Guidebook of Practices for Improving Environmental Performance at Small Airports (2010)

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49 CHAPTER 6 Planning and Development Planning and development can be challenging for small airports due to the complexity of environmental regulations and the limited personnel and/or resources available to aid in this process. Various natural and cultural resources in the airport area may need to be considered in the planning and development process. For example, the redevelopment of an aircraft hangar facility dating back to the 1940s may be affected by historic preservation regulations. Or, a recommended development program identified during the Airport Master Planning process may trigger the need for environmental evaluations under the National Environmental Policy Act of 1969, as amended (NEPA). Proactive environmental stewardship activities can also be considered during the planning and development phase to assist with effective airport project implementation. The federal requirements applicable to planning and development include the following: • National Historic Preservation Act of 1966, as Amended (NHPA) • U.S. Department of Transportation (U.S.DOT) Act of 1966 • Archeological and Historic Preservation Act of 1974, as Amended (AHPA) • Archeological Resources Protection Act of 1979, as Amended (ARPA) • American Indian Religious Freedom Act of 1978 (AIRFA) • Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) • Executive Order 13175, Consultation with Indian Tribal Governments (2000) • NEPA • Council on Environmental Quality (CEQ) Regulations for Implementing NEPA • FAA Order 1050.1E, Change 1 Environmental Impacts: Policies and Procedures (March 2006) • FAA Order 5050.4B, NEPA Implementing Instructions for Airport Actions (April 2006) • Comprehensive Environmental Response, Compensation and Liability Act of 1980, as Amended (CERCLA) • Endangered Species Act of 1973 • Magnuson-Stevens Fishery Conservation and Management Act of 1976, as Amended • Marine Mammals Protection Act of 1972 • Migratory Bird Treaty Act of 1918 • Executive Order 13186, Responsibilities of Federal Agencies to Protect Migratory Birds (2001) • Bald Eagle and Golden Eagle Protection Act of 1940, as Amended The topics presented in Chapter 6 include: • Historical, Archaeological, and Ethnological Resources • Environmental Protection • Property Transfer Related Information See Chapter 7 for additional information about the Clean Water Act, which may also apply to planning and development activities at small airports.

50 Guidebook of Practices for Improving Environmental Performance at Small Airports • Public Involvement • Fish, Wildlife, and Plants 6.1 Historical, Archaeological, and Ethnological Resources National Historic Preservation Act of 1966, as Amended NHPA is the national policy on the preservation of historic properties. NHPA created the Advisory Council on Historic Preservation (ACHP) to advise the President and Congress on matters involving historic preservation and established the National Register of Historic Places (NRHP). The ACHP is authorized to review and comment upon activities licensed, permitted, or funded by the federal government that would have an effect upon properties either listed in the NRHP or eligible for inclusion. A property (including sites, buildings, or objects) may be considered for eligibility on the NRHP once it is 50 years old. Section 110 governs agencies’ responsibilities to preserve and use historic buildings, designate an agency Federal Preservation Officer (FPO), and identify, evaluate, and nominate eligible properties to the NRHP. Section 106 requires federal agencies to consider the potential effects of their undertaking on properties in or eligible for inclusion in the NRHP. Section 106 also requires agencies to consult with ACHP, the State Historic Preservation Officer (SHPO), and/or Tribal Historic Preservation Officer (THPO) if there is a potential adverse effect to historic properties in or eligible for inclusion in the NRHP. NHPA replaced the Antiquities Act of 1906 with respect to establishing permitting and prosecution regulations for cultural resources. Small Airport Applicability Airport projects (called undertakings) that receive federal funding or that require a federal permit or license are subject to Section 106. Historic properties that may be affected by the proposed undertaking must be identified and evaluated to determine whether they are either already listed in the NRHP or eligible for inclusion. The responsible FAA official must consult with the appropriate officials (SHPO, THPO) and other interested parties, known as consulting parties, regarding the effects of their proposed undertaking on historic properties. The comments of the consulting parties must be considered in decision-making in the Section 106 process. Alternatives to undertakings that may have an adverse effect on historic properties need to be explored, although not in as rigorous a manner as that required by Section 4(f) of the U.S.DOT Act of 1966. If an adverse effect is agreed upon by all consulting parties through the consultation process, then a Memorandum of Agreement is prepared and signed which contains measures to mitigate the project’s adverse effects. Associated Activities • Demolition/ construction/ development • Property acquisition Helpful Hint Redeveloping in areas previously built upon preserves both the natural and cultural resources. For more information, refer to Planning-3 Practice in Appendix A-11.

Planning and Development 51 Compliance Attainment Strategies • Be aware of the age and possible historic significance of buildings and structures on the airport property; collect relevant information from the SHPO and local historic preservation organization. • Understand possible archaeological sensitivity through a site file search at the SHPO and at county or local historical commissions or agencies. • Understand the steps in Section 106 (identify if the project requires Section 106, identify and evaluate historic properties, evaluate the effects, and consider possible alternatives to avoid, minimize, or mitigate the effects). • Understand the consultation process of Section 106. Key Terms • Historic Property—“Any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in the NRHP” (36 Code of Federal Regulations (CFR) Section 800.16). Additional Resources • NHPA, as Amended http://www.achp.gov/nhpa.html • American Antiquities Act of 1906 http://www.nps.gov/history/local-law/anti1906.htm • Executive Order 11593, Protection and Enhancement of the Cultural Environment http://www.archives.gov/federal-register/codification/executive-order/ 11593.html United States Department of Transportation Act of 1966 Section 4(f) of the U.S.DOT Act of 1966 applies to historic properties of national, state, and/or local significance. Historic properties can either be individually listed or individually eligible for the NRHP or a contributing resource in a listed or eligible district. Section 4(f) states that the Secretary of the U.S.DOT may approve a transportation program or project (other than any project for a park road or parkway under Section 204 of Title 23) that would require the use of publicly owned land, public parks, recreation areas, wildlife and waterfowl refuges, or historic sites of national, state, or local significance (as determined by federal, state, or local officials having jurisdiction over the site) only if there is no prudent and feasible alternative to using that land. Additionally, the program or project must include all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from its implementation. Where federal lands are administered for multiple uses, the federal official having jurisdiction over the lands shall determine whether the subject lands are being used for historic purposes. The initial assessment will determine whether the requirements of Section 4(f) are applicable.

52 Guidebook of Practices for Improving Environmental Performance at Small Airports Small Airport Applicability A direct or indirect use of a Section 4(f) resource may occur as a result of airport development. The term “use” within the meaning of Section 4(f) includes the direct impacts to the site (such as taking of land) as well as indirect impacts (constructive uses). When constructive uses are being evaluated, FAA must determine if the indirect impacts would substantially impair the resource. Substantial impairment occurs when the resource’s activities, features, or attributes that contribute to its significance or enjoyment are substantially diminished. The responsible FAA official must consult with the appropriate officials (federal, state, and local) having jurisdiction over the affected properties when determining whether project-related noise impacts would substantially impair a property. If there are no constructive or direct uses, then Section 4(f) of the U.S.DOT Act of 1966 would not apply. Section 4(f) would not apply to historic properties if the FAA issues a finding of No Historic Properties Affected or No Adverse Effects under Section 106 of the NHPA. If FAA determines that Section 4(f) applies for a particular property and there are no prudent or feasible alternatives that would avoid the use of the property, the effect on the property must be described in detail, including measures needed to minimize the impact or harm. Mitigation measures could include the replacement of lands and facilities or design measures such as plantings or screening. Compliance Attainment Strategies • Consider Section 4(f) implications of planning future development actions near historic and public park resources. • Consider Section 4(f) when considering the development of park resources on airport property. Development of public parks on airport property may limit future airport-related development opportunities in the area due to Section 4(f). Key Terms • Constructive Use—Indirect uses of a property/resource that result in substantially impairing the activities, features, or attributes of a resource that qualifies under Section 4(f) of the U.S.DOT Act of 1966. • Direct Use—Direct impacts to a property/resource, such as taking of land, that qualifies under Section 4(f) of the U.S.DOT Act of 1966. Additional Resources • U.S.DOT Act of 1966 http://www.environment.fhwa.dot.gov/4f/index.asp • Federal Highway Administration, Office of Planning, Environment and Realty, Section 4(f) Policy Paper http://www.environment.fhwa.dot.gov/4f/4fpolicy.asp • Maryland State Highway Administration, Section 4(f) Interactive Training http://www.section4f.com/ Developing a Cultural Resources Management Plan and Unanticipated Discovery Plan is a proactive and time- efficient approach to cultural resources management that aids during the development of airport projects. For more information, refer to Planning-10 and Planning-11 Practices in Appendix A-11. Did You Know These standards apply to all proposed grant-in- aid development projects assisted through the National Historic Preservation Fund. Helpful Hint

Planning and Development 53 Archeological and Historic Preservation Act of 1974, as Amended The AHPA provides for the preservation of historic American sites, buildings, objects, and antiquities of national significance by requiring survey, recovery, and preservation of historical and archeological data which might otherwise be irreparably lost or destroyed as the result from the alteration of the terrain caused as a result of any federal construction project or federally licensed or funded activity or program. Alterations of terrain mentioned in the AHPA include flooding, the building of access roads, and the relocation of railroads and highways. The AHPA requires an agency to notify the Secretary of the Interior (Secretary) when its activities, in connection with any federal construction project or federally licensed project, activity, or program (such as an FAA- funded airport project), may cause irreparable loss or destruction of significant scientific, prehistorical, historical, or archeological data. The agency may request the Secretary to undertake the recovery, protection, and preservation of such data (including preliminary survey, or other investigation as needed, and analysis and publication of the reports resulting from such investigation), or it may undertake such activities itself. Copies of reports of any investigations must be submitted to the Secretary and subsequently be made available to the public for review. No survey or recovery work would be required if, in the determination of the head of the responsible agency, activities would be undertaken in connection with any emergency including projects or activities undertaken in anticipation of, or as a result of, a natural disaster. 36 CFR Part 68 sets forth standards for the treatment of historic properties containing standards for preservation, rehabilitation, restoration and reconstruction. Small Airport Applicability AHPA is applicable when federal lands are involved, when federal funding is used, or when federal permits are required for construction actions and it is commonly cited in conjunction with NHPA. The Archaeological and Historic Preservation Act of 1974 provides specific relief from survey and recovery work in the event of natural disasters and with the approval of FAA. Compliance Attainment Strategies • Follow the attainment strategies outlined for NHPA. • In the event of an emergency and its associated activities, notify the airport’s FAA point of contact of the nature of the emergency and the procedural steps that cannot be implemented because of the emergency. Additional Resources • Archaeological and Historic Preservation Act of 1974, as Amended http://www.thecre.com/fedlaw/legal13/archpreserv.htm

54 Guidebook of Practices for Improving Environmental Performance at Small Airports Archeological Resources Protection Act of 1979, as Amended ARPA prohibits unauthorized excavation of archaeological resources on federal or Indian lands, establishes permit standards for survey and excavation of archaeological sites on these lands, and increases the severity of penalties for the destruction of archaeological resources located on public lands. ARPA requires federal agencies to identify archaeological sites on public lands. Public lands are defined as lands owned and administered by the United States as part of the national park system, the national wildlife refuge system, the national forest system, and all other lands where fee title is held by the United States. Small Airport Applicability Airports that are located within or adjacent to these types of public lands must consider the permit requirements authorizing excavation and/or removal of archaeological resources under ARPA. Compliance Attainment Strategies • Ensure all necessary permits have been obtained prior to excavation. • Coordinate actions with the park, refuge, or public lands manager to ensure that uniform recommendations are made for resources which may be jointly held. Additional Resources • ARPA, as Amended http://archnet.asu.edu/Topical/CRM/usdocs/arpa79.html American Indian Religious Freedom Act of 1978 Small Airport Applicability If objects having religious or cultural importance are discovered during development or other federally funded or permitted activity, the airport operators must notify Indian tribes of possible harm to, or destruction of, sites. Compliance Attainment Strategies • Prior to the activity, know who to contact in case objects of importance are found. AIRFA was established to protect and preserve the American Indians’ inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians. This includes but is not limited to, access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites. AIRFA applies to any project that is federally permitted or funded or that is located on federal land.

Planning and Development 55 Key Terms • Sacred Objects—Specific ceremonial objects that are needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present day adherents. Additional Resources • 42 U.S.C. 1996 http://vlex.com/vid/traditional-religions-native-americans-19251162 • 43 CFR Part 7.7 and 7.32 http://cfr.vlex.com/source/code-federal-regulations-public-lands-interior- 1092/toc/01.38 • 25 CFR. Part 262.7 http://cfr.vlex.com/vid/262-possible-harm-cultural-religious-19731159 Native American Graves Protection and Repatriation Act of 1990 NAGPRA provides for the protection of Native American graves and deals with the disposition of cultural items, including human remains, by a federally funded repository. NAGPRA also governs the inadvertent discovery of cultural items on federal or tribal lands. It provides for the inventory, protection, and return of cultural items to affiliated tribes. It requires ARPA permits and consultation with tribes for intentional excavation and removal of cultural items from federal or tribal lands. Small Airport Applicability For airport projects, NAGPRA applies when the airport is located on federal land, or when there is federal funding or permitting required. 43 CFR Part 10 regulations pertain to the identification and appropriate disposition of human remains, funerary objects, sacred objects, or objects of cultural patrimony. Compliance Attainment Strategies • Develop an unanticipated discovery plan and submit the plan to be reviewed and accepted by the SHPO and the airport’s FAA point of contact. Key Terms • Associated Funerary Objects—Objects that, as a part of the death rite or ceremony of a culture, are reasonably believed to have been placed with individual human remains either at the time of death or later, and both the human remains and associated funerary objects are presently in the possession or control of a federal agency or museum, except that other items exclusively made for burial purposes or to contain human remains shall be considered as associated funerary objects. • Cultural Items—Human remains, associated funerary objects, unassociated funerary objects, sacred objects, and cultural patrimony. Helpful Hints Of particular concern to an airport is when historical objects are discovered inadvertently during federally funded or permitted development activities or on federal lands. Know who to call if this situation occurs.

56 Guidebook of Practices for Improving Environmental Performance at Small Airports • Cultural Patrimony—An object having ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual Native. • Unassociated Funerary Objects—Objects that, as a part of the death rite or ceremony of a culture, are reasonably believed to have been placed with individual human remains either at the time of death or later, where the remains are not in the possession or control of the federal agency or museum and the objects can be identified by a preponderance of the evidence as related to specific individuals or families or to known human remains or, by a preponderance of the evidence, as having been removed from a specific burial site of an individual culturally affiliated with a particular Indian tribe. Additional Resources • NAGPRA http://www.nps.gov/nagpra/MANDATES/25USC3001etseq.htm Executive Order 13175, Consultation with Indian Tribal Governments (2000) and the Presidential Memorandum of April 29, 1994, Government-to-Government Relations with Native American Tribal Governments Executive Order 13175 was created to establish regular and meaningful consultation and collaboration with tribal officials in the development of federal policies that have tribal implications, to strengthen government-to-government relationships with Indian tribes, and to reduce the imposition of unfunded mandates upon Indian tribes. In formulating or implementing policies that have tribal implications, the Executive Order directed agencies to follow these fundamental principles: 1. The United States recognizes Indian tribes as domestic dependent nations under its protection and has enacted numerous statutes and promulgated numerous regulations that establish and define a trust relationship with Indian tribes; in accordance with treaties, statutes, Executive Orders, and judicial decisions. 2. The United States has recognized the right of Indian tribes to self-government and continues to work with Indian tribes on a government-to-government basis to address issues concerning Indian tribal self-government, tribal trust resources, and Indian tribal treaty and other rights. 3. The United States recognizes the right of Indian tribes to self-government and supports tribal sovereignty and self-determination. Small Airport Applicability For airport projects that use Airport Improvement Program (AIP) grant funding and may affect Native American cultural resources, FAA consults with the appropriate Native American officials to satisfy the Executive Order and Presidential Memorandum.

Planning and Development 57 Compliance Attainment Strategies • Coordinate with the airport’s FAA point of contact to notify pertinent Native American tribes of upcoming construction or permitting actions at the facility. Additional Resources • Executive Order 13175, Consultation with Indian Tribal Governments (2000) http://ceq.hss.doe.gov/nepa/regs/eos/eo13175.html • Presidential Memorandum of April 29, 1994, Government-to-Government Relations with Native American Tribal Governments http://www.em.doe.gov/tribalpages/whletter.aspx 6.2 Environmental Protection National Environmental Policy Act of 1969, as amended NEPA declares the national policy to “encourage a productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality (CEQ).” Through NEPA, Congress requires Federal agencies to consider the environmental effects of proposed actions and their reasonable alternatives. The CEQ prepared the regulations implementing the law that apply to all agencies, entitled Regulations for Implementing NEPA. These implementing regulations dictate that all federal agencies must prepare policies and procedures on implementing NEPA, as well as encourage and facilitate public involvement in decisions which affect the quality of the environment. FAA has issued two guidance documents for implementing NEPA: Order 5050.4B, NEPA Implementing Instructions for Airport Actions (April 2006) and Order 1050.1E, Change 1 Environmental Impacts: Policies and Procedures (March 2006). Small Airport Applicability Planned development at Airports must adhere to NEPA requirements if there is a “federal action” including conducting an environmental impact evaluation. NEPA defines a federal action as one which could consist of FAA funding for the project or FAA approval of the Airport Layout Plan (ALP) revision. Implementation of NEPA consists of three varying levels of environmental analysis (presented in order from least to greatest complexity): • Categorical Exclusion (CATEX) • (FONSI) • Environmental Impact Statement (EIS) Associated Activities • Demolition/ construction/ development • Property acquisition Environmental Assessment (EA) and Finding of No Significant Impact

58 Guidebook of Practices for Improving Environmental Performance at Small Airports Compliance Attainment Strategies • If a project is a federal action, determine if a CATEX, EA, or EIS applies. • Identify potential environmental impacts early in the planning process. • A required CATEX, EA, or EIS must be completed and approved prior to any federal action at the airport. • Coordinate with the airport’s FAA point of contact early in the planning process. • Identify environmental concerns early through public and agency scoping meetings. • Comply with FAA Orders 1050.1E and 5050.4B (detailed in the following sections). Key Terms • Action—Defined by the CEQ as new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies; new or revised agency rules, regulations, plans, policies, or procedures; and legislative proposals. • Categorical Exclusion (CATEX)—Defined by the CEQ as a category of actions which do not individually or cumulatively have a significant effect on the human environment and for which neither an environmental assessment nor an environmental impact statement is required. • Environmental Assessment (EA)—Defined by the CEQ as a concise public document that provides sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact. The EA must facilitate compliance with NEPA when no environmental impact statement is necessary, or facilitate preparation of a statement when one is necessary. • Environmental Impact Evaluation—A detailed written document concerning the environmental impacts of a proposed action. The Environmental Impact Evaluation may be in the form of an EA or an EIS. • Environmental Impact Statement (EIS)—Defined by the CEQ as an action-forcing device to ensure that the policies and goals defined in NEPA are infused into the proposed action. An EIS provides complete, unbiased, and factually supported discussion of significant environmental impacts to inform decision makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment. • Finding of No Significant Impact (FONSI)—A written document concerning the environmental impacts of a proposed action listed in an EA document, which would not have a significant environmental impact. • Scoping— An early and open process for determining the scope of issues to be addressed in an EA or EIS and identifying the significant issues related to a proposed action (40 CFR 1501.7). It is an important and required part of the EIS process, and an optional part of the EA process. The purpose of scoping is to identify significant environmental issues to be analyzed in greater depth, identify and eliminate from detailed study issues that are insignificant or that have been covered by prior environmental review, and set the temporal and geographic boundaries of the EIS. Scoping (with Helpful Hint Typical projects that could be categorically excluded under NEPA include installation or upgrade of airfield lighting, general landscaping, and repair and maintenance of existing pavement or buildings. For more information, refer to Energy-4, Energy-5, and Energy-7 Practices in Appendix A-23.

Planning and Development 59 agencies and/or the public) also allows the responsible FAA official to identify available technical information and additional reasonable alternatives. Additional Resources • NEPA http://frwebgate.access.gpo.gov/cgi- bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+42USC4321 • CEQ Regulations for Implementing NEPA http://ceq.hss.doe.gov/nepa/regs/ceq/toc_ceq.htm • CEQ’s 40 Most Asked Questions http://ceq.hss.doe.gov/NEPA/regs/40/40p3.htm • FAA list of Airport Environmental Records of Decision (RODs) http://www.faa.gov/airports/environmental/records_decision/ United States Department of Transportation, FAA, Order 1050.1E, Change 1 Environmental Impacts: Policies and Procedures (March 2006) Order 1050.1E Environmental Impacts: Policies and Procedures sets FAA’s agency-wide environmental protocol, as required by CEQ’s Regulations for Implementing NEPA. Order 1050.1E provides FAA-specific guidance on integrating NEPA into the planning process and describes FAA actions subject to NEPA review. The NEPA review process addresses impacts of Federal actions on the human environment, including noise, socioeconomic, land uses, air quality, and water quality. Chapter 2 of the Order presents an overview of the NEPA process. Depending upon the context and potential impacts, procedures for implementing NEPA differ. Chapter 3 of the Order addresses those types of FAA actions that do not normally require preparation of an EA or EIS, called CATEX (see paragraphs 303 and 307-312). Chapters 4 and 5 of the Order outline the processes for preparing an EA and EIS. Small Airport Applicability FAA Order 1050.1E applies to classes of FAA actions that have or may have a significant impact on the human environment. Appendix A of Order 1050.1E establishes the environmental resource categories that FAA must analyze in environmental impact analyses. Compliance Attainment Strategies • If a project is a federal action, determine if a CATEX, EA, or EIS applies. • Be familiar with FAA thresholds for significant impacts. • Coordinate with the airport’s FAA point of contact early in the planning process. • Identify environmental concerns early through public and agency scoping meetings. • A CATEX, EA, or EIS must be completed prior to any federal action at the airport.

60 Guidebook of Practices for Improving Environmental Performance at Small Airports Key Terms • Significant Impact Threshold – The impact level or “threshold” that the responsible FAA official uses to determine if the environmental effects of a proposed action or its reasonable alternatives would cause significant environmental effects. If FAA has established a threshold for a resource, the responsible FAA official must use that threshold to determine impact severity and context. Additional Resources • FAA, Order 1050.1E, Change 1, Environmental Impacts: Policies and Procedures (March 2006) http://www.faa.gov/documentLibrary/media/order/energy_orders/1050- 1E.pdf United States Department of Transportation, FAA, Order 5050.4B, National Environmental Policy Act of 1969, as Amended: Implementing Instructions for Airport Actions (April 2006) FAA’s Office of Airports (ARP) is responsible for reviewing and deciding on projects airport sponsors propose for public-use airports. Order 5050.4B provides the most current instructions for implementing the NEPA for airport-specific projects under its ARP’s authority. Order 5050.4B supplements FAA Order 1050.1E, providing detailed guidance on how FAA should integrate NEPA into the planning and decision making processes for major Federal actions related to airports. These procedures are intended to guide FAA’s preparation and review of environmental documents for airport actions. Small Airport Applicability As part of the Airport’s Sponsor’s responsibilities to seek FAA approvals for changes to their ALPs or for Federal funds under the AIP to build airport facilities, Order 5050.4B stipulates that the Airport Sponsor must consider environmental factors, through the NEPA process, in early planning efforts for proposed development projects. This Order provides guidance relevant to the Airport Sponsor on preparing NEPA documents, including the necessary agency, tribal, and public coordination, and detailed descriptions of what is to be included in the documents. Of note to small airports are the list of CATEX for airport actions contained in Tables 6-1 and 6-2 of FAA Order 5050.4B. Airports implementing projects that that result in a CATEX typically must complete a short form provided by the airport’s FAA point of contact for documentation. Compliance Attainment Strategies • If a project is a federal action, determine if a CATEX, EA, or EIS applies. • Be familiar with FAA thresholds for significant impacts. • Coordinate with local FAA airports district office early in the planning process.

Planning and Development 61 • Identify environmental concerns early through public and agency scoping meetings. • A CATEX, EA, or EIS must be completed prior to any federal action at the airport. Key Terms • Public Hearing—A gathering under the direction of a designated hearing officer for the purpose of allowing interested parties to speak and hear about issues of concern. 40 CFR 1506.6(c) states that public hearings should be held whenever appropriate or to meet statutory requirements applicable to an agency. Additional Resources • FAA, Order 5050.4B, NEPA Implementing Instructions for Airport Actions (April 2006) http://www.faa.gov/airports/resources/publications/orders/environmental_ 5050_4/media/5050-4B_complete.pdf • FAA Environmental Desk Reference for Airport Actions, FAA Office of Airports, Office of Airport Planning and Programming, Airports Planning and Environmental Division, APP-400, October 2007 http://www.faa.gov/airports/environmental/environmental_desk_ref/ 6.3 Property Transfer Comprehensive Environmental Response, Compensation and Liability Act of 1980, as Amended CERCLA (commonly referred to as Superfund) was amended by the Superfund Amendments and Reauthorization Act (SARA) of 1986, which established procedures to protect potential property purchasers from buying property that may have existing environmental contamination. The procedures under SARA include conducting Environmental Site Assessments (ESAs) to identify a property’s potential contamination before the property transaction occurs. Examples of potential issues that an ESA may uncover include soil contamination from leaking underground storage tanks, past chemical spills, former landfill locations, sites listed on the National Priorities List (NPL), and regulatory required remediation activities. Three types of ESAs are described below: • Phase I ESA – Document environmental conditions and determine whether environmental contamination is likely to be present • Phase II ESA – When Phase I ESA indicates likelihood of environmental contamination (includes site sampling) • Phase III ESA – Site remediation activities To establish a landowner did not know and had no reason to know of releases or threatened releases, landowners must demonstrate that they conducted “all appropriate inquiries” into the previous ownership and uses of the property. Associated Activities • Demolition/ construction/ development • Property acquisition • Waste generation/ disposal

62 Guidebook of Practices for Improving Environmental Performance at Small Airports The EPA has established standard practices for conducting All Appropriate Inquiries for Phase I ESAs, including that ESAs are conducted by or under the supervision of an environmental professional. A Phase I ESA includes investigation of neighboring properties to determine if they are on the National Priority List or if hazardous substances have been released that can affect the subject property. The All Appropriate Inquires regulations require an environmental professional to sign the final Phase I report. In addition to the regulations, EPA approved two ASTM International standards for conducting ESAs, including ASTM E1527-05 and ASTM E2247-08. Small Airport Applicability FAA has an interest in potential property acquisition when funds are provided through the AIP. Airports must provide a Certificate of Environmental Site Assessment to FAA after conducting a Phase I ESA when using these funds. If a finding for potential environmental contamination exists in the Phase I ESA, the airport must notify FAA before proceeding to a Phase II or Phase III ESA. Airports should perform an ESA even when Airport Improvement Funds are not involved to prevent airports encumbering liabilities of previous owner’s adverse impact on the environment. Compliance Attainment Strategies • Ensure the ESA report contains the signature of the environmental professional and declaration of qualification. • Conduct comprehensive interview to identify all environmental issues. • Conduct a search for lien and use limitation and review property deeds, and transfer records. • Conduct ESAs for non-AIP funded properties to identify environmental issues to avoid significant liability becoming the airport’s responsibility. • Ensure environmental staff are made aware of the extent or degree of environmental contamination at a site, so that the correct cleanup measures are taken. Key Terms • All Appropriate Inquiries—Must be conducted within one year prior to the date of acquisition of the subject property and include an inquiry by an environmental professional, collection of information pursuant to 40 CFR 312.22, and searches for recorded environmental cleanup liens. • Environmental Professional—A person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding conditions indicative of releases or threatened releases. Additional Resources • ASTM E1527-05, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process Helpful Hint Review environmental documents prepared by the property owner prior to transfer to identify potential concerns with the property, such as leaking underground storage tanks or improper waste disposal. For more information, refer to Property-1 Practice in Appendix A-14.

Planning and Development 63 • ASTM E2247-08, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property • ASTM E1903-97, Standard Guide for Environmental Site Assessments: Phase II Environmental Site Assessment Process • FAA Order 1050.19B, Environmental Due Diligence Audits in the Conduct of FAA Real Property Transactions 6.4 Public Involvement State and local agencies may have regulatory requirements regarding public involvement practices. Consideration should be given to all regulatory requirements. FAA Advisory Circular No. 150/5070-7, The Airport System Planning Process (including reference to FAA’s Community Involvement Manual) Although not a federal requirement, the Advisory Circular (AC) provides guidance to Airports on providing the public an opportunity for review and comment to the extent appropriate with the particular project’s scope. It states that the public involvement process should be inclusive of all members of the interested public, the opportunity for public participation or comment is available, and that the process is designed to consider input from the public for the project’s development. Small Airport Applicability FAA’s Community Involvement Manual (referenced in FAA Order 5050.4B and in this AC) can assist planners with addressing the concerns of airport communities during times of airport development. The manual provides practical guidelines for involving the community in a variety of aviation planning situations. Compliance Attainment Strategies • Actively involve the public early in the project to identify areas of concern. • Develop a public coordination plan to identify key points during project planning/development when the public will receive updates and/or be invited to participate. • Conduct periodic public information meetings to keep the public involved. Additional Resources • FAA AC No. 150/5070-7 http://www.faa.gov/about/office_org/headquarters_offices/aep/planning_tool kit/media/VI.A.pdf • FAA, Order 5050.4B, NEPA Implementing Instructions for Airport Actions (April 2006) Helpful Hint Public involvement is required to comply with NEPA and CEQ; however, it is a beneficial tool for any project to keep the public informed of airport activities and maintain positive relations with the community. For more information, refer to Planning-12, Planning-13, and Planning-14 Practices in Appendix A-11. Associated Activities • Demolition/ construction/ development • Property acquisition

64 Guidebook of Practices for Improving Environmental Performance at Small Airports http://www.faa.gov/airports/resources/publications/orders/environmental_ 5050_4/media/5050-4B_complete.pdf • FAA, Order 1050.1E, Change 1, Environmental Impacts: Policies and Procedures (March 2006) http://www.faa.gov/documentLibrary/media/order/energy_orders/1050- 1E.pdf 6.5 Fish, Wildlife, and Plants State and local agencies may have other regulatory requirements. Consideration should be given to all requirements when fish, wildlife, and/or plants may be impacted. Endangered Species Act of 1973 The Endangered Species Act of 1973 requires that federal agencies, in consultation with the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS), seek to conserve endangered or threatened species and ensure that any action authorized, funded, or carried out by a federal agency is not likely to jeopardize the continued existence of any endangered or threatened species or the habitat of such species. Small Airport Applicability Under the Endangered Species Act of 1973, FAA approved or financed actions may occur in those habitats, provided the actions do not jeopardize the protected species’ existence or the Secretary issues an exemption under 50 CFR Section 453. Compliance with the Endangered Species Act of 1973 is required if the responsible FAA official determines the actions may affect Federally listed endangered or threatened species and their critical habitats. The Endangered Species Act of 1973 typically addresses airport actions on the airside such as a new airport, a new or expanded terminal or hangar, a new or extended runway or taxiway, or installing navigational aids (NAVAIDS); and on the landside, actions such as building or moving a new access road, a remote parking facility, or rental car lots, or even smaller-scale projects such as the addition of fencing or clearing of obstruction/trees. If a careful review suggests a project-affected area would not involve a federally listed species or its critical habitat, the environmental document should state that fact, and further consultation under the Endangered Species Act of 1973 is not needed. 50 CFR Part 402 provides the procedures for agency coordination under Section 7 of the Endangered Species Act of 1973, as amended. Some airport actions do not affect federally listed species or their critical habitats, but they may affect state-listed endangered or threatened species. Although the Endangered Species Act of 1973 does not protect state-protected species or habitats, the responsible FAA official must ensure the environmental documents prepared for such airport actions address effects on state-protected resources. Did You Know The acronym ESA can refer to either the Endangered Species Act (Section 6.5) or an Environmental Site Assessment (Section 6.3). Associated Activities • Demolition/ construction/ development • Grounds maintenance/ landscaping • Property acquisition

Planning and Development 65 Compliance Attainment Strategies • Review federal and state protected species listings and mapping to determine if any protected species are present in the project area. • Review the proposed project site for evidence of species of concern or suitable habitat. • Contact appropriate federal (USFWS or NMFS) or state agencies to discuss design measures to ensure avoidance or minimization. Key Terms • Species of Concern—Those species listed in the periodic report "Migratory Nongame Birds of Management Concern in the U.S.," priority migratory bird species as documented by established plans (such as Bird Conservation Regions in the North American Bird Conservation Initiative or Partners in Flight physiographic areas), and those species listed in 50 CFR 17.11. Additional Resources • Endangered Species Act of 1973 (16 U.S.C. 1531-1544) http://epw.senate.gov/esa73.pdf Magnuson-Stevens Fishery Conservation and Management Act of 1976, as Amended MSA governs marine fisheries management in U.S. federal waters. Most notably, MSA aided in the development of the domestic fishing industry by phasing out foreign fishing. MSA prohibits actions that may affect essential fish habitat (EFH). Eight regional fishery management councils identify and describe fishery management plans to protect all commercial fisheries. If a federal action, such as airport development, would affect EFH, an impact assessment on the affected EFH is required. The assessment and any mitigation must be conducted in consultation with the NMFS. This program targets marine fisheries management, but includes certain anadromous and catadromous species that use freshwater stream and rivers for portions of their life cycle. Small Airport Applicability MSA is a concern when airport development requires a Corps of Engineers permit and EFH will be affected. Compliance Attainment Strategies • Review the NMFS EFH web site for the presence of EFH species in project area. • Assemble a list of EFH species and habitat preferences • Review the project site for the presence of species, migratory paths or suitable habitat. • Contact the local or regional NMFS office to discuss the project, potential impact to EFH and coordination requirements.

66 Guidebook of Practices for Improving Environmental Performance at Small Airports Key Terms • Essential Fish Habitat (EFH)—Waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity. Additional Resources • MSA http://ecfr.gpoaccess.gov/cgi/text/text- idx?c=ecfr&tpl=/ecfrbrowse/Title50/50cfr600_main_02.tpl • NMFS EFH web site http://www.nmfs.noaa.gov/habitat/efh/ Marine Mammal Protection Act of 1972 The Marine Mammal Protection Act of 1972 seeks to protect and encourage development of marine mammals in order to maintain the health and stability of the marine ecosystem. The Marine Mammal Protection Act of 1972 prohibits harassment, hunting, capturing, or killing of marine mammals and prohibits importation of marine mammals and marine mammal products without a permit from either the Secretary of the Interior or the Secretary of Commerce, depending upon the species of marine mammal involved. Such permits may be issued only for purposes of scientific research and for public display if the purpose is consistent with the policies of the Marine Mammal Protection Act of 1972. If an action may result in a take of a marine mammal, consultation with the NMFS is required and mitigation actions to minimize or avoid the potential take must be implemented. Small Airport Applicability The Marine Mammal Protection Act of 1972 is a concern for coastal airports when work is proposed in marine waters. Such an action would also require Section 7 consultation under the Endangered Species Act of 1973. Compliance Attainment Strategies • Review the NMFS web site for presence of marine mammals in project area. • Review the project site for the presence of marine mammals or suitable habitat. • Contact the local or regional NMFS office to discuss project and potential impact to marine mammals and coordination requirements. Key Terms • Take—To attempt or actually pursue, hunt, shoot, wound, kill, trap, capture, or collect. Additional Resources • Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et seq.) http://www.nmfs.noaa.gov/pr/pdfs/laws/mmpa.pdf

Planning and Development 67 Migratory Bird Treaty Act of 1918 The Migratory Bird Treaty Act of 1918 makes it unlawful to take or sell “migratory birds” identified in the Migratory Bird Treaty Act of 1918. A complete list of migratory birds protected by the Migratory Bird Treaty Act of 1918 is available at 50 CFR Section 10.13. The statute does not discriminate between live or dead birds and also grants full protection to any bird parts including feathers, eggs and nests. Over 800 species are currently on the list. Actions that may take a migratory bird species are prohibited. If an action may take a migratory bird or affect its breeding habitat, consultation with the USFWS is needed. If it is determined there are no feasible alternatives to taking the migratory bird or its nest, USFWS must issue a permit for the taking. The permit will likely require mitigation. Small Airport Applicability Airport maintenance or development activities should be designed in coordination with a wildlife biologist to determine if migratory birds are present on the airport in areas that may potentially be disturbed. If migratory bird species are identified on the airport property, the USFWS should be consulted to ensure that neither protected birds nor their habitat are disrupted. Compliance Attainment Strategies • Conduct a survey of the project site for the presence of migratory birds or nesting areas. • Design the project to avoid or minimize impacts to migratory bird habitats. Key Terms • Migratory Bird—Any bird listed in 50 CFR 10.13. Additional Resources • Migratory Bird Treaty Act of 1918 (16 U.S.C. Sections 703-712) http://www.fws.gov/permits/mbpermits/regulations/mbta.html • Executive Order 13186, Responsibilities of Federal Agencies to Protect Migratory Birds (2001) http://frwebgate.access.gpo.gov/cgi- bin/getdoc.cgi?dbname=2001_register&docid=fr17ja01-142.pdf • Birds Protected By The Migratory Bird Treaty Act of 1918 http://training.fws.gov/branchsites/CSP/Resources/mig_birds/CD/MBTA% 20Resources/MBTA%20Alpha%20List.htm • Executive Order 13186, Responsibilities of Federal Agencies to Protect Migratory Birds (2001) http://frwebgate.access.gpo.gov/cgi- bin/getdoc.cgi?dbname=2001_register&docid=fr17ja01-142.pdf

68 Guidebook of Practices for Improving Environmental Performance at Small Airports Bald Eagle and Golden Eagle Protection Act of 1940, as Amended The Bald Eagle and Golden Eagle Protection Act of 1940, as amended prohibits anyone, without a permit issued by the Secretary of the Interior, from taking or disturbing bald or golden eagles, including their parts, feathers, nests, or eggs. Prohibited activities include killing or injuring an eagle and activities that substantially interfere with normal breeding, feeding, or sheltering behavior causing decreased productivity or nest abandonment. Taking of a bald or golden eagle includes actions to pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb. Small Airport Applicability Steps should be taken at the airport, including coordination with a wildlife biologist, to identify evidence of Bald of Golden Eagle habitat. If Bald or Golden Eagles have been identified at the airport (including evidence of nests or other habitat indicators), development activities or routine maintenance should avoid disturbing the eagles in any way identified in the Bald Eagle and Golden Eagle Act. Such activities include adding or extending runways or terminal buildings in previously vegetated areas or near water bodies, or maintenance of any structure on the airport that contains a potential eagle nest. Compliance Attainment Strategies • Review the project site for presence of eagle nests, roosting areas, perching sites or feeding areas. • Contact USFWS or state agencies to discuss design measures to ensure avoidance or minimization of impacts to nests and habitat. Additional Resources • Bald Eagle and Golden Eagle Protection Act of 1940, as Amended (16 U.S.C. 668-668d) http://alaska.fws.gov/birds/guidelines/bgepa.html FAA Advisory Circular No. 150/5200-33B, Hazardous Wildlife Attractants On or Near Airports (Part 139, Certification of Airports) Although not a federal requirement, the AC provides guidance to airports on land uses that have the potential to attract wildlife. The AC also discusses development projects affecting operations near wildlife attractants. During the past century, wildlife-aircraft strikes have resulted in the loss of hundreds of lives worldwide, as well as billions of dollars in aircraft damage. Hazardous wildlife attractants on and near airports can jeopardize future airport expansion, making proper community land-use planning essential. This AC provides airport and those parties with whom they cooperate with the guidance needed to assess and address potentially hazardous wildlife attractants when locating new facilities and implementing certain land-use practices on or near public-use airports. Helpful Hint Bald eagle nests in proximity to runways are a potential wildlife hazard. For more information, refer to Wildlife-3 and Wildlife-4 Practices in Appendix A-13.

Planning and Development 69 Small Airport Applicability Most public-use airports have large tracts of open, undeveloped land that provide added margins of safety and noise mitigation but that can also present potential hazards to aviation. Constructed or natural areas, such as poorly drained locations, detention/retention ponds, roosting habitats on buildings, landscaping, odor-causing rotting organic matter (putrescible waste) disposal operations, wastewater treatment plants, agricultural or aquaculture activities, surface mining, or wetlands, can provide wildlife with ideal locations for feeding, loafing, reproduction, and escape. Even small facilities, such as fast food restaurants, taxicab staging areas, rental car facilities, aircraft viewing areas, and public parks, can produce substantial attractions for hazardous wildlife. Compliance Attainment Strategies While AC 150/5200-33B is not a requirement, there are strategies an airport should consider in order to reduce the possibility of wildlife strikes; to avoid impacting protected species; and where applicable, for Part 139 compliance. • Create and maintain a wildlife hazard management plan. • Ensure landscape and buildings are maintained in a manner that discourages hazardous wildlife activity. • Airport personnel should be equipped and trained to perform wildlife control activities, such as utilizing pyrotechnics to scare birds away. • Maintain a daily log of wildlife control activities and wildlife strikes. • Report wildlife strikes to the FAA Wildlife Strike Database to help further research. Additional Resources • FAA AC No. 150/5200-33B http://www.faa.gov/regulations_policies/advisory_circulars/index.cfm/go/ document.information/documentID/22820 • FAA Wildlife Strike Database http://wildlife-mitigation.tc.faa.gov/wildlife/default.aspx • Wildlife Hazard Management at Airports, a Manual for Airport Personnel http://wildlife-mitigation.tc.faa.gov/wildlife/downloads/ 2005_FAA_Manual_complete.pdf