. The Advisory Circular describes the function of avian systems and system equipment, radar coverage area, and data acquisition performance specifications in application of avian radar systems as part of the airport’s wildlife hazard management activities. V. WILDLIFE AND WILDLIFE HAZARD MANAGEMENT—FEDERAL LAW Sections IV, V, and VI of this digest discuss aspects of the federal components of wildlife hazard management and reduction at airports. Section IV describes the federal law requirements for development and implementation of Wildlife Hazard Management Plans. Section IV also identifies some of the legally- acceptable means airports can pursue under federal law to remove or discourage wildlife (including protected species) from airport operations areas, including runways, taxiways, and airspace necessary for takeoff and landing. Section VI concerns federal law provisions regarding land-use compatibility for airport operations. This section addresses federal law provisions other than those related to Wildlife Hazard Management Plans and land-use compatibility. Animal Damage Control Federal law provides authority and direction to the USDA to manage and control wildlife hazards to aviation. The USDA exercises this authority through the agency’s Animal and Plant Health Inspection Service, WS program. Federal law provides direction to the WS predecessor to protect the nation’s agricultural and other resources from wildlife damage (The National Animal Damage Control Act of 1931).180 Since that time this responsibility has been transferred between agencies, but it is now delegated under federal law to the USDA. The WS responsibilities under federal law specifically include management of wildlife hazards to aviation.181 Wildlife Hazards to Aviation The USDA has issued guidance concerning the assis- tance WS provides to airport operators and the FAA concerning wildlife hazards. USDA Directive 2.305— Wildlife Hazards to Aviation (March 1, 2004)182 provides guidelines for WS technical and direct control assis- tance to airport operators, state aviation agencies, the FAA, and the Department of Defense regarding hazards caused by wildlife to airport safety. The guidance also describes assistance to federal and state agencies, air- port managers, and the aviation industry to reduce wildlife hazards according to the FAA-WS MOU. In addition, the USDA guidance explains that WS may conduct Wildlife Hazard Assessments, assist with Wild- life Hazard Management Plans, and provide technical 180 Animal Damage Control Act of Mar. 2, 1931, 46 Stat. 1468, codified at 7 U.S.C. §§ 426-426(d). 181 7 U.S.C. § 426, et seq. 182 http://www.aphis.usda.gov/wildlife_damage/directives/ 2.305_wildlife_hazards_to_aviation.pdf.

28 assistance activities to minimize hazards caused by wildlife pursuant to cooperative agreements. Wildlife Attractants Hazardous Wildlife Attractants on or near Airports The FAA has issued guidance and direction to airport operators concerning the location of certain land uses on or in the vicinity of public airports that have the potential to attract hazardous wildlife. Advisory Circular No. 150/5200-33B183 addresses hazardous wildlife in three ways. First, the Advisory Circular ranks species groups, including birds and mammals that may be found on or near airport property, that have been determined to be hazardous to aircraft operations. Second, the Advisory Circular identifies the types of land uses that may create wildlife hazards to aircraft operations. Third, the Advisory Circular includes provisions for managing the risks associated with existing land uses and with avoiding the risks in connection with new or expanded airport facilities. Land Uses. Advisory Circular No. 150/5200-33B identifies land-use categories determined by the FAA to be incompatible with safe airport operations because of their potential to attract hazardous wildlife on or near airports, including the following: • Wetlands, including existing wetlands on airport property and wetland mitigation associated with im- pacts from airport development projects. • Waste disposal operations, such as MSWLFs, trash transfer stations, composting operations, recycling cen- ters, and construction and demolition debris facilities. • Water management facilities, including existing and new stormwater management facilities, wastewater treatment facilities, artificial marshes, and wastewater discharge and sludge disposal facilities. • Dredge-spoil containment areas. • Golf courses, landscaping, and landscape mainte- nance. • Agricultural activities, such as agricultural crop production, livestock production, and aquaculture, and seasonal uses (e.g., hunting) of agricultural lands. This Advisory Circular describes methods to address wildlife hazard attractants associated with existing land uses within the specified separation criteria. It also provides for notification to FAA of changes in land uses in the vicinity of public-use airports. Separation Criteria. Advisory Circular No. 150/5200- 33B specifies the minimum separation distance between the land uses determined to be incompatible with airport operations if located within the separation 183 FAA Advisory Circular No. 150/5200-33B—Hazardous Wildlife Attractants On or Near Airports (Aug. 28, 2007), available at http://www.faa.gov/regulations_policies/advisory_ circulars/index.cfm/go/document.list/parentTopicID/11/display/ all/changeNumber/0/currentPage/1/sortResults/false/sort Column/dateIssued/sortOrder/DESC. criteria. The Advisory Circular identifies separation criteria between these land uses and 1) the air operations area (e.g., aircraft movement, loading ramps, and aircraft parking); or 2) new airport development projects planned to accommodate aircraft movement. The minimum recommended separation criteria are 5,000 ft between the air operations area and the hazardous wildlife attractant for airports serving piston-powered aircraft and 10,000 ft between the air operations area and the hazardous wildlife attractant for airports serving turbine-powered aircraft. The Advisory Circular also specifies a separation distance of 5 statute mi between the air operations area and the hazardous wildlife attractant for all airports when the attractant could cause hazardous wildlife to move into or across the airport’s approach or departure airspace. Advisory Circular No. 150/5200-33B states that the minimum separation criteria and other specified stan- dards and practices may be used by certificated airport operators to comply with the FAA’s regulatory wildlife management requirements and must be used by those airport operators who have received federal grant-in-aid assistance.

29 Figure 2. Separation distances within which hazardous wildlife attractants should be avoided, eliminated, or mitigated. Source: FAA Advisory Circular No. 150/5200-33B–Hazardous Wildlife Attractants on or near Airports 2, Fig. 1 (Aug. 28, 2007). Application in Other Regulations. The separation criteria specified in Advisory Circular No. 150/5200-33B are included in federal regulations for siting of facilities with the potential to attract hazardous wildlife on or near airports. For example, the Federal EPA regula- tions establishing criteria for MSWLFs incorporate the separation criteria specified in the Advisory Circular.184 The EPA regulations require MSWLF owners or opera- tors to demonstrate that the facilities will not create a “bird hazard” when the facilities are located or planned within the FAA-specified separation criteria for a pub- lic-use airport. A “bird hazard” is defined in the EPA regulation to mean “an increase in the likelihood of bird/aircraft collisions that may cause damage to the aircraft or injury to its occupants.”185 The EPA regula- tion states: Owners or operators of new MSWLF units, existing MSWLF units, and lateral expansions that are located within 10,000 feet (3,048 meters) of any airport runway end used by turbojet aircraft or within 5,000 feet (1,524 meters) of any airport runway end used by only piston- type aircraft must demonstrate that the units are de- signed and operated so that the MSWLF unit does not pose a bird hazard to aircraft.186 The EPA regulations also require a facility owner or operator proposing to site a new MSWLF within the 184 40 C.F.R. § 258.10. 185 40 C.F.R. § 258.10(d). 186 40 C.F.R. § 258.10(a). FAA separation criteria to provide notice of the proposal to the FAA and the affected airport.187 The written demonstration by the owner or operator that a new or existing or expanded facility will not create a bird haz- ard to aircraft must be included in the facility’s operat- ing record.188 Grasses Attractive to Hazardous Wildlife FAA CertAlert 98-05—Grasses Attractive to Hazard- ous Wildlife (September 21, 1998) cautions airport op- erators against using certain grasses and plants that are attractive to hazardous wildlife on airport property. This guidance describes the concern about using these grasses and plans for revegetation of construction sites or disturbed areas within the airport property. The FAA guidance describes threats to aircraft safety associated with concerns about planting with grass seeds that are major attractants to doves and other seed-eating birds. The guidance includes recommendations for airport operators to eliminate or reduce the use of specified grass species and other varieties of plants attractive to hazardous wildlife on airport property, and also pro- vides guidelines for avoiding use of these species for planting disturbed areas or areas in need of revegeta- tion and for maintenance of areas already planted with these species. 187 40 C.F.R. § 258.10(b). 188 40 C.F.R. § 258.10(c). P E R I M E T E R A P E R I M E T E R B A p r o n P a r k i n g A r e a R u n w a y T a x i w a y Ru nw ay T a x i w a y P E R I M E T E R C

30 Federal law governs the distribution, sale, and the use of pesticides. The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)189 requires registration of all pesticides distributed or sold in the United States. Pesticides also may have to be registered with state regulatory agencies under state law. The FIFRA speci- fies that a pesticide may be registered when the Federal EPA determines that use of the pesticide generally will not cause unreasonable adverse environmental effects. The FIFRA also includes requirements for the applica- tion of pesticides and certification of pesticide applica- tors. The FIFRA requirements apply to airport opera- tors using pesticides on airport property, which has an impact on the airport’s wildlife hazard management activities. For example, the airport operator’s applica- tion of pesticides for vegetation control and to deter wildlife on airport property must be consistent with FIFRA’s requirements. Deer Hazards to Aviation CertAlert No. 04-16—Deer Hazards to Aviation and Deer Fencing (December 13, 2004) addresses control of deer on and near airport operations areas. This FAA guidance describes the dangers to aircraft operations associated with deer in the aircraft movement areas. The guidance provides recommendations to airport operators regarding types of fencing to be used to exclude deer from these areas. The guidance also includes requirements for fencing installation and maintenance to prevent deer from entering aircraft movement areas. Protected Species Endangered Species Act ESA190 is a mechanism for conservation of species in danger of extinction. By enacting ESA in 1973, Congress recognized that various species of fish, wildlife, and plants either had become extinct or were threatened with extinction. The ESA’s statutory purposes include providing a “means whereby the ecosystems upon which endangered species and threatened species depend may be conserved” and creating a “program for the conservation of such endangered and threatened species.”191 The ESA defines an “endangered species” in part as one that “is in danger of extinction throughout all or a significant portion of its range.”192 A “threatened species” is defined by the ESA as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”193 189 Pub. L. No. 80-104, 61, Stat. 163 (1947), codified at 7 U.S.C. § 136, et seq. 190 Pub. L. No. 93-205, 87 Stat. 884 (1973), codified at 16 U.S.C. § 1531. 191 16 U.S.C. § 1531(b). 192 16 U.S.C. § 1532(6). 193 16 U.S.C. § 1532(20). The ESA includes criteria to determine whether a species requires the special protection available under the ESA provisions. The ESA includes requirements and standards for listing animal and plant species and for designating critical habitat for listed species. The USFWS must by rule determine whether a species is either an endangered species or a threatened species based on the following factors: • Present or threatened destruction, modification, or curtailment of the species’ habitat or range. • Species overutilization for commercial, recreational, scientific, or educational purposes. • Disease or predation. • Inadequacy of existing regulatory mechanisms. • Other natural or manmade factors affecting the species’ continued existence.194 The listing decision must be made “solely on the basis of the best scientific and commercial data available” after the USFWS conducts a review of the species’ status and considers efforts of other governmental entities to protect the species.195 The ESA also prescribes an interagency consultation process that applies to federal agency actions that may impact listed species or designated critical habitat. Section 7 of the ESA requires federal agencies to consult with the federal resource agencies (USFWS or the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NMFS)) to ensure that agency actions conducted, authorized, or funded by those agencies are not likely to jeopardize the continued existence of listed species or adversely modify designated critical habitats. The ESA includes provisions for agencies and others, including airport operators, to seek authorization of actions that may result in the “take” of listed species through a permitting process196 or the incidental take statement process.197 The USFWS and NMFS have enacted regulations governing the process for interagency consultation and authorization consistent with the ESA mandates.198 The FAA has issued guidance concerning the approach the agency will take in addressing its ESA consultation requirements. FAA Program Policy and Guidance Policy No. 78—Section 7 Consultation on Endangered or Threatened Species (June 21, 2004) specifies that when the FAA requires plan development or revision, the FAA Regional Coordinator will request information from the USFWS concerning the presence of species and critical habitat that are either listed or designated (or proposed for listing or designation) under the ESA on or near the airport property. According to this FAA policy, the FAA Regional Coordinator will 194 16 U.S.C. § 1533(a). 195 16 U.S.C. § 1533(b). 196 Sec. 10 of the ESA. 197 Sec. 7 of the ESA. 198 16 U.S.C. § 1531, et seq., and 50 C.F.R. Pt. 17.

31 provide information from the USFWS regarding federally listed species or critical habitat for compliance with the ESA’s interagency consultation requirements.199 The airport operator will use that information in complying with the ESA requirements when seeking authorization for activities on airport property that may affect federally listed species. State-Protected Species FAA has issued guidance concerning the process for evaluating issues concerning listed species use of habitat on airport property. CertAlert No. 06-07— Requests by State Wildlife Agencies to Facilitate and Encourage Habitat for State-Listed Threatened and Endangered Species and Species of Special Concern on Airports (November 21, 2006) describes the procedures for airport operators and FAA certification inspectors to respond to requests by state wildlife agencies to facilitate and encourage habitats for state-listed threatened and endangered species or species of special concern occurring on airports that may pose a threat to aviation safety. The FAA guidance also discusses concerns regarding techniques that may increase wildlife hazards, be inconsistent with safe airport operations, and create a threat to aviation safety. Migratory Birds Migratory Bird Treaty Act. The Federal MBTA200 establishes a program for the protection of migratory birds included in international conventions the United States has entered into with Great Britain, Mexico, Japan, and Russia. The MBTA prohibits actions to “pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase” or to transport or receive a migratory bird covered by the terms of the statute. The MBTA prohibition also applies to any part, nest, or egg of any covered migratory bird. The MBTA authorizes the adoption of regulations specifying the circumstances in which “take” of a migratory bird, nest, part, or egg may be authorized under the statute.201 Violation of the statutory prohibition may result in criminal penalties, including imprisonment of up to 6 months and a fine of up to $15,000.202 The USFWS has adopted permit regulations for authorizations issued pursuant to MBTA.203 The actions prohibited under the MBTA are barred unless authorized by permit issued by the USFWS consistent with these regulations.204 The regulations provide for specific types of permits, including permits for import and export, banding and marking, scientific collection, 199 16 U.S.C. § 1536. 200 40 Stat. 755 (1918), codified at 16 U.S.C. §§ 703–712. 201 16 U.S.C. § 704. 202 16 U.S.C. § 707. 203 50 C.F.R. Pt. 21. 204 50 C.F.R. § 21.11. special purpose, and falconry.205 The MBTA regulations also provide for issuance of permits to state wildlife agencies for Canada geese management and control activities when the USFWS determines the permit “will contribute to human health and safety, protect personal property, or allow resolution or prevention of injury to people or property.”206 The MBTA regulations include specific take authorization for control and management of resident Canada geese at airports and military airfields.207 The regulation specifies the permit will be issued to the airport “when necessary to resolve or prevent threats to public safety” from Canada geese. The regulations specify the permit requirements and the timing of the airport’s permitted activities. The permit may authorize lethal and nonlethal control actions, including trapping, relocation, nest and egg destruction, shooting, egg oiling, and use of nets and pesticides or drugs. The regulations, however, specify that this permit does not authorize the airport operator to take actions that adversely affect other migratory birds or species listed as endangered or threatened under the ESA.208 Bald and Golden Eagle Protection Act. The Federal Bald and Golden Eagle Protection Act (BGEPA)209 es- tablishes a program for protection of bald eagles and golden eagles. With certain exceptions as authorized by FWS permit, BGEPA prohibits any take, possession, sale, purchase, barter, transport, export, or import of a bald eagle or any of its parts, nests, or eggs.210 The term “take” is defined in statute to include pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, mo- lest or disturb.211 Violations of the BGEPA prohibitions can result in significant criminal and civil penalties.212 The USFWS has adopted regulations to authorize actions that may result in take. The BGEPA regula- tions authorize take for actions consistent with the statute, including scientific collection or exhibition, In- dian religious purposes, and depredation.213 The regula- tions specify that the permit may be issued if the USFWS determines the take is “compatible with the preservation” of the eagle. This determination requires the USFWS to consider whether the eagles have “be- come seriously injurious” to wildlife or other interests in the locality. The USFWS also must determine that the injury related to the eagles is “substantial” or that the eagles “pose a significant risk to human or eagle health and safety.”214 205 50 C.F.R. §§ 21.21 –21.29. 206 50 C.F.R. § 21.26. 207 50 C.F.R. § 21.49. 208 Id. 209 Pub. L. No. 86079, 54 Stat. 250 (1940), et al., codified at 16 U.S.C. § 668, et seq. 210 16 U.S.C. § 668(a). 211 16 U.S.C. § 668(d). 212 16 U.S.C. § 668(a). 213 50 C.F.R. § 22.23. 214 50 C.F.R. § 22.23.

32 After the delisting of the bald eagle under ESA, the USFWS adopted regulations to authorize take that pre- viously had been or could be authorized under ESA.215 The BGEPA regulations provided a process for permit- ting an ESA-authorized activity when the activity is conducted in “full compliance” with the terms and con- ditions of the ESA Section 7 incidental take state- ment.216 The BGEPA regulations also authorize issu- ance of either individual or programmatic permits for take associated with but not the purpose of an activ- ity.217 A permit may be issued under BGEPA when the USFWS determines the take is compatible with eagle preservation, with consideration given to indirect and cumulative effects of other permitted take, and neces- sary to protect a legitimate interest in a particular lo- cality. The BGEPA rules make permitting of take re- lated to safety emergencies the highest priority and prioritize other types of take that may be associated with airport operations, including nonemergency activi- ties required to ensure public health and safety and renewal of programmatic take permits. The BGEPA rules also require the USFWS to determine whether the permit applicant has provided avoidance and minimiza- tion measures to reduce take to “the maximum degree practicable”: for programmatic take, the permit appli- cant also must demonstrate the take is “unavoidable despite application of advanced conservation practices” developed with USFWS coordination.218 The Federal Lacey Act219 also includes protections for wildlife that may occur on airport property. The Lacey Act makes the import, export, transport, sale, receipt, acquisition, or purchase of any fish or wildlife a federal offense if taken, possessed, transported, or sold in viola- tion of any state, tribal, or federal law.220 “Taken” is defined for purposes of the Lacey Act to include capture, killing, or collection.221 The Lacey Act includes both criminal and civil penalties.222 As with the BGEPA, the Lacey Act promotes enforcement by authorizing forfei- tures and rewards for information leading to arrest and convictions.223 Planning and Development Hazardous Wildlife Attractants on or near Airports As described in Section IV of this digest, the FAA has issued an Advisory Circular to provide direction to airport operators concerning land uses on or in the vicinity of public airports that have the potential to attract hazardous wildlife. FAA Advisory Circular No. 215 50 C.F.R. § 22.28. 216 Id. 217 50 C.F.R. § 22.26. 218 50 C.F.R. § 22.28(e). 219 95 Stat. 1073 (1900), codified at 16 U.S.C. §§ 3371– 3378. 220 16 U.S.C. § 3372. 221 16 U.S.C. § 3371. 222 16 U.S.C. § 3373. 223 16 U.S.C. § 3373– 3378. 150/5200-33B—Hazardous Wildlife Attractants on or near Airports (August 28, 2007) identifies land uses that may be incompatible with airport operations if located within the specified separation criteria, including waste disposal operations, wetland mitigation, artificial marshes, agricultural activities, wastewater treatment facilities, landscaping, wastewater discharge and sludge disposal, and golf courses. The Advisory Circular also specifies separation criteria (5,000 ft and 10,000 ft, depending on the type of aircraft served) between an airport’s operations areas (e.g., aircraft movement, loading ramps, and aircraft parking) and uses that may be wildlife attractants. In addition, the Advisory Circular describes methods airport operators can use to address wildlife hazard attractants associated with existing land uses within the specified separation criteria. Construction or Establishment of Landfills near Public Airports Federal law recognizes the safety implications of siting or expanding landfill facilities within the vicinity of airports. Under federal law, the FAA can by rule or order require a facility owner or operator to submit notice to the agency of the actual or proposed construction, alteration, establishment, or expansion of a structure or sanitary landfill when notice will promote aircraft safety at public-use airports.224 The federal law also specifies that an MSWLF may not be constructed or established within 6 mi of a public airport unless the FAA provides the applicable state aviation agency with an exemption from the statutory prohibition. The FAA will provide the exemption when the agency determines it will have no adverse impact on public safety.225 The FAA has issued an Advisory Circular addressing an airport operator’s compliance with the Federal MSWLF provisions. The FAA Advisory Circular No. 150/5200-34A—Construction or Establishment of Land- fills Near Airports (January 26, 2006) states the FAA’s position that locating landfills in proximity to airports increases the risk of collisions between birds and air- craft. To address this concern, the Advisory Circular requires the proponent of a new MSWLF to determine whether the new facility would be located within 6 mi from the public airport. If the facility is within the specified distance, the Advisory Circular provides two options for the MSWLF proponent: 1) plan the facility for another location outside the 6-mi distance; or 2) re- quest that the state aviation agency file a petition for exemption from the FAA. The EPA has adopted regulations requiring an MSWLF owner or operator proposing a new or ex- panded MSWLF within the FAA-specified separation criteria to demonstrate that the facility will not create hazardous conditions for aircraft. The EPA regulations apply to siting of MSWLF facilities with the potential to 224 49 U.S.C. § 44718(a). 225 49 U.S.C. § 44718(d).

33 attract hazardous wildlife on or near public-use air- ports. The EPA regulations establishing the MSWLF criteria require MSWLF owners or operators to demon- strate the facilities will not create a “bird hazard” when facilities are located or planned within the FAA- specified separation criteria for public-use airports.226 A “bird hazard” is defined in the EPA regulation to mean “an increase in the likelihood of bird/aircraft collisions that may cause damage to the aircraft or injury to its occupants.”227 The EPA regulation states: Owners or operators of new MSWLF units, existing MSWLF units, and lateral expansions that are located within 10,000 feet (3,048 meters) of any airport runway end used by turbojet aircraft or within 5,000 feet (1,524 meters) of any airport runway end used by only piston- type aircraft must demonstrate that the units are de- signed and operated so that the MSWLF unit does not pose a bird hazard to aircraft.228 The EPA regulations also require a facility owner or operator proposing to site a new MSWLF within the FAA separation criteria to provide notice of the proposal to the FAA and the affected airport.229 The written demonstration by the owner or operator that a new or existing or expanded facility will not create a bird haz- ard to aircraft must be included in the facility’s operat- ing record.230 Waste Disposal Facilities FAA has adopted a policy concerning the agency’s process for review of notices concerning proposed waste disposal facilities. The FAA Airport Certification Program—14 C.F.R. Part 139 Program Policy and Guidance Policy No. 82—Waste Disposal Facility Coordination (September 9, 2004) states that pressure to develop new waste disposal facilities or to expand existing sites requires the agency to coordinate responses to ensure consistency. The FAA policy provides for the responsible regional FAA personnel to determine whether the proposal is compatible with applicable FAA Advisory Circulars231 and with safe airport operations. The policy also provides for the responsible FAA personnel to prepare a written compatibility determination and any recommended permitting conditions and requires the FAA Staff Wildlife Biologist to concur in the determination. The Letter of Determination transmitted to the state aviation agency or facility proponent must include all recommended permitting conditions. 226 40 C.F.R. § 258.10. 227 40 C.F.R. § 258.10(d). 228 40 C.F.R. § 258.10(a). 229 40 C.F.R. § 258.10(b). 230 40 C.F.R. § 258.10(c). 231 FAA Advisory Circular 150/5200 –33B, Hazardous Wild- life Attractants on or Near Airports (Aug. 28, 2007); FAA Advi- sory Circular 150/5200– 34A, Construction or Establishment of Landfills Near Public Use Airports (Jan. 26, 2006). Airport Design FAA has adopted guidance addressing numerous design and safety provisions for airport construction. FAA Advisory Circular No. 150/5300-13 (September 29, 1989, with changes through December 30, 2011) provides comprehensive airport design recommenda- tions from the FAA and includes provisions for runway design, airport geometry, surface gradient and line of sight, and navigational aids. This Advisory Circular also specifies “declared distances,” or minimum distances related to runway safety areas. These provisions include “object free areas” in the vicinity of runways and preclude activities that could create a safety hazard in the runway safety areas. Appendix 17 of this Advisory Circular lists the minimum safe distances between specified airport facilities and on- airport agricultural operations. Assessment and Reporting Qualifications The FAA has specified by regulation the require- ments for preparation of a Wildlife Hazard Assess- ment.232 FAA guidance describes the ecological study reflected in the Wildlife Hazard Assessment as the “sci- entific basis” for an airport operator’s development of a Wildlife Hazard Management Plan if one is required.233 According to the FAR, the Wildlife Hazard Assessment must be conducted by a wildlife damage management biologist whose qualifications include professional train- ing or experience in airport wildlife hazard manage- ment.234 The FAA has issued FAA Advisory Circular 150/5200-36A—Qualifications for Wildlife Biologist Conducting Wildlife Hazard Assessments and Training Curriculums for Airport Personnel Involved in Control- ling Wildlife Hazards on Airports (January 31, 2012), which concerns the qualifications of the wildlife biolo- gist who conducts the Wildlife Hazard Assessment con- sistent with the FARs requirements. These qualifica- tions include academic coursework, specific and continuing training in airport wildlife hazard manage- ment, and wildlife hazard assessment experience. FAA CertAlert 97-09 states the biologist’s primary responsi- bilities in conducting the Wildlife Hazard Assessment are to: • Provide information on the wildlife attractants that have been identified on or near the airport. • Identify wildlife management techniques. • Prioritize appropriate mitigation measures. • Recommend necessary equipment and supplies. • Identify training requirements for the airport per- sonnel who will implement the Wildlife Hazard Man- agement Plan. 232 14 C.F.R. § 139.337. 233 CertAlert 97-09. 234 14 C.F.R. § 139.337(c) and f(7).

34 The Wildlife Hazard Assessment must identify the reason (events or circumstances) for conducting the assessment and identify the numbers, locations, local movements, and occurrences (daily and seasonal) of the wildlife observed during the assessment. The Wildlife Hazard Assessment also must report the identification and location of on-airport and off-airport features at- tracting wildlife and include a description of wildlife hazards to air carrier operations that were identified. Further, the Wildlife Hazard Assessment must include recommendations to reduce the identified wildlife haz- ards.235 Reporting The FAA has issued guidance concerning reporting collisions between aircraft and wildlife. FAA Advisory Circular No. 150/5200-32A—Reporting Wildlife Aircraft Strikes (December 22, 2004) explains the importance of reporting collisions between aircraft and wildlife, more commonly referred to as wildlife strikes. The Advisory Circular also describes recent improvements in the FAA’s Bird/Other Wildlife Strike Reporting system and explains the process for accessing the FAA National Wildlife Aircraft Strike Database and for reporting a wildlife strike. This Advisory Circular also explains the use of the information submitted through the wildlife strike report data for the FAA National Wildlife Aircraft Strike Database, and the FAA’s Feather Identification program.236 Agency Cooperation FAA and USDA/WS The FAA and WS work cooperatively to evaluate po- tential wildlife threats to airport operations and to as- sess data and information concerning aircraft wildlife collisions. FAA guidance concerning this relationship describes the role of the FAA in regulating airport op- erator certification and in ensuring compliance with the requirement for certificated airports to develop and implement a Wildlife Hazard Management Plan. The FAA guidance also explains the role of WS in conduct- ing Wildlife Hazard Assessments for airport operators and in providing assistance to FAA in reviewing and contributing to Wildlife Hazard Management Plans being developed by airport operators.237 The FAA and WS have entered into an MOU (FAA- WS MOU)238 that establishes the agencies’ collaborative 235 14 C.F.R. § 139.337(c). 236 The form is on the FAA Web site at http://www.faa. gov/documentLibrary/media/form/faa5200-7.pdf. The wildlife strike report may be submitted electronically through the FAA Wildlife Strike Reporting Web site at http://wildlife- mitigation.tc.faa.gov/wildlife/strikenew.aspx. 237 FAA CertAlert 04-09 Relationship between FAA and WS (Aug. 30, 2004). 238 Memorandum of Understanding between the United States Department of Transportation Federal Aviation Ad- approach to resolving and deterring wildlife hazards to aviation. The FAA-WS MOU recognizes the expertise of WS in assessing wildlife hazards to aviation on and near airports and in training airport personnel to re- duce these hazards. The FAA-WS MOU also specifies that either the FAA or a certificated airport operator may seek WS technical assistance regarding response to or reduction of wildlife hazards—assistance that may include site visits, Wildlife Hazard Assessments, sup- port for development of Wildlife Hazard Management Plans, wildlife species identification training, control device training, and assistance with management of hazardous wildlife and habitats. In addition, the FAA- WS MOU includes the agreement that WS personnel will advise certificated airport operators to secure any permits or licenses required to control wildlife. The FAA has entered into wildlife hazard manage- ment agreements with other agencies and organiza- tions. The FAA and the NASAO239 entered into an MOU to foster cooperation between WS and NASAO to reduce wildlife hazards at airports in every state. This FAA- NASAO MOU was first established in 1996 and has been supplemented in recent years to address issues such as land-use policy coordination, enhancement of state block grants to the AIP, navigational aids, and airport pavement management. The 2010 supplement to the FAA-NASAO MOU240 specifically addresses coop- eration to enhance reporting of wildlife strikes. The MOU amendment seeks to improve wildlife-strike data- gathering processes through NASAO’s facilitation in disseminating FAA educational information and involv- ing state aviation directors and others within the avia- tion community in this effort. Interagency Memorandum of Agreement The FAA has established interagency agreements to address wildlife hazards at certain military facilities. The FAA entered into an MOA to address aircraft– wildlife conflicts at military installations operated by the U.S. Air Force and U.S. Army.241 Three federal re- ministration and the United States Department of Agriculture Animal and Plant Health Inspection Service Wildlife Ser- vices MOU No. 12-34-71-0003-MOU (June 27, 2005), available at http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article= 1015&context=birdstrikeother (last visited Feb. 17, 2013). 239 Memorandum of Understanding Between the Federal Aviation Administration and the National Association of Avia- tion Officials (1996), available by clicking on “MOU library link” at http://www.nasao.org/TEST/NASAOFAAMOU.aspx. 240Attachment to Memorandum of Understanding Between the Federal Aviation Administration and the National Associa- tion of Aviation Officials: 2010 Initiative Wildlife Hazards (Aug. 24, 2011), available by clicking on “Wildlife Hazards” at http://www.nasao.org/TEST/NASAOFAAMOU.aspx. 241 Memorandum of Agreement Between the Federal Avia- tion Administration, the U.S. Air Force, the U.S. Army, the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, and the U.S. Department of Agriculture to

35 source agencies also are parties to this agreement: USDA, USFWS, and the EPA. This MOA describes the agencies’ respective missions in protecting aviation from wildlife hazards. The MOA also identifies proce- dures to minimize risks to aviation and human safety through agency coordination to address existing and future environmental conditions contributing to wildlife strikes. In addition, the FAA has entered into a regional MOU with several federal military and resource agen- cies242 to address aircraft wildlife strikes in the south- eastern United States. VI. WILDLIFE AND WILDLIFE HAZARD MANAGEMENT—STATE LAW Regulation of airport operations and wildlife man- agement actions is governed to a great extent by federal law. The federal wildlife management laws and guid- ance described above provide a broad federal framework for regulation of airport actions in this regard. State laws commonly reflect recognition of the federal wildlife management regulatory program through incorporation of and references to federal law and to FAA require- ments in state laws, regulations, and policy. State laws also supplement the federal regulatory framework by providing for 1) appropriate siting, licensing, and in- spection of airports and air navigation facilities; 2) funding of airport construction, development, and im- provement projects; 3) land-use compatibility of areas surrounding airports through land-use and height re- strictions in areas surrounding airport operations; 4) acquisition of property and property interests (e.g., easements, air rights) necessary to ensure adequate aircraft approach and landing areas and to reduce, eliminate, or mitigate wildlife and other hazards within the vicinity of the airport property; and 5) wildlife man- agement and protection programs that may affect the manner in which airport operators respond to and deter hazardous wildlife issues on airport property. States have addressed general and specific issues concerning airport wildlife management through laws, regulations, and guidance. The issue of wildlife man- agement includes general consideration of the state management and regulatory framework governing wild- life, including authorizations to hunt, harvest, and trap wildlife and restrictions or prohibitions against posses- Address Aircraft-Wildlife Strikes (July 29, 2003), http://www.faa.gov/airports/environmental/media/wildlife_ hazard_mou_2003.pdf. 242 Regional Memorandum of Understanding (RMOU) be- tween the Federal Aviation Administration (FAA), U.S. Air Force (USAF), U.S. Army Corps of Engineers (ACOE), U.S. Environmental Protection Agency (EPA), U.S. Fish and Wild- life Service (FWS), U.S. Department of Agriculture APHIS Wildlife Services (USDA) to Address Aircraft-Wildlife Strikes in the Southern Region of the United States, http://www.faa.gov/airports/southern/airport_safety/media/so_ wildlife_strikes_mou.pdf. sion and take of wildlife. Similar to the Federal ESA,243 state laws also establish regulatory programs concern- ing protection and management of protected species, which may impose prohibitions on or require state au- thorizations for airport actions that could result in take of a state-listed species. The state programs also may incorporate consideration of federally protected species and require documentation of necessary federal au- thorizations (e.g., federal depredation permit) for speci- fied airport wildlife management actions. In addition to the direct application to airport devel- opment and planning as described in this section, state hazard management (wildlife and other hazards) may be incorporated into federal considerations through the FAA grant funding process, which is described in greater detail in Section II of this digest. As discussed in Section II, an airport sponsor may apply for federal grant funding of an airport planning or development project through the Federal AIP and other grant pro- grams, such as the Federal Aid to Airports Program and the Airport Development Aid Program. Under fed- eral law, the FAA may approve a grant application for an airport development project only if the airport pro- ject grant recipient provides the 21 general written as- surances associated with airport operations specified in the statute.244 The FAA will require compliance regard- ing an airport sponsor’s performance in connection with grant agreements for airport development, planning, and noise compatibility program grants.245 The duration of the grant assurances may vary depending on the type of grant recipient or facility being developed with the grant funding. Federal law specifies that the agreement incorpo- rated within the application of an airport sponsor, or of a state applying for grant funding on behalf of one or more airports, must address safety considerations in conjunction with assurances regarding compliance with development standards.246 The federal statute specifies the proposed development must comply with FAA- prescribed development standards, including “standard for site location, airport layout, site preparation, pav- ing, lighting, and safety of approaches.”247 The required federal assurances are incorporated within an agree- ment submitted by the sponsor with the grant applica- tion and become part of the final grant offer when ap- proved.248 The federal assurances specifically require consideration of airport hazard mitigation. The FAA general written assurances concerning mitigation of all airport hazards (including wildlife hazards) that are required of airport sponsors state: Hazard Removal and Mitigation. It will take appropriate action to assure that such terminal airspace as is re- 243 Pub. L. No. 93, 205, 87 Stat. 884 (1973), codified at 16 U.S.C. § 1531. 244 49 U.S.C. § 47107. 245 49 U.S.C. § 47105. 246 Id. 247 49 U.S.C. § 47105(b). 248 49 U.S.C. § 47105.

36 quired to protect instrument and visual operations to the airport (including established minimum flight altitudes) will be adequately cleared and protected by removing, lowering, relocating, marking, or lighting or otherwise mitigating existing airport hazards and by preventing the establishment or creation of future airport hazards.249 Many states have responded to the airport hazard problem by establishing a system for development and enforcement of airport zoning regulations. These regu- lations generally are designed to target a specified area within the vicinity of the airport, commonly referred to as an “airport hazard area” or a similar designation. State laws may authorize or require local governments with airports and/or airport hazards areas within their jurisdictions to initiate development of airport zoning regulations to specifically address and respond to crea- tion and establishment of airport hazards. The re- quirements and procedures concerning development and implementation of airport zoning regulations are described in more detail in Section VIII, and the indi- vidual state laws are summarized in Appendix D of this digest. Other state laws that may impact airport wild- life management actions include general wildlife (fish and game) laws, including hunting, fishing, and capture laws that prescribe seasons and methods for killing, taking, transporting, and possessing wildlife; protected wildlife laws, including permitting programs for state- listed species and other protected wildlife; and wildlife depredation and nuisance wildlife laws, which provide for lethal and nonlethal actions property owners (in- cluding airport operators) may take to eliminate or re- duce property damage resulting from wildlife. A comprehensive discussion of states’ approaches to airport wildlife management considerations is beyond the scope of this digest. Instead, this section of the re- port will focus on the types of state laws that regulate or affect airport operators’ ability to manage wildlife on airport property and to eliminate or reduce the poten- tial for incidents resulting from wildlife hazards on and near airport property. This section will not identify or address all state environmental, wildlife, game, land- use, or other laws that may affect wildlife management or wildlife protection and management considerations that may not be directly related to airport wildlife man- agement or airport wildlife hazards. This section does not identify each applicable state law; rather, this sec- tion provides a description and some examples of com- mon approaches to regulation of wildlife management at airports. Appendix D of this digest identifies the state laws related to wildlife management that are re- lated to the discussion in this section. Appendix D also identifies the state laws concerning airport land-use compatibility laws that affect land use and the potential for airport hazards within the vicinity of airport opera- tions. The summary of the laws identified in Appendix D and provided in this section of the digest are based on the versions of the state statutes and regulations avail- 249 FAA Grant Assurances, Sponsor Certification Section C (21). able through the applicable state Web sites (as of March 2012) and may not reflect the most recent legislative changes to these laws. Airport Hazards–Recognition Many states have recognized the scope of the airport hazard problem through statements of legislative intent and purpose in airport regulation statutes. Some state laws describe the nature and scope of the problems as- sociated with wildlife hazards and identify the state interests served by elimination and reduction of these hazards. For example, Nebraska law specifically recog- nizes the public safety, property, and other impacts associated with airport hazards: It is hereby found that an airport hazard endangers the lives and property of the users of an airport and occu- pants of land in its vicinity and also, if of the obstruction type, in effect reduces the size of the area available for the landing, taking off, and maneuvering of aircraft, thus tending to destroy or impair the utility of the airport and the public investment therein.250 These state statutes also may identify the public purposes served by elimination and reduction of airport hazards. The Nebraska law specifies that prevention, elimination, removal, alteration, and mitigation of air- port hazards and marking and lighting of existing air- port hazards are “public purposes for which political subdivisions may raise and expend public funds and acquire land or property interests.”251 In connection with this legislative recognition of the problems associated with airport hazards, some state laws declare airport hazards to be a public nuisance. A common approach is to declare the creation or estab- lishment of an airport hazard to be a public nuisance and a public injury to the community served by an air- port. For example, California law states: It is hereby declared: (a) that the creation or establish- ment of an airport hazard is a public nuisance and an in- jury to the community served by the airport in question; and (b) that it is therefore necessary in the interest of the public health, public safety, and general welfare that the creation or establishment of airport hazards be prevented by appropriate exercise of the police power or the author- ity conferred by Article 2.6 (commencing with Section 21652) of Part 1 of Division 9 of the Public Utilities Code [airport hazards—property acquisition].252 As discussed in Section VIII of this digest, many states have responded to the airport hazard problem by establishing a system for development and enforcement of airport zoning regulations. These airport zoning regulations generally are designed to target a specified “airport hazard area” and to identify land uses and height restrictions appropriate for uses within this des- ignated area. While not directly related to the issues of wildlife management, these airport zoning laws (de- scribed in Section VIII and identified in Appendix D of 250 NEB. REV. STAT. § 3-302. 251 Id. 252 CA. GOV’T CODE § 50485.2.

37 this digest) address issues associated with land uses and other features (e.g., trees and other vegetation) that may attract hazardous wildlife to or near airport property. These state laws also frequently provide mechanisms for enforcement of zoning regulations and specify penalties for violation of these regulations that may deter the establishment or maintenance of land uses and vegetation likely to attract hazardous wildlife. “Airport Hazard” Definition Airport zoning laws define airport hazards for pur- poses of the regulatory structure established for the areas around airports. While state laws differ on the specific language incorporated into the definition, state definitions of “airport hazard” commonly focus on the effects of structures, objects of natural growth (trees and other vegetation), and land uses that may affect the navigable airspace and therefore impact aircraft opera- tions. For example, North Carolina defines the term as follows: “’Airport hazard’ means any structure, object of natural growth, or use of land, which obstructs the air- space required for the flight of aircraft in landing or taking off at any airport or restricted landing area or is otherwise hazardous to such landing or taking off.”253 Under Alabama law, an airport hazard is defined to include structures, natural growth, and land use that obstruct “the defined approach and departure paths applicable to that airport.”254 While this approach is common, other states more directly address the dangers associated with these impacts. For example, the New Jersey Air Safety and Zoning Act defines the term with specific reference to the resulting threat to human life and property: “Airport hazard” means (1) any use of land or water, or both, which creates a dangerous condition for persons or property in or about an airport or aircraft during landing or taking-off at an airport, or (2) any structure or tree which obstructs the air space required for the flight of aircraft in landing or taking-off at an airport.255 State airport zoning laws also define the areas within the vicinity of the airport property that may af- fect aircraft operations when an airport hazard is pre- sent or established there. A common term that statutes use to define this area for purposes of the airport zoning laws is “airport hazard area.” Other states use “airport safety zone” or similar terms. These definitions gener- ally incorporate the types of uses identified in the “air- port hazard” and reference the need to prevent the es- tablishment or creation of airport hazards. For example, the New Jersey definition of “airport safety zone” follows from the definition provided above in de- fining this term as “any area of land or water or both, upon which an airport hazard might be created or es- tablished, if not prevented.”256 Alaska law defines “air- port hazard area” to mean “an area in the vicinity of an 253 N.C. GEN. STAT. § 63-1. 254 ALA. ADMIN. CODE ch. 60-X. 255 N.J. STAT. § 6:1-82. 256 N.J. STAT. § 6:1-82. airport in which a hazard to the operation of aircraft might be situated,” as determined by the Alaska De- partment of Transportation and Public Facilities.257 Wildlife Regulation This section of the digest provides some examples of state law approaches to airport wildlife management and to general wildlife regulation that may affect wild- life management activities conducted by airport opera- tors on airport property. Airport-Specific Regulation Florida has adopted laws and regulations to specifi- cally address wildlife management activities at airports. The Florida legislature has recognized the need to con- duct authorized airport wildlife management activities to “prevent jeopardy to human life or aircraft safety” and has provided that such actions will not be subject to penalties or restrictions under State law or superseded by State or local laws.258 The Florida law specifies that an airport operator’s “authorized action taken for the purpose of protecting human life or aircraft safety from wildlife hazards” will not be subject to penalties or sanctions under State law, provided these actions were not conducted in a negligent manner.259 Florida law defines the actions that fall within this statutory pro- tection: [A]n “authorized action taken for the purpose of protect- ing human life or aircraft safety from wildlife hazards” is an action authorized by or within the scope of any of the following: 1. The airport’s wildlife hazard management plan, as ap- proved by the Federal Aviation Administration. 2. A depredation permit issued by the United States Fish and Wildlife Service. 3. A standing order of the United States Fish and Wildlife Service. 4. Rule 68A-9.010(4) or rule 68A-27.002, Florida Adminis- trative Code, or a permit authorizing the harassment of wildlife issued by the Fish and Wildlife Conservation Commission.260 The State law further identifies the types of actions that do not qualify for the protection (e.g., trespass and dredge or fill of wetlands or alteration of a stormwater management system unless authorized under State law and with certain exceptions for emergency situations). This Florida law specifies that the statute governs if an authorized action, as described in this statute, conflicts with a development permit or other land-use or envi- ronmental permit, regulation, or authorization.261 The Florida Fish and Wildlife Conservation Commis- sion, the State agency authorized and directed to man- 257 ALASKA STAT. § 2.25. 258 FLA. STAT. § 379.223. 259 FLA. STAT. § 379.223(2). 260 FLA. STAT. § 379.223(3). 261 FLA. STAT. § 379.223(4).

38 age wildlife in the state, has adopted specific regula- tions addressing the scope of authorized take of wildlife, and the acceptable methods for take, on airport prop- erty “for the purpose of ensuring aircraft and human safety.”262 These regulations provide that State authori- zation is not required for take of federally protected species pursuant to a federal authorization. These regu- lations focus authorization for harassment and take of State-listed species and Florida black bears on actions specified in an FAA-approved Wildlife Hazard Man- agement Plan and on imminent threat to aircraft and human safety: (2) The following paragraphs control the take of black bears and species described in Chapter 68A-27, F.A.C., except species described in subsection (1): (a) Any of these species may be harassed by persistent, non-injurious disturbance without physical capture or di- rect handling to disperse wildlife when the wildlife poses an imminent threat to aircraft and human safety. (b) Any of these species may be otherwise taken when: 1. The wildlife poses an imminent threat to air- craft and human safety; and 2. A situation requires an emergency response which does not allow time for paragraph (2)(a); or 3. Attempts using paragraph (2)(a) have been documented as unsuccessful and when: a. The airport is implementing a Federal Avia- tion Administration approved wildlife hazard manage- ment plan; and b. The airport has made habitat management alteration that has eliminated or significantly reduced hazardous wildlife attractants on airport property. (c) Wildlife burrows, including gopher tortoise burrows, within the safety area as defined in 14 C.F.R. § 139.5 may be destroyed after or while all existing gopher tortoise(s) within the burrows are live captured.263 This state regulation allows take of other (nonlisted) wildlife on airport property if its “presence poses a po- tential threat to aircraft and human safety.”264 The Florida airport regulation also specifically ad- dresses the take methods that may be used on airport property. This regulation specifies that take methods other than those specifically prohibited by the rule (e.g., leg hold traps; poisons; and traps, nets, and snares, with specified exceptions for each method).265 The Flor- ida regulation also identifies methods for capture, re- lease, transportation, and lethal removal of wildlife on airport property.266 Florida law also includes general provisions to au- thorize take of nuisance wildlife. The Florida law speci- fies that a property owner may take nuisance wildlife 262 FLA. ADMIN. CODE. r. 68A-9.012. 263 FLA. ADMIN. CODE r. 68A-9.012. 264 FLA. ADMIN. CODE r. 68A-9.012(3). 265 FLA. ADMIN. CODE r. 68A-9.012(4). 266 FLA. ADMIN. CODE r. 68A-9.012(5)-(7). with methods other than those prohibited by the regu- lations, including steel traps, poison other than regis- tered pesticides, and live traps and snares with certain exceptions.267 These regulations exempt certain species (e.g., deer and black beer) from the nuisance take provi- sions and include conditions for take of other species (e.g., bats and bobcats). The Florida law also specifies that birds protected under the Federal MBTA may not be taken without federal authorization.268 Provisions for disposition (transportation, release, and euthanasia) of nuisance wildlife taken pursuant to this authorization also are specified.269 Application of General Wildlife Regulatory Program Some states have enacted general safety regulations for airport operation, which include provisions that di- rectly or indirectly address wildlife hazards. For exam- ple, the Alabama law governing airport construction approvals and licensing provides for fencing and prohib- its certain uses on airport property, including livestock grazing.270 Other states incorporate property acquisi- tions to eliminate or reduce airport hazards in eligibil- ity criteria for funding of aviation safety programs.271 California has established an extensive system of wildlife management. California law declares State pol- icy to “actively encourage the safe and biologically sound management of wildlife resources” on State pub- lic-use airport property as regulated by the FAA.272 California law recognizes that airport operations are governed by FAA regulations and policies and federal law protecting public health, safety, and welfare. This law also specifies the need for federally certificated air- ports to harass, harm, and remove species consistent with federal law and permits to protect public health, safety, and welfare.273 In addition, California law speci- fies that take of birds by a FAA-certificated airport in compliance with a federal depredation permit authoriz- ing this take does not violate State law if the take: • Occurs on lands owned or leased by the airport. • Does not occur on airport lands reserved for habi- tat mitigation or conservation purposes of the species being taken. • Does not involve take of a fully protected, candi- date, threatened, or endangered species.274 In other situations, California law authorizes take only to relieve or prevent injurious situations affecting public safety and only as part of an integrated wildlife 267 FLA. ADMIN. CODE r. 68A-9.010. 268 FLA. ADMIN. CODE r. 68A-9.010(1). 269 FLA. ADMIN. CODE r. 68A-9.010(3). 270 ALA. ADMIN. CODE § 60-X-4.-01. 271 See, e.g., N.J. ADMIN. CODE ch. 56. 272 CAL. FISH & GAME CODE § 3471. 273 Id. 274 CAL. FISH & GAME CODE § 3472.

39 management program that emphasizes nonlethal man- agement techniques.275 Nuisance Wildlife and Depredation State laws commonly include provisions for take of nuisance wildlife for wildlife causing damage to prop- erty or affecting public safety. Some states specifically provide for termination of wildlife for protection of hu- man life from imminent danger.276 Other states allow a property owner to trap or kill nuisance wildlife under specified conditions. For example, Washington law states: Subject to limitations and conditions established by the commission, the owner, the owner's immediate family member, the owner's documented employee, or a tenant of real property may trap,…or kill wildlife that is threaten- ing human safety or causing property damage on that property, without the licenses required under RCW 77.32.010 or authorization from the director under RCW 77.12.240.277 Washington law specifies that the conditions and limitations are to be established by rule and must in- clude 1) “appropriate protection” for listed (threatened and endangered) species; 2) circumstances in which verbal or written permission is required to kill wildlife; 3) identification of nuisance species that may be killed; and 4) requirements for disposal of nuisance wildlife trapped or killed.278 State laws also often provide for issuance of state depredation permits for wildlife causing damage to property or affecting public safety. For example, Ari- zona law requires authorization from the State for ac- tions that injure or kill game mammals, game birds, or federally protected wildlife.279 The Arizona law includes procedures for submission of a wildlife damage report, donation of the edible portions of taken wildlife, and for State anti-depredation technical assistance for property owners.280 In addition, Arizona law prohibits actions to harass, molest, chase, rally, concentrate, herd, inter- cept, torment, or drive wildlife with or from any aircraft or any motorized vehicle unless authorized by state law.281 275 CAL. FISH & GAME CODE § 3472.1. 276 See, e.g., Pennsylvania Commonwealth Statutes Anno- tated § 2141—prohibits person from killing game or wildlife as a means of protection “unless it is clearly evident from all the facts that a human is endangered to a degree that the immedi- ate destruction of the game or wildlife is necessary.” 277 WASH. REV. CODE § 77.36.030. 278 Id. 279 ARIZ. REV. STAT. ch. 17. 280 Id. 281 ARIZ. ADMIN. CODE § R12-4-320. VII. AIRPORT LAND-USE COMPATIBILITY AND FEDERAL WILDLIFE MANAGEMENT CONSIDERATIONS Land-use compatibility is a significant factor in de- termining the potential wildlife hazard threat to airport operations. Development of incompatible land uses near airport property may create issues for surrounding uses concerning aircraft noise, environmental impacts, and safety. Of particular relevance to this digest is the wild- life hazard impact to airports associated with incom- patible land use. The FAA has determined that certain types of land uses, including residential, school, and church uses, are considered incompatible with airport operations and that others (e.g., industrial and com- mercial land uses) are more compatible for areas sur- rounding airports. The FAA also has specified that the objectives of airport land-use compatibility are to en- courage incompatible land uses to locate away from airports and encourage land uses that are more com- patible to locate around airports.282 Airport land-use compatibility in the context of wild- life hazards requires consideration of the need for dis- tance between airport operational activities and land uses (on-airport and off-airport) that may attract haz- ardous wildlife. The assessment of wildlife hazards un- der federal law is addressed in Section III of this digest, and wildlife hazard management is discussed in Section V. The FAA has provided guidance identifying land uses (e.g., wetlands, MSWLF, stormwater management facilities, golf courses, and agricultural activities) the agency has determined to be incompatible with safe airport operations because of their potential to attract hazardous wildlife on or near airports (FAA Advisory Circular No. 150/5200-33B—Hazardous Wildlife Attrac- tants On or Near Airports (August 28, 2007)), and speci- fies minimum separation distances between these land uses and aircraft operations areas or new airport devel- opment projects planned to accommodate aircraft movement. The minimum separation criteria are 1) 5,000 ft between the air operations area and the haz- ardous wildlife attractant for airports serving piston- powered aircraft; 2) 10,000 ft between the air opera- tions area and the hazardous wildlife attractant for airports serving turbine-powered aircraft; and 3) 5 statute mi between the air operations area and the haz- ardous wildlife attractant for all airports when the at- tractant could cause hazardous wildlife to move into or across the airport’s approach or departure airspace.283 282 Federal Aviation Administration, Land Use Compatibil- ity and Airports, available at http://www.faa.gov/about/office_ org/headquarters_offices/apl/noise_emissions/planning_toolkit/ media/III.B.pdf. 283 In addition as noted in § II, III, and IV, the FAA requires airport improvement grant sponsors to provide land-use com- patibility assurances in grant agreements for airport develop- ment, planning, and noise compatibility programs awarded under the Federal Airport Improvement Act. Among other assurances, the airport sponsors must provide assurance that they will: “take appropriate action, to the extent reasonable,

40 Some aspects of airport land-use compatibility are addressed in federal law and in FAA regulations and guidance. In addition to FAA guidance and directives, federal law prescribes requirements for siting certain types of land uses within the vicinity of airports. Those provisions are described in this section of the digest. Regulation of non-airport land uses is not within the direct jurisdiction of the FAA. State and local govern- ments generally have responsibility for consideration of airport land-use and compatibility issues through com- prehensive planning, land use, capital improvement plans, building codes, and zoning laws and regulations. State laws concerning airport hazards and land-use compatibility are addressed in Section VIII of this di- gest. Federal law addresses the concern that locating cer- tain land uses, such as landfills, in the vicinity of air- port operations may create a hazardous wildlife attrac- tant. The safety implications of siting or expanding landfill facilities within the vicinity of airports are rec- ognized under federal laws and regulations. The federal statute regulating structures interfering with air com- merce authorizes the FAA to adopt regulations or issue orders requiring landfill facilities or other structures to submit a notice to the FAA of actual or proposed con- struction, alteration, establishment, or expansion of a structure or sanitary landfill when the FAA determines notice will promote “safety in air commerce” at public airports as well as efficiency and protection of airspace and airport traffic capacity at these airports.284 If construction or alteration may obstruct or inter- fere with navigable airspace or with navigation facili- ties and equipment, the FAA may conduct an aeronau- tical study to determine “the extent of any adverse impact on the safe and efficient use of the airspace, fa- cilities, or equipment.”285 The FAA study includes con- sideration of the structure or facility’s impact on exist- ing and planned public airports and aeronautical facilities and on aircraft arrival, departure, and on- route procedures. The study also includes consideration of the cumulative impact of the proposed construction or alteration when combined with impacts associated with existing or proposed structures.286 The FAA report on the study will identify the adverse impact of the con- struction or alteration on safe and efficient use of navi- gable airspace.287 Landfill Siting Federal law limits landfill siting near airport prop- erty without FAA approval. Federal law prohibits con- including the adoption of zoning laws, to restrict the use of land adjacent to or in the immediate vicinity of the airport to activities and purposes compatible with normal airport opera- tions, including landing and takeoff of aircraft.” (FAA Advisory Circular No. 150/5200-33B). 284 49 U.S.C. § 44718(a). 285 49 U.S.C. § 44718(b). 286 49 U.S.C. § 44718(b)(1). 287 49 U.S.C. § 44718(b)(2). struction or establishment of an MSWLF within 6 mi of a public airport that serves specified aircraft operations and that has received federal Airport Improvement Act grant funding288 unless the FAA has granted an exemp- tion from the statutory prohibition. The federal statute states: No person shall construct or establish a municipal solid waste landfill…that receives putrescible waste…within 6 miles of a public airport that has received grants under chapter 471 and is primarily served by general aviation aircraft and regularly scheduled flights of aircraft de- signed for 60 passengers or less unless the State aviation agency of the State in which the airport is located re- quests that the Administrator of the Federal Aviation Administration exempt the landfill from the application of this subsection and the Administrator determines that such exemption would have no adverse impact on aviation safety.289 The statutory prohibition does not apply to MSWLF construction, establishment, modification, or expansion in Alaska or to activities for which FAA will provide an exemption when the agency determines they will have no adverse impact on public safety.290 This statute also does not apply to MSWLF construction, establishment, expansion, or modification when the facility’s construc- tion or establishment commenced prior to April 5, 2000.291 The EPA regulations prescribe requirements related to the statutory MSWLF siting restriction. The EPA regulations require a MSWLF owner or operator pro- posing a new or expanded MSWLF within the FAA- specified separation criteria292 to demonstrate that the facility will not create hazardous conditions for aircraft. The EPA regulations apply to siting of MSWLF facili- ties with the potential to attract hazardous wildlife on or near public-use airports and require MSWLF owners or operators to demonstrate the facilities will not create a “bird hazard” when facilities are located or planned within the FAA-specified separation criteria for public- use airports.293 The regulation states: Owners or operators of new MSWLF units, existing MSWLF units, and lateral expansions that are located within 10,000 feet (3,048 meters) of any airport runway end used by turbojet aircraft or within 5,000 feet (1,524 meters) of any airport runway end used by only piston- type aircraft must demonstrate that the units are de- signed and operated so that the MSWLF unit does not pose a bird hazard to aircraft.294 A “bird hazard” is defined as “an increase in the like- lihood of bird/aircraft collisions that may cause damage 288 49 U.S.C. § 47101, et seq. 289 49 U.S.C. § 44718(d)(1). 290 49 U.S.C. § 44718(d). 291 Apr. 5, 2000, is the effective date of the relevant provi- sion. See 49 U.S.C. § 44718(d)(2). 292 FAA Advisory Circular 150/5200-33B. 293 40 C.F.R. § 258.10. 294 40 C.F.R. § 258.10(a).

41 to the aircraft or injury to its occupants.”295 The written demonstration by the owner or operator that a new, existing, or expanded facility will not create a bird haz- ard to aircraft must be included in the facility’s operat- ing record.296 The facility owner or operator also must provide notice of the proposal to the FAA and the af- fected airport.297 The FAA has provided guidance to airport operators concerning compliance with the federal MSWLF provi- sions. FAA Advisory Circular No. 150/5200-34A— Construction or Establishment of Landfills Near Air- ports (January 26, 2006) states the FAA’s position that locating landfills in proximity to airports increases the risk of collisions between birds and aircraft. To address this concern, the Advisory Circular requires the propo- nent of a new MSWLF to determine whether the new facility would be located within 6 mi from the public airport. If the facility is within the specified distance, the Advisory Circular provides two options for the MSWLF proponent: 1) plan the facility for another loca- tion outside the 6-mi distance, or 2) request that the state aviation agency file a petition for exemption from the FAA requirement. FAA policy describes the agency’s process for review of notices concerning proposed waste disposal facilities. FAA Airport Certification Program—14 C.F.R. Part 139 Program Policy and Guidance Policy No. 82—Waste Disposal Facility Coordination (September 9, 2004) states that pressure to develop new waste disposal fa- cilities or to expand existing sites requires the agency to coordinate responses to ensure consistency. The FAA policy specifies that the responsible regional FAA per- sonnel will determine whether the proposal is compati- ble with applicable FAA Advisory Circulars and with safe airport operations. The FAA policy also provides that the responsible FAA personnel will prepare a writ- ten compatibility determination and any recommended permitting conditions and that the FAA Staff Wildlife Biologist must concur in that determination. The Letter of Determination transmitted to the state aviation agency and/or facility proponent must include all rec- ommended permitting conditions. Airport Planning and Development As described above and in Section V of this digest, the FAA has addressed wildlife hazard planning and development issues concerning airport land-use compatibility through FAA Advisory Circular No. 150/5200-33B—Hazardous Wildlife Attractants On or Near Airports (August 28, 2007) and requirements for land-use compatibility grant assurances. The FAA Advisory Circular provides direction to airport operators concerning avoidance of incompatible land uses within the vicinity of public airports by identifying land uses that may be incompatible with airport operations if located within the specified separation 295 40 C.F.R. § 258.10(d). 296 40 C.F.R. § 258.10(c). 297 40 C.F.R. § 258.10(b). criteria (5,000 ft and 10,000 ft, depending on the type of aircraft served). The Advisory Circular identifies uses such as waste disposal operations, wetland mitigation, artificial marshes, agricultural activities, wastewater treatment facilities, landscaping, wastewater discharge and sludge disposal, and golf courses. The FAA Advisory Circular provisions, which apply to airport development projects (e.g., airport construction, expansion, and renovation) affecting aircraft movement near hazardous wildlife attractants, specify that the provisions are considered mandatory for airports that have received federal grant funding and as guidance for other airports. As described in Section II of this digest, the FAA also has addressed wildlife hazard planning and development issues concerning airport land-use compatibility requirements for grant assurances concerning land-use compatibility. A grant recipient (airport sponsor or non-airport sponsor) must provide the FAA assurances that “appropriate action, including the adoption of zoning laws, to the extent reasonable, to restrict the use of land” in the airport vicinity to “activities and purposes compatible with normal airport operations.”298 These assurances must be included in the FAA grant agreement. This section discusses other aspects of FAA envi- ronmental review of airport planning and development projects from the context of consideration of wildlife hazard management and the environmental review of other federal agencies concerning wildlife hazard man- agement. FAA—Environmental Review and Development Approval The Federal National Environmental Policy Act (NEPA) requires federal agencies to assess the environmental impacts of federal agency action. NEPA specifies that federal agencies must “[U]tilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision making which may have an impact on man’s environment.299 The Council on Environmental Quality (CEQ) regulations implementing NEPA specify that federal agencies are to interpret the NEPA statutory provisions as both a “supplement” to existing agency authority and “a mandate to view traditional policies and missions in the light of NEPA’s “national environmental objectives.”300 NEPA further requires federal agencies to 298 FAA Grant Assurances, Airport Sponsor Certification Section C(21), http://www.faa.gov/airports/aip/grant_ assurances/media/airport_sponsor_assurances_2012.pdf, and Non-Airport Sponsors Undertaking Noise Compatibility Pro- gram Project Certification C(15), http://www.faa.gov/airports/aip/grant_assurances/media/ nonairport_sponsor_assurances.pdf. 299 42 U.S.C. § 4332(2)(A). 300 40 C.F.R. § 1500.6.

42 “consult with and obtain the comments of” any other federal agencies with “special expertise” concerning the particular environmental impact.301 The CEQ regulations require federal agencies to integrate and apply NEPA procedures into agency planning. The regulations specify that agencies must “integrate the NEPA process with other planning at the earliest possible time,” including the study and development of alternatives to proposed action.302 Among other requirements, NEPA requires federal agencies to issue a “detailed statement” (environmental impact statement or EIS) identifying the environmental impacts for any “major” federal action “significantly affecting the quality of the human environment.”303 “Affecting” is defined in the CEQ regulations to mean “will or may have an effect on” and includes consideration of direct effects and indirect effects.304 “Direct effects” are defined as those caused by the action and occurring at the same time and place, while “indirect effects” are those caused by the action but occurring either later in time or farther in the distance, but are still reasonably foreseeable.305 The FAA issued two Orders related to NEPA review of federal actions within its jurisdiction. FAA Order 1050.1E CHG 1, Environmental Impacts: Policies and Procedures (March 20, 2006)306 addresses agency-wide policies and procedures concerning NEPA implementation for all FAA offices and programs. This Agency Order specifies that FAA must comply with both the CEQ regulations and these directives for purposes of NEPA compliance: RELATION TO CEQ REGULATIONS. This order imple- ments the mandate of NEPA, as defined and discussed in the CEQ regulations, within the programs of the FAA. This order is not a substitute for the regulations promul- gated by CEQ, rather it supplements the CEQ regula- tions by applying them to FAA programs. Therefore, all program offices and administration offices shall comply with both the CEQ regulations and the provisions of this order.307 FAA Order 5050.4B, National Environmental Policy Act (NEPA) Implementing Instructions for Airport Actions (April 28, 2006),308 contains the NEPA instruc- tions for implementing airport planning and development projects issued by the FAA’s Office of Airport Planning and Programming. The Airports Order addresses NEPA requirements specifically for agency actions concerning airports and supplements the 301 42 U.S.C. § 4332(2)(C). 302 40 C.F.R. § 1501.2. 303 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1508.11. 304 40 C.F.R. § 1508.3. 305 40 C.F.R. § 1508.8. 306 http://www.faa.gov/documentLibrary/media/order/ energy_orders/1050-1E.pdf. 307 FAA Order 1050.1E § 9. 308 Link available at http://www.faa.gov/regulations_ policies/orders_notices/index.cfm/go/document. information/documentID/14836. Agency Order for NEPA review of “proposed Federal actions to support airport development projects.”309 Therefore, the provisions of the CEQ regulations and the two FAA Orders apply to NEPA review conducted by FAA, which includes airport planning and development projects as well as grants, loans, contracts, leases, certifications, licensing, construction, research, and rulemaking and regulatory actions.310 The FAA may use an Environmental Assessment in a NEPA review to determine the significance of the impact of a proposed action on the human environment.311 The CEQ regulations state that the Environmental Assessment is a “concise statement” that includes, among other information, a brief discussion of alternatives and the environmental impacts of the proposed action and alternatives.312 If the Environmental Assessment concludes that the action will not have significant impacts, a Finding of No Significant Impact (FONSI) is issued with the Envi- ronmental Assessment.313 If the responsible official determines after the Environmental Assessment review that the impact will be significant, and that mitigation will not reduce impacts below applicable significance thresholds, an EIS must be prepared.314 The NEPA process applies to FAA review and approval of Wildlife Hazard Management Plans and actions required to implement those plans. FAA Order 5050.4B § 209 specifies that an FAA grant to fund preparation of a Wildlife Hazard Management Plan and the FAA plan may qualify for a categorical exemption from NEPA review. However, the FAA approval of the airport layout plan implementing provisions of the Wildlife Hazard Management Plan and federal grant approval to implement plan provisions may require preparation of an Environmental Assessment or EIS under NEPA. Development Approvals Federal and State Wildlife Resource Agencies. If an airport development project subject to FAA approval may impact federally listed endangered and threatened species or their critical habitat, the project will be subject to review under the Federal ESA.315 Through the interagency consultation process established by the ESA, the FAA and USFWS or the NMFS will consider whether the proposed action may result in the incidental take of federally listed endangered and 309 FAA Order 5050.4B ch. 1, § 5(b), and ch. 2, § 200(a). 310 FAA Order 1050.1E § 200e. 311 40 C.F.R. § 1508.9. 312 40 C.F.R. § 1508.9. 313 40 C.F.R. § 1508.13; FAA Order 5050.4B, ch. 8, § 800(a). 314 40 C.F.R. § 1501.4; FAA Order 5050.4B, ch. 8, § 800(b). 315 16 U.S.C. § 1531, et seq. See U.S. Fish and Wildlife Ser- vice, “Endangered Species Program,” http://www.fws.gov/endangered/laws-policies/esa.html, and 50 C.F.R. pt. 17, available at http://www.ecfr.gov/cgi-bin/text- idx?c=ecfr&sid=b544b9e8e41033451dd28b75b2538912&tpl=/ec frbrowse/Title50/50cfr17a_main_02.tpl.

43 threatened species or adversely modify listed species’ critical habitat. Section 7 of the ESA requires federal agencies to consult with the federal resource agencies to ensure that agency actions conducted, authorized, or funded by those agencies are not likely to jeopardize the continued existence of listed species or adversely modify designated critical habitats. The ESA includes provisions for agencies and others, including airport operators, to seek authorization of actions that may result in the take of listed species through a permitting process316 or the incidental take statement process.317 The USFWS and NMFS have enacted regulations governing the process for interagency consultation and authorization consistent with the ESA mandates.318 The FAA has issued guidance concerning the approach the agency will take in addressing its ESA consultation requirements. When the FAA requires plan development or revision, the FAA Regional Coordinator will request information from the USFWS concerning the presence of species and critical habitat that are either listed or designated (or proposed for listing or designation) under the ESA on or near the airport property.319 According to this FAA policy, the FAA Regional Coordinator will provide information from the USFWS regarding federally listed species or critical habitat for compliance with the ESA’s interagency consultation requirements.320 The airport operator will use that information in complying with the ESA requirements when seeking authorization for activities on airport property that may affect federally listed species. FAA also has issued guidance concerning the process for evaluating issues associated with state-listed spe- cies’ use of habitat on airport property. This FAA guid- ance describes the procedures for airport operators and FAA certification inspectors to respond to requests by state wildlife agencies to facilitate and encourage habi- tats for state-listed threatened and endangered species or species of special concern occurring on airports that may pose a threat to aviation safety.321 The FAA guid- ance also discusses concerns regarding techniques that may increase wildlife hazards, be inconsistent with safe airport operations, and create a threat to aviation safety. Department of the Army Corps of Engineers. An airport operator whose development projects or activities are required to implement a federally 316 Sec. 10 of the ESA. 317 Sec. 7 of the ESA. 318 16 U.S.C. § 1531, et seq., and 50 C.F.R. pt. 17. 319 FAA Program Policy and Guidance Policy No. 78 Section 7 Consultation on Endangered or Threatened Species (June 21, 2004). 320 16 U.S.C. § 1536. 321 FAA CertAlert No. 06-07 Requests by State Wildlife Agencies to Facilitate and Encourage Habitat for State-Listed Threatened and Endangered Species and Species of Special Concern on Airports (Nov. 21, 2006), http://www.faa.gov/airports/airport_safety/certalerts/. approved Wildlife Hazard Management Plan that may affect wetlands areas must determine whether a U.S. Army Corps of Engineers (Corps) authorization is required. A Corps permit is required generally for work in or the discharge of dredged or fill material in navigable waters, or waters of the United States, respectively. The Corps issues such permits under Section 404 of the Federal Clean Water Act,322 which regulates the discharge of dredged or fill material into waters of the United States, and Section 10 of the Federal Rivers and Harbors Appropriation Act,323 which prohibits obstruction or alteration of navigable waters without a Corps permit. Adverse impacts to the aquatic environment identified during the Corps’ environmental review are offset by mitigation measures. For a Section 404 permit, the proposed activity may be denied or restricted when the Corps determines discharge will have “an unacceptable adverse effect” on wildlife or other resources.324 Among other requirements, the Corps permit appli- cation review will include an alternatives analysis with respect to the proposed discharge to “waters of the United States.”325 This review will consider whether there is a “practicable alternative” to the proposed dis- charge, which is defined as one that has less adverse impact on the aquatic ecosystem and does not have other significant adverse environmental conse- quences.326 The impacts considered in this evaluation include impacts to wildlife, including federally listed species and the resident and transient wildlife (mam- mal, birds, reptiles, and amphibians) associated with aquatic ecosystems.327 Migratory Bird Treaty Act. The airport operator may require federal approvals for development projects and/or Wildlife Hazard Management Plan implement- ing measures when these activities may result in take of federally protected migratory birds. The Federal MBTA328 establishes a program for the protection of migratory birds included in international conventions the United States has entered into with Great Britain, Mexico, Japan, and Russia. The MBTA prohibits ac- tions to “pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase,” or to transport or receive a migra- tory bird covered by the terms of the statute. The MBTA prohibition also applies to any part, nest, or egg of any covered migratory bird. The MBTA authorizes the adoption of regulations specifying the circumstances in which “take” of a migratory bird, nest, part, or egg may be authorized by permit or other means under the 322 Pub. L. No. 92-500, 86 Stat. 816 (1972), codified at 33 U.S.C. § 1344. 323 30 Stat. 1151 (1899), codified at 3 U.S.C. § 403. 324 33 U.S.C. § 1344. 325 40 C.F.R. § 230.10(a). 326 Id. 327 40 C.F.R. §§ 230.30–230.32. 328 Codified at 16 U.S.C. §§ 701–712.

44 statute.329 Unpermitted actions that result in take, and other violation of the statutory prohibition, may result in criminal penalties, including imprisonment of up to 6 months and a fine of up to $15,000.330 The USFWS has adopted permit regulations for au- thorizations issued pursuant to MBTA.331 The actions prohibited under the MBTA are barred unless author- ized by permit issued by the USFWS consistent with these regulations.332 The regulations provide for specific types of permits, including permits for import and ex- port, banding and marking, scientific collection, special purpose, and falconry.333 The MBTA regulations also provide for issuance of permits to state wildlife agencies for Canada geese management and control activities when the USFWS determines the permit “will contrib- ute to human health and safety, protect personal prop- erty, or allow resolution or prevention of injury to peo- ple or property.”334 The MBTA regulations include specific take authori- zation for control and management of resident Canada geese at airports and military airfields.335 The regula- tion specifies that the permit will be issued to the air- port “when necessary to resolve or prevent threats to public safety” from Canada geese. The regulations spec- ify the permit requirements and the timing of the air- port’s permitted activities. The permit may authorize lethal and nonlethal control actions, including trapping, relocation, nest and egg destruction, shooting, egg oil- ing, and use of nets and pesticides or drugs. The regula- tions, however, specify that this permit does not author- ize the airport operator to take actions that adversely affect other migratory birds or species listed as endan- gered or threatened under the Federal ESA.336 Bald and Golden Eagle Protection Act. The Federal BGEPA establishes a program for protection of bald eagles and golden eagles.337 With certain exceptions as authorized by a USFWS permit, BGEPA prohibits any take, possession, sale, purchase, barter, transport, ex- port, or import of a bald eagle or any of its parts, nests, or eggs.338 The term “take” is defined in the statute to include “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb.”339 Violations of the BGEPA prohibitions can result in significant crimi- nal and civil penalties.340 329 16 U.S.C. § 704. 330 16 U.S.C. § 707. 331 50 C.F.R. pt. 21. 332 50 C.F.R. § 21.11. 333 50 C.F.R. §§ 21.21–21.29. 334 50 C.F.R. § 21.26. 335 50 C.F.R. § 21.49. 336 Id. 337 Pub. L. No. 86-70, et al., 54 Stat. 250, et al. (1940), codi- fied at 16 U.S.C. § 668, et seq. 338 16 U.S.C. § 668(a). 339 16 U.S.C. § 668(d). 340 16 U.S.C. § 668(a). The USFWS has adopted regulations to authorize actions that may result in take. The BGEPA regula- tions authorize take for actions consistent with the statute, including scientific collection or exhibition, In- dian religious purposes, and depredation.341 The regula- tions specify that the permit may be issued if the USFWS determines the take is “compatible with the preservation” of the eagle. This determination requires the USFWS to consider whether the eagles have “be- come seriously injurious” to wildlife or other interests in the locality. The USFWS also must determine that the injury related to the eagles is “substantial” or that the eagles “pose a significant risk to human or eagle health and safety.”342 After the delisting of the bald eagle under the Fed- eral ESA, the USFWS adopted regulations to authorize take that previously had been or could be authorized under the ESA.343 The BGEPA regulations provided a process for permitting an ESA-authorized activity when the activity is conducted in “full compliance” with the terms and conditions of the ESA Section 7 incidental take statement.344 The BGEPA regulations also author- ize issuance of either individual or programmatic per- mits for take associated with but not the purpose of an activity.345 A permit may be issued under BGEPA when the USFWS determines the take is compatible with eagle preservation, with consideration given to indirect and cumulative effects of other permitted take, and necessary to protect a legitimate interest in a particular locality. The BGEPA rules make permitting of take re- lated to safety emergencies the highest priority and prioritize other types of take that may be associated with airport operations, including nonemergency activi- ties required to ensure public health and safety and renewal of programmatic take permits. The BGEPA rules also require the USFWS to determine whether the permit applicant has provided avoidance and minimiza- tion measures to reduce take to “the maximum degree practicable”; for programmatic take, the permit appli- cant also must demonstrate the take is “unavoidable despite application of advanced conservation practices” developed with USFWS coordination.346 VIII. AIRPORT LAND-USE COMPATIBILITY AND STATE WILDLIFE MANAGEMENT CONSIDERATIONS States have addressed general and specific issues concerning airport land-use compatibility through laws, regulations, and guidance. The issue of land- use compatibility includes general consideration of the compatibility of surrounding land uses with airport operations and an evaluation of the variety of potential 341 50 C.F.R. § 22.23. 342 Id. 343 50 C.F.R. § 22.28. 344 Id. 345 50 C.F.R. § 22.26. 346 50 C.F.R. § 22.28(e).

45 impacts of those airport operations that may affect land uses in the airport vicinity. Some relevant considera- tions include the development’s design and construction standards, noise, air quality, water quality, traffic im- pacts, environmental issues, and the broad concept of environmental justice. In addition to the direct application to airport de- velopment and planning as described in this section, state land use development and compatibility standards may be incorporated into federal considerations through the FAA grant funding process. This process is described in Section II of this digest. As dis- cussed in Section II, an airport sponsor may apply for federal grant funding of an airport planning or devel- opment project through the Federal AIP and other grant programs, such as the Federal Aid to Airports Program and the Airport Development Aid Program. Under fed- eral law, the FAA may approve a grant application for an airport development project only if the airport project grant recipient provides the 21 general writ- ten assurances associated with airport operations speci- fied in the statute.347 The assurances are incorporated within an agreement submitted with the grant applica- tion and become part of the final grant offer when ap- proved. The FAA will require compliance regarding an airport sponsor's performance in connection with grant agreements for airport development, plan- ning, and noise compatibility program grants.348 The duration of the grant assurances may vary depending on the type of grant recipient or facility being developed with the grant funding. Federal law specifies that the agreement incorpo- rated within the application of an airport sponsor, or of a state applying for grant funding on behalf of one or more airports, must include assurances concerning compliance with development standards.349 The federal statute specifies that the proposed development must comply with FAA-prescribed development standards, including “standard for site location, airport layout, site preparation, paving, lighting, and safety of approaches.”350 Federal law allows the FAA to apply state development standards for purposes of the required assurances under certain circumstances: State Standards for Airport Development.—The Secre- tary may approve standards (except standards for safety of approaches) that a State prescribes for airport devel- opment at nonprimary public-use airports in the State. On approval under this subsection, a State’s standards apply to the nonprimary public-use airports in the State instead of the comparable standards pre- scribed by the Secretary under subsection (b)(3) of this section. The Secretary, or the State with the ap- proval of the Secretary, may revise standards ap- proved under this subsection.351 347 49 U.S.C. § 47107. 348 49 U.S.C. § 47105. 349 Id. 350 49 U.S.C. § 47105(b). 351 49 U.S.C. § 47105(c). The required federal assurances are incorpo- rated within an agreement submitted by the sponsor with the grant application and become part of the final grant offer when approved.352 Many states have responded to the airport hazard problem by establishing a system for development and enforcement of airport zoning regulations. The FAA issued guidance concerning development of airport zon- ing regulations to address airport hazards in areas sur- rounding airports, and state laws commonly reflect the considerations provided by the model ordinance incor- porated within that guidance.353 State airport zoning laws, and the state or local regulations implementing those laws, generally are designed to target a specified area within the vicinity of the airport, commonly re- ferred to as an “airport hazard area” or similar designa- tion. State laws may authorize or require local govern- ments with airports or airport hazards areas within their jurisdictions to initiate development of airport zoning regulations to specifically address and respond to creation and establishment of airport hazards. These state laws frequently provide for appointment of an airport zoning commission or similar body to develop recommendations for the initial airport zoning regula- tory program and to specify procedures for the local government to adopt and amend these regulations. State laws also commonly prescribe a process for crea- tion of a joint airport zoning board or joint airport au- thority to develop regulations when airport or airport hazard areas are located within different jurisdictions. Other common provisions in airport zoning regula- tions include identification of permitted and prohibited land uses within airport hazard areas and height re- strictions of structures and objects of natural growth (commonly defined as “tree” in state airport zoning laws) within these areas and establishment of a permit- ting system to authorize uses within these designated areas. In addition, state statutes generally provide for local regulations to recognize and not interfere with nonconforming uses existing at the time the regu- lations were adopted, provided those uses are not re- placed or substantially repaired or altered after the regulations are enacted. Further, the airport zoning statutes frequently address the standards and require- ments for approving variances for uses that cannot comply with the regulations, and replacement or sig- nificant changes to existing nonconforming uses. A comprehensive discussion of states’ ap- proach to airport land-use compatibility consid- erations is beyond the scope of this digest. Instead, this section of the digest will focus on state laws promoting compatible land use in the vicinity of 352 49 U.S.C. § 47105. 353 FAA Advisory Circular 150/5190-4A—A Model Zoning Ordinance to Limit Height of Objects Around Airports (Dec. 14, 1987), accessible at http://www.faa.gov/regulations_ _policies/advisory_circulars/index.cfm/go/document.list/parentT opicID/11/display/all/changeNumber/0/currentPage/11 /sortResults/false/sortColumn/dateIssued/sortOrder/DESC.

46 airports that directly relate to safety considerations associated with wildlife hazards and wildlife manage- ment. This section will not identify or address all state environmental land use or other laws that may affect wildlife management (e.g., wetlands) through the estab- lishment and operation of airports or any airport land - se compatibility considerations that are not directly related to wildlife management or wildlife hazards. This section of the digest briefly summarizes the categories of state laws that may promote airport land- use compatibility, including specifically airport zoning, land use, and response to airport hazards in the vicinity of airport operations. This section does not identify each applicable state law; rather, the section provides a de- scription and some examples of the common approaches states take to regulate and respond to airport hazards within their jurisdictions. Appendix D of this digest identifies the state laws concerning airport land-use compatibility laws that fall within these catego- ries. The summary of the laws identified in Ap- pendix D and provided in this section are based on the versions of the state statutes and regulations available through the applicable state Web sites (as of March 2012) and may not reflect the most recent legis- lative changes to these laws. Airport Hazards As discussed in Section VI, many states have recog- nized the scope of the airport hazard problem through statements of legislative intent and purpose in airport regulation statutes. Some state laws describe the na- ture and scope of the problems associated with wildlife hazards and identify the state interests served by elimination and reduction of these hazards. A common approach by states is to declare the creation or estab- lishment of an airport hazard a public nuisance and a public injury to the community served by an airport. As discussed below in more detail, many states have responded to the airport hazard problem by estab- lishing a system for development and enforcement of airport zoning regulations generally designed to target a specified “airport hazard area” and to identify land uses and height restrictions appropriate for uses within this designated area. While not directly related to the issues of wildlife management, these airport zoning laws (described in this section and identified in Appendix D) address issues associated with land uses and other features (e.g., trees and other vegetation) that may attract hazardous wildlife to or near air- port property and frequently provide mecha- nisms to enforce zoning regulations with penalties to deter the establishment or maintenance of land uses and vegetation likely to attract hazardous wild- life. As discussed in Section VI, airport zoning laws de- fine airport hazards for purposes of the regulatory structure established for the areas around airports. Generally, state definitions of “airport hazard” com- monly focus on the effects of structures, objects of natural growth (trees and other vegetation), and land uses that may affect the navigable airspace, and, there- fore, impact aircraft operations. Other states more di- rectly address the dangers associated with these im- pacts (e.g., creates a dangerous condition for life or property). Finally, other states use zoning laws to define areas that may affect aircraft operations when an airport hazard is present or established there (e.g., airport hazard area, airport safety zone). Airport Zoning Regulations Many states address airport land-use compatibility through zoning. A main focus of these types of regula- tions is identification and prevention of airport hazards within a designated airport hazard area. Common state definitions of those terms are provided above and in Section V and Appendix F of this digest. Development of Regulations State law may authorize or require local govern- ments in which an airport hazard area is located (in whole or in part) to adopt, administer, and enforce airport zoning regulations for that area. A common state law approach is to provide for the airport hazard area to be divided into zones. The state law may then specify that the local airport zoning regulations will prescribe permitted and prohibited land uses within the specified zones and height limitations or restric- tions for structures or objects of natural growth within the airport hazard area and within the specific zones.354 For example, Montana law includes specific direction for designation of the area surrounding the airport subject to the airport zoning regulations and for establishment of permitted and compatible uses within the area. The Montana statute states in relevant part: (2) Airport affected area regulations may: (a) designate the airport or airports that are subject to the regulations, with a description of existing and future runways and approaches; . . . (c) describe the airport affected area by referencing maps and describing existing airport hazards and natural terrain that intrude into the airport affected area; (d) designate and describe zones within the airport af- fected area, along with the height limitations for struc- tures and trees within each zone, considering local con- ditions and needs, as well as the notice requirements and obstructions standards provided in 14 CFR, part 77; (e) show the contours for decibel levels of 65 YDNL or greater on the maps that designate an airport af- fected area, if a study has been conducted pursuant to 14 CFR, part 150, and require that information to be considered by anyone who builds within the airport af- fected area; (f) specify permitted and conditional uses within each zone of the airport affected area by addressing: 354 MONT. CODE ANN. § 67-7:203 (2011).

47 (i) incompatible land uses, such as uses for residences, schools, hospitals, day-care centers, or other concentrations of people indoors or outdoors; (ii) the land uses that are considered incompatible with certain noise levels, as provided in 14 CFR, part 150; (iii) bird attractants such as solid waste disposal sites and lagoons; (iv) sources of electromagnetic radiation that may interfere with electronic navigational aids; (v) lights other than navigational aids that glare upward or shine on or in the direction of the airport; and (vi) the national transportation safety board's accident investigation data in the vicinity of airports and spe- cific accident data for a particular airport, if that in- formation is available; …. (h) provide for an inventory of existing land uses, structures, and trees within the airport affected area;.355 State laws frequently identify considerations for local government development and adoption of airport zoning regulations. These may include the character of ex- pected flying operations, the nature of the terrain within the designated airport hazard area and sur- rounding the airport, the character of the neighborhood in the airport vicinity, and existing and future land uses within the airport hazard area.356 Regulatory Authority States differ in the scope of state involvement in and direction regarding the development and enforcement of airport zoning regulations. New Jersey law provides for an active state role, directing the department of transportation to adopt regulations establishing the methodology for delineating airport safety zones for all affected airports in the state. The New Jersey law also provides for the department of transportation to specify standards for permitted and prohibited land uses within airport safety zones. Local airport safety zones and regulations in New Jersey must conform to this state agency’s standards.357 Rhode Island law takes a similar approach in directing the Rhode Island Airport Corporation to adopt an airport airspace plan that, among other items, must specify circumstances in which structures or trees could constitute airport haz- ards and identify the area for which airspace protection measures must be taken.358 Other states direct local governments to adopt air- port zoning regulations consistent with the general statutory directive. For example, South Dakota law states local governments are to adopt the regulations implementing the state plan for protec- 355 MONT. CODE ANN. § 67-7:203 (2011). 356 See, e.g., ARIZ. REV. STAT. ch. 28 (Airport Zoning). 357 N.J. STAT. §§ 6:1-80 through 6:1-88. 358 R.I. GEN. LAWS ch. 1-3. tion of airport approaches: Local zoning enforcement of approach plan. Each munici- pality, county, or other political subdivision having within or without its territorial limits an area within which, ac- cording to an airport approach plan adopted by the com- mission, measures should be taken for the pro- tection of airport approaches, shall adopt, administer, and enforce, under the police power and in the manner and upon the conditions prescribed by this chapter, airport zoning regulations applicable to the area.359 Other states direct the affected local govern- ments to develop local regulations to prevent the crea- tion or establishment of airport hazards within desig- nated areas. For example, Tennessee law provides: In order to prevent the creation or establishment of air- port hazards, every municipality or county having an air- port hazard area within its territorial limits shall adopt, administer and enforce, under the police power and in the manner and upon the conditions prescribed in this chap- ter, airport zoning regulations for such airport hazard area, which regulations may divide such area into zones, and, within such zones, specify the land uses permitted and prohibited and regulated and restrict the height to which structures and trees may be erected or allowed to grow; provided, that these regulations are solely for the purposes of preventing airport hazards.360 This local regulatory authority may be exercised by the county or city in which the airport or airport hazard area is located. Alternatively, the local government may establish a joint zoning board or authority with an af- fected local government when the airport hazard area for an airport owned or controlled by a local government is wholly or partially outside the jurisdic- tion of the local government.361 State laws specify the requirements and proce- dures for initial development of airport zoning regu- lations. State law may require a local government to appoint an airport zoning commission, or to desig- nate an existing governmental body to serve as the commission, for the purpose of making recommen- dations on the contents of the airport zoning regula- tions.362 State laws also prescribe the procedures for adoption, amendment, and enforcement of airport zon- ing regulations.363 Permits, Nonconforming Uses, and Variances State airport zoning laws may require state or lo- cal permits for establishment of new structures or uses within an airport hazard area. These laws also may require a permit to authorize changes in existing uses or the grant of a variance if new uses or changes to existing uses will result in a conflict with the airport 359 S.D. CODIFIED LAWS § 50-10-5. 360 TENN. CODE ANN. § 42-6-103 (2012). 361 See, e.g., WASH. REV. CODE § 14.12.030. 362 See, e.g., CAL. GOV’T CODE § 50485.6—airport zoning commission to recommend zone boundaries and regulatory provisions. 363 See, e.g., ARIZ. REV. STAT. ch. 28, Airport Zoning.

48 zoning regulations. State laws also may address the status of nonconforming uses within the airport hazard area and the effect of significant changes to these uses. North Carolina law provides an example of the treatment of these issues. The North Carolina Model Airport Zoning Act provides for a local permit system to authorize establishment or construction of new struc- tures or uses, including substantial changes to or re- placement of nonconforming structures: (a) Permits. Where advisable to facilitate the enforcement of zoning regulations adopted pursuant to this Article, a system may be established by any politi- cal subdivision for the granting of permits to establish or construct new structures and other uses and to replace existing structures and other uses or make sub- stantial changes therein or substantial repairs thereof. In any event, before any nonconforming structure or tree may be replaced, substantially altered or repaired, rebuilt, allowed to grow higher, or replanted, a permit must be secured from the administrative agency author- ized to administer and enforce the regulations, authoriz- ing such replacement, change or repair.364 North Carolina law prohibits issuance of a per- mit for the nonconforming use if the permit “would allow the structure or tree in question to be made higher or become a greater hazard to air naviga- tion than it was when the applicable regulation was adopted.” Further, the North Carolina law imposes restrictions or requires removal when a non- conforming use has been determined to be abandoned or substantially destroyed or deteriorated: Whenever the administrative agency determines that a nonconforming structure or tree has been abandoned or more than eighty percent (80%) torn down, destroyed, deteriorated, or decayed: (i) no permit shall be granted that would allow said structure or tree to ex- ceed the applicable height limit or otherwise deviate from the zoning regulations; and (ii) whether application is made for a permit under this paragraph or not, the said agency may by appropriate action compel the owner of the nonconforming structure or tree, at his own expense, to lower, remove, reconstruct, or equip such object as may be necessary to conform to the regulations or, if the owner of the noncon- forming structure or tree shall neglect or refuse to comply with such order for 10 days after notice thereof, the said agency may proceed to have the object so lowered, removed, reconstructed, or equipped.365 Arkansas law establishes the percentage for destruc- tion or deterioration of a nonconforming use at 50 per- cent.366 North Carolina law specifies that in circum- stances other than those described above, the permit will be granted. North Carolina law also specifies that airport zoning regulations may not require re- moval, lowering, or other change of any nonconforming structure or natural growth or otherwise interfere 364 N.C. GEN. STAT. § 63-32. 365 N.C. GEN. STAT. § 63-32. 366 ARK. CODE 14-363-206. with the continuation of the use.367 Some state statutes specify that a variance may be conditioned on installation and maintenance of markers and lights to identify the presence of airport hazards. For example, Nebraska law speci- fies that the variance may be conditioned on the property owner consenting to the installation and maintenance of this equipment: In granting any permit or variance…, the administrative agency or board of adjustment may, if it deems such action advisable to effectuate the purpose o f [ the a i rpor t zon ing laws ]…and reasonab le in the circumstances, so condition such permit or variance as to require the owner of the structure or tree in question to permit the political subdivision, at its own expense, to install, operate and maintain thereon such markers and lights as may be necessary to indicate to flyers the presence of an airport hazard.368 The Nebraska law specifies that the markers and lights will be installed, operated, and maintained at government expense; some other states incorporate this approach, while others impose this expense on the property owner as a condition of the variance. Relationship to Other Laws State laws providing for adoption of airport zoning laws commonly address the relationship of these air- port-specific zoning regulations with comprehensive zoning and other regulations. Alabama law specifies that the airport zoning regulations may be incorporated into the comprehensive zoning ordinance: Incorporation.—In the event that a political subdivision has adopted, or hereafter adopts, a comprehensive zoning ordinance regulating, among other things, the height of buildings, any airport zoning regu- lations applicable to the same area or portion thereof may be incorporated in and made a part of such compre- hensive zoning regulations and be administered and en- forced in connection therewith.369 Alabama law also specifies that the more stringent limitation or requirement will govern in the event of a conflict between an airport zoning regulation and another regulation applicable to the airport hazard area: Conflict.—In the event of conflict between any airport zoning regulations adopted under this chapter and any other regulations applicable to the same area, whether the conflict be with respect to the height of structures of trees, the use of land or any other matter, and whether such regulations were adopted before or after the airport zoning regulations or by some other political subdivision, the more stringent limitation or requirement shall govern and prevail.370 Arizona law includes similar provisions to the 367 N.C. GEN. STAT. § 63-31. 368 NEB. REV. STAT. § 3-313 (citations omitted). 369 ALA. STAT. § 4-16-15. 370 Id.

49 Alabama law.371 Acquisition of Property State laws may provide for the state or for affected local governments to acquire property and property interests (e.g., easements) for the purposes of promoting airport land-use compatibility and of eliminating or reducing airport hazards. Under California law, state and local governments have the authority to acquire property by condemnation or other means for such purposes: Any person authorized to exercise the power of eminent domain for airport purposes may provide, by purchase, gift, devise, lease, condemnation, or otherwise, for the removal or relocation of any airport hazard or the re- moval or relocation of all facilities, structures, and equipment that may interfere with the location, expan- sion, development, or improvement of the airport and other air navigation facilities or with the safe approach thereto and takeoff therefrom by aircraft. Any person act- ing under authority of this section shall pay the cost of such removal or relocation.372 Hawaii law includes a specific provision for the state transportation agency to acquire air rights in order to protect an airport approach or remove or lower a nonconforming use: Acquisition of air rights. When (1) it is desired to remove, lower, or otherwise terminate a nonconforming structure or use; or (2) the approach protection necessary cannot, because of constitutional limitations, be provided by air- port zoning regulations under this chapter; or (3) it ap- pears advisable that the necessary approach protection be provided by acquisition of property rights rather than by airport zoning regulations, the director of transportation on behalf of the State may acquire, by purchase, grant, or condemnation…such air right, aviation easement, or other estate or interest in the property or nonconforming structure or use in question as may be necessary or proper to effectuate the purposes of this chapter, includ- ing acquisition of a fee simple estate.373 Other states authorize local government acquisi- tion of property interests, specifically including air rights, for similar purposes.374 371 See, e.g., ARIZ. REV. STAT. § 28-8466 (more stringent limitation or requirement governs in the event of conflict be- tween the airport zoning regulation and other regulations (even those adopted by a government other than the one enact- ing the airport zoning regulation) concerning the height of structures or trees, land uses, or other matters). 372 CAL. PUB. UTIL. CODE § 21653. 373 HAW. REV. STAT. § 262-11. 374 See, e.g., NEB. REV. STAT. § 3-203 through 3-205.