Aviation and Airport Development Law : Aviation Lawyer & Attorney : Chevalier Allen & Lichman Law Firm : Airport Development, Environmental Law

March 5, 2010 - A summary review of Aviation and Airport Development related news and information that was made public during the past ten days.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post. If you would like to receive this update in an e-mail delivered to your inbox every week, please send an e-mail to subscribe@calairlaw.com with the word “subscribe” in the subject line.

Senate to Revive Long-Stalled FAA Bill to Modernize Air Traffic System. --- Dave Michaels, The Dallas Morning News, February 24, 2010
The Senate will soon bring up the long-stalled Federal Aviation Administration reauthorization bill. The bill would create thousands of jobs and is additionally loaded with elements that affect the oversight of airlines, background checks for pilots, and protections for passengers stranded on tarmacs. It also contains a provision that would require air-traffic system modernization by 2018, instead of the previous target date of 2025.
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Flight Attendant Leaders Push for Progress on FAA Reauthorization. --- PRNewswire, February 26, 2010
Leaders from the Association of Flight Attendants and the Association of Professional Flight Attendants met with the offices of several Senators to promote moving forward with the Federal Aviation Administration reauthorization bill, which includes many key provisions for flight attendants. The bill includes fatigue study information and workplace safety and health protections, cabin air quality provisions that would identify the equipment and technologies available to detect and filter highly toxic contaminants in the air supply, English language standards for flight attendants, and a “Return to the Cabin” program that would allow flight attendants an opportunity for rehabilitation after testing positive for drug or alcohol abuse.
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February 26, 2010 - A summary review of Aviation and Airport Development related news and information that was made public during the past ten days.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post. If you would like to receive this update in an e-mail delivered to your inbox every week, please send an e-mail to subscribe@calairlaw.com with the word “subscribe” in the subject line.

Watchdog Finds Aircraft Maintenance Problems at American Airlines, Calls FAA Oversight Weak. --- Joan Lowy, Associated Press, February 18, 2010
According to a report released Thursday by the Department of Transportation’s Office of Inspector General, the Federal Aviation Administration’s lax oversight of aircraft maintenance at American Airlines raises concerns about the agency’s ability to regulate aircraft maintenance in general. At least four maintenance-related allegations made two years ago have “potential safety implications,” and despite a significant increase in maintenance problems at American, the FAA did little to address the issues. The report questions the FAA’s effectiveness and notes that the FAA only ever took action after the department had briefed agency officials on the need for them.
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FAA: Body Falls From Miami-Bound Airplane. --- The Denver Channel, February 18, 2010
A person’s body fell from a wheel well of an airplane leaving the Dominican Republic for Miami on Thursday, February 18. The body was recovered in the Dominican Republic.
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FAA Safety Reforms Finally Going to Senate. --- Jerry Zremski, The Buffalo News, February 11, 2010
A week of the U.S. Senate floor time will be scheduled in March for the Federal Aviation Administration reauthorization bill, including its safety provisions. Several of the provisions address concerns that the National Transportation Safety Board listed last week as part of its investigation into the crash of Continental Connection Flight 3407 near Buffalo, New York, last year. The bill would raise pilot-training standards and set requirements for the airlines’ remedial training programs, as well as mandate other increased safety initiatives. Senate Majority Leader Harry Reid finally made the commitment to move the FAA bill up by six months because the Senate has passed its version of health care reform, which had kept it occupied for months, and because the latest in a series of short-term extensions of the FAA bill is set to expire March 31.
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Senate FAA Reauthorization Bill Expected to Finally Move in March! --- Rotor News, February 12, 2010
Senator Charles E. Schumer has persuaded Senate leadership to move ahead with the Federal Aviation Administration reauthorization bill in March. FAA authorization and safety reforms will be considered over the course of a week, though it is unknown if the Senate Finance Committee will mark up the bill before it goes to the Senate floor for debate.
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FAA Reauthorization and Rule Changes to See Debate in March. --- Glenn Pew, AVweb, February 12, 2010
A week of Senate floor time will be scheduled in March to address aviation safety reforms and the Federal Aviation Administration reauthorization bill. The FAA reauthorization bill has been through several short-term extensions which are set to expire March 31. The bill’s current provisions address pilot safety standards and set requirements for remedial training programs for commercial carriers, as well as call for independent study of pilot fatigue research to be considered in new flight-time and duty-time rules for pilots. The House already passed its version of the reauthorization bill but it is considered more stringent than the bill the Senate has proposed, and whatever the Senate passes will have to be merged with the House bill by a House-Senate conference committee.
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The Council on Environmental Quality, on February 18, 2010, proposed three substantive steps to “modernize and reinvigorate” the National Environmental Policy Act (NEPA). According to Nancy Sutley, the Chair of the White House-based CEQ, these measures “will assist Federal agencies to meet the goals of NEPA, enhance the quality of public involvement in governmental decisions relating to the environment, increase transparency and ease implementation.”

These three steps include when and how Federal agencies must consider greenhouse gas emissions and climate change in their proposed actions; clarifying appropriateness of “Findings of No Significant Impact” and specifying when there is a need to monitor environmental mitigation commitments; and clarifying use of categorical exclusions. The CEQ is requesting public comment on all three of the draft guidances.

The Effects of Climate Change and Greenhouse Gas Emissions Must be Considered in the NEPA Process

Perhaps the most critical element to this modernization of the NEPA process is the CEQ’s draft guidance on when and how Federal agencies must consider greenhouse gas emissions and climate change in their proposed actions. According to the CEQ:

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February 12, 2010 - A summary review of Aviation and Airport Development related news and information that was made public during the past ten days.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post. If you would like to receive this update in an e-mail delivered to your inbox every week, please send an e-mail to subscribe@calairlaw.com with the word “subscribe” in the subject line.

Families of Those Lost in Crash of Flight 3407 Angry With FAA. --- Scott Brown, WGRZ, February 6, 2010
The families of the victims of Flight 3407 are increasingly frustrated and angry with the Federal Aviation Administration, critical of what they see as the agency’s inaction. They are pushing for first officers on regional airlines to have the same flying experience as the pilot’s, but Randy Babbitt, FAA Administrator, said while numbers might be important, the FAA needs to take “a hard look” at all of the elements of training a pilot has been exposed to. The families are now shifting their focus to Congress, where the House has already passed a flight safety bill and the Senate has a similar bill.
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No Way to Run Airlines: FAA Has Done Nothing About Roots of Buffalo Crash. --- New York Daily News, February 8, 2010
The Federal Aviation Administration has done little about the safety lapses that were partially responsible for last year’s crash of Colgan Air Flight 3407 near Buffalo, New York. Despite repeated pressure from the National Transportation Safety Board, which made recommendations “time after time,” the FAA ignored them and has a reputation of long and ineffectively attempting to cajole the airlines into reforming themselves.
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Pilots Risk All for Low Hours, Low Pay. --- Miles O’Brien, Marketplace, February 9, 2010
Regional airlines like Colgan have been involved in every one of the last six fatal commercial airline crashes in the U.S. Safety sometimes takes a bottom line at these airlines because they are often paid by the majors on the number of flights they complete, and not the number of passengers they carry. Pilots, too, are only paid for the hours they fly though they may be on duty for many more; as a result they are underpaid and overworked. The current pay scheme could and seems to have undermined safety, though the Regional Airlines Association president insisted profit never trumps safety.
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February 5, 2010 - A summary review of Aviation and Airport Development related news and information that was made public during the past ten days.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post. If you would like to receive this update in an e-mail delivered to your inbox every week, please send an e-mail to subscribe@calairlaw.com with the word “subscribe” in the subject line.

Study: Water Vapor May Help ‘Flatten Global Warming Trend.’ --- Doyle Rice, USA Today, January 28, 2010
According to a new study released in the journal Science, water vapor, a potent, natural greenhouse gas that absorbs sunlight and re-emits heat, is the “wild card” of global warming. A drop in the concentration of water vapor in the stratosphere very likely helped to flatten the global warming trend since 2000. The cause of the drop in water vapor concentration is unknown, but the decline slowed the rate of surface warming by 25%.
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Controller Staffing Plummets at Busy California FAA Facility; Safety Now an Issue as Errors on the Rise. --- PRNewswire, January 29, 2010
Southern California Terminal Radar Approach Control (TRACON), the nation’s busiest Federal Aviation Administration air traffic control facility that handles climb and approach phases of flight, has seen a 26% drop in the last six years in its number of fully trained and certified air traffic controllers. Facility representative Mel Davis said that the facility needs more experienced controllers, more space to accommodate them, and updated equipment to train them. The problem facing the FAA is trying to get experienced veterans to leave their short-staffed facilities to come to SoCal TRACON, another short-staffed facility.
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Venice Council Ignores FAA Advice. --- Kim Hackett, Herald Tribune, January 29, 2010
The Venice City Council in Florida voted Thursday, January 28, 2010 to submit a plan to downgrade Venice Municipal Airport despite warnings from the Federal Aviation Administration and consultants’ advice to the contrary. Council member Sue Lang said lowering the airport designation would not cost any money and would solve safety problems. A showdown is likely as the FAA has already frozen funds for airport improvements and the agency has repeatedly told the council it would not approve a downgraded plan.
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Airport Decision Could Cost Venice Millions. --- Kim Hackett, Herald Tribune, January 31, 2010
Venice City Council’s decision to submit plans to the Federal Aviation Administration to downgrade Venice Municipal Airport could cost the city millions in federal and state grants and hundreds of thousands of dollars in legal fees. Council members want a shorter runway so that approximately two dozen homes and a golf course would no longer be in an airport safety zone, and they also want to limit jet traffic, but the FAA has ruled against the city at every turn. The FAA will likely reject the plan, which could prompt a protracted battle between the FAA and the city, and the agency could also withhold federal and state funds for airport and runway improvements. A spokesman for the FAA said the city must abide by the agency’s rules as it has accepted millions in the past for airport improvements.
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Skydiving Nixed at Airport. --- John Koziol, The Citizen of Laconia, January 29, 2010
The Laconia Airport Authority in New Hampshire has rejected plans to operate a skydiving business at the facility, citing safety concerns raised by the Federal Aviation Administration. In a December 21, 2009 letter from the FAA to the Airport Authority, the agency ruled that skydivers and aviators were not a good mix at the airport. The FAA studied proposed landing sites at the airport and found that the proposed landing area would adversely affect the safe and efficient use of the navigable airspace by aircraft and the safety of persons and property on the ground.
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NTSB Seeks Authority Over Commercial Space Accidents. --- Andy Pasztor, The Wall Street Journal, January 29, 2010
The National Transportation Safety Board is seeking to expand its purview to cover commercial spacecraft mishaps and accidents. The safety board asked Congress for primary investigative authority over accidents involving commercial space vehicles and for a nearly 20% boost to its budget for the fiscal year starting October 1. The Federal Aviation Administration would retain existing authority to regulate space-tourism operators, establish minimum crew standards, and ensure that passengers are advised about the risks associated with such flights, but the NTSB would be specifically authorized to investigate incidents involving civilian unmanned aircraft.
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FAA Approves 3 Wind Turbines for Providence Wastewater Facility. --- Peter Lord, The Providence Journal, January 30, 2010
The Federal Aviation Administration approved plans by the Narragansett Bay Commission to install three 360-foot wind turbines at its Field’s Point Wastewater Treatment Facility in the Port of Providence, Rhode Island. The Commission still needs approval from several other agencies, but hopes to have the turbines up and running by October 2011. The FAA had raised concerns that the turbines would pose a hazard for nearby T.F. Green Airport, but the Rhode Island Airport Corporation did some modeling that showed the turbines would be well below the glide path to the airport.
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Engine Icing Hazards Discovered on Embraer Regional Jets. --- Andy Pasztor, The Wall Street Journal, January 29, 2010
Aviation regulators in Brazil and Europe have issued safety directives for hundreds of regional Embraer jetliners, intending to prevent both engines on such planes from shutting down in mid-flight. The related moves stem from software problems that regulators believe could result in loss of automatic activation of ice-protection systems for engines on some Embraer 170 and 190 jets, and if pilots fail to react properly in such circumstances ice may build up on engine inlets and cause a dual engine shut down. The Federal Aviation Administration is considering taking similar action.
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Work Begins on $18.8 Million Air Traffic Control Tower. --- Josh Mrozinski, The Times-Tribune, January 29, 2010
Work officially began Friday, January 29, 2010 on an $18.8 million project to replace a 57-year-old air traffic control facility at Wilkes-Barre/Scranton International Airport in Pennsylvania. The airport’s existing air traffic control tower is equipped with hardware that is several decades old and limits line of sight, preventing the use of a runway. The new tower is funded from the American Reinvestment and Recovery Act, and thanks to the stimulus funding Luzerne and Lackawanna counties did not have to borrow money as originally planned.
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Toledo Express Air Traffic Controllers Fight Move of Radar Unit. --- Carl Ryan, Toledo Blade, January 30, 2010
Air traffic controllers at Toledo Express Airport in Swanton, Ohio are fighting the Federal Aviation Administration’s plan to move some of their duties to Cleveland. They say such a move would mean diminished service for general aviation at Toledo Express, less safety, higher costs, and a reduction in efficiency. The FAA has made no decision to relocate the terminal radar approach control, but is considering doing so.
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Gulfstream Sales Expected to Grow in 2010. --- Mary Cart Mayle, Savannah Now, January 30, 2010
Gulfstream Aerospace earnings for calendar year 2009 were down significantly from a year ago, but the company reports continued strength in order activity and substantially fewer customer defaults and improved service volume. Sales and operating earnings for the fourth quarter 2009 were up compared with the third quarter 2009, with all indications pointing to market improvement in 2010.
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FAA Proposes Nearly $2.5 Million Civil Penalty Against American Eagle Airlines.. --- Federal Aviation Administration, February 1, 2010
The Federal Aviation Administration proposed a $2.5 million civil penalty against American Eagle Airlines for operating flights without adequately ensuring the weight of baggage was properly calculated. The FAA alleges that American Eagle conducted at least 154 passenger-carrying flights between January and October 2008 when the baggage weight listed on airplane cargo sheets disagreed with data entered into the company’s Electronic Weight and Balance System. Erroneous data into the weight and balance system results in an incorrect computation of the weight and balance of a particular aircraft and could potentially lead to faulty calculations for the proper control settings and reference speeds necessary for safe takeoffs and landings.
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Midway Airport Privatization in Holding Pattern. --- Paul Merrion, Chicago Business, February 1, 2010
The city of Chicago has told the Federal Aviation Administration that it still plans to privatize Midway Airport “at the earliest practicable date” in the city’s first official statement of its intentions since a deal fell through last year. Last week the city asked the FAA for more time to complete the deal, and the pace and direction of the completion of privatization continues to be dictated by conditions in the global capital and credit markets. The city will report back to the FAA by April 30, 2010, on further developments with respect to the process to select a private operator.
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Flaws Cited in ‘09 Crash Could Persist, FAA Says. --- Matthew L. Wald and Christine Negroni, The New York Times, January 31, 2010
The Federal Aviation Administration says it has fixed a variety of flaws that the 2009 Colgan Air crash in Buffalo, New York made obvious, most specifically targeting improved pilot training and safety programs. The agency warned, however, that some problems are not likely to be fixed for years, if at all, such as what to do about pilots who have a long commute and more generally, how to treat and deal with pilot fatigue.
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Raytheon Rigged FAA Bid, Rival Claims. --- Barbara Leonard, Courthouse News Service, February 1, 2010
The Washington Consulting Group filed a complaint in Superior Court alleging that a high-ranking official at the Federal Aviation Administration conspired with her boyfriend to ensure that his employer, Raytheon, won a billion-dollar contract to train the nation’s air traffic controllers. Washington Consulting claims that the defendants’ meddling “undermined the safe and efficient training of air traffic controllers” and that Raytheon’s misconduct constitutes a criminal conflict of interest, waste of federal resources, and unfair bidding procedures.
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FAA Fines Show Extent of Airline Problems. --- Gary Stoller, USA Today, February 2, 2010
The millions of dollars in fines that the Federal Aviation Administration imposes against airlines for violating maintenance and repair regulations illustrate serious problems and show how many flights take off when they shouldn’t and possibly endanger passengers’ lives. The FAA levied $28.2 million in fines and proposed fines against 25 U.S. passenger airlines for maintenance violations that occurred in the past six years, and 90% of maintenance violations do not result in fines but warning letters or other reprimands by the FAA.
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Dangerous Skies? NTSB to Issue Report on Colgan Air Crash. --- Lisa Stark and Huma Khan, Good Morning America, February 2, 2010
The National Transportation Safety Board will issue a report on Colgan Air Flight 3407, which crashed near Buffalo, New York and killed 50 people. The report will highlight commuter airlines’ safety lapses and the board will likely criticize an airline industry that is suffering from serious shortcomings.
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NTSB to Hold Symposium in Response to Buffalo Plane Crash. --- Sholnn Freeman, The Washington Post, February 2, 2010
The National Transportation Safety Board will hold a staff symposium to explore code-sharing agreements between airlines in detail. Code-sharing agreements allow major carriers to expand their operations to routes that would otherwise be unprofitable, and the arrangements have come under scrutiny because of the absence of rules that would require major airlines to examine pilot qualifications and other safety issues at the smaller carriers. The NTSB is holding the symposium as a response to last year’s February 12 crash in Buffalo, New York. Passengers on the flight bought their tickets from Continental Airlines, but the plan was operated by Colgan, a regional carrier.
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Statement from Colgan Air Regarding NTSB Hearing on Flight 3407 February 2, 2010. --- PR Newswire, February 2, 2010
In response to the National Transportation Safety Board hearing on Colgan Air Flight 3407, the company released a statement asserting that all of its pilots are highly trained to handle all situations they may encounter and that the carrier has always made safety the greatest priority. Colgan also said that it will closely review the NTSB’s findings and recommendations and will work closely with regulators and industry colleagues to reinforce safety as the “primary industry objective.”
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In Response to NTSB Recommendations, FAA Issues Statement. --- Federal Aviation Administration, February 2, 2010
The Federal Aviation Administration announced that it will soon publish federal rules to prevent pilot fatigue and further improve pilot training. The announcement comes on the heels of the National Transportation Safety Board’s hearing and recommendations on Colgan Air Flight 3407, which crashed near Buffalo, New York on February 12, 2009. The FAA said it will review and evaluate the NTSB’s recommendations to help determine what further actions may be needed.
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NTSB: Flight 3407 Crash Primarily Due to Pilot Error. --- Joan Lowy, Associated Press, February 2, 2010
In a hearing on Colgan Air Flight 3407, the National Transportation Safety Board said the pilots made “critical errors showing complacency and confusion,”which resulted in the crash that killed everyone aboard the plane. The crash revealed the safety gap that exists between major airlines and regional carriers, and raised concerns as to whether pilots with low-fare airlines are vulnerable to fatigue, long-distance commutes, and inadequate training. The NTSB board will follow up with a forum this spring on pilot and air traffic controller professionalism, and with another forum on partnerships between major carriers and regional airlines.
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Deadly Plane Crash Near Buffalo Underscores Safety Gap, Official Says. --- Clement Tan, Los Angeles Times, February 3, 2010
National Transportation Safety Board Chairwoman Deborah A.P. Hersman said the Colgan Air Flight 3407 crash showed things “[they’ve] seen before” and that the board has made recommendations “time after time” that have not been heeded by the Federal Aviation Administration. In a report on the crash the board cited multiple pilot errors and other procedures and issued 25 safety recommendations.
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Legislation Requires FAA Action. --- WIVB, February 3, 2010
With the release of the National Transportation Safety Board investigation into the crash of Colgan Air Flight 3407, U.S. Senator Kristen Gillibrand is announcing legislation that would require the Federal Aviation Administration to implement the NTSB recommendations. Senator Gillibrand has been working with the families of the victims of Flight 3407 to ask the NTSB to ensure needed changes in the airline system are not ignored, and has worked on a number of bills to address safety concerns in the airline industry.
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Watchdog: FAA Safety Initiatives Lacking. --- Joan Lowy, Associated Press, February 4, 2010
Transportation Department Inspector General Calvin Scovel said the Federal Aviation Administration has failed to implement most of the safety reforms it promised in response to the crash of Colgan Air Flight 3407. The FAA has fallen behind schedule or failed to meet goals on eight of 10 measures the agency said it would take, including new regulations to prevent pilot fatigue and better inspection of training for regional airline pilots. The National Transportation Safety Board has urged the FAA for 20 years to update its rules for pilot hours and work days to prevent fatigue; FAA Administrator Randy Babbitt countered that the law requires the agency to go through a time-consuming process before adopting new regulations.
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United Sues City of Chicago for $1M for Jet-Truck Collision. --- John Pletz, Chicago Business, February 2, 2010
In a lawsuit filed Friday, United Airlines is suing the city of Chicago for more than $1 million for a February 2, 2005 accident when a United jet pushed back from the gate at O’Hare International Airport and struck a city maintenance truck. United alleges that the vehicle was there improperly and that the city had not notified ground control.
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Controllers: FAA Plan Could Jeopardize Safety. --- Edd Pritchard, Canton Rep, February 2, 2010
National Air Traffic Controllers Association members met Tuesday, February 2, 2010 with pilots in Wooster and Akron, Ohio to explain a Federal Aviation Administration plan to move terminal radar approach controllers from the Akron-Canton Airport tower to a central location in Cleveland. The NATCA members have questioned the changes for more than a year and say that under the current setup controllers are familiar with the area around the airports where they work, but that this could change if controllers are consolidated.
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FAA Says Proposal Not Final. --- Edd Pritchard, Canton Rep, February 3, 2010
The Federal Aviation Administration says it has not finalized proposed changes for radar service in Northeast Ohio, and will brief unions as work continues on the plan. Air traffic controller union members have argued the change raises questions about safety, but the FAA insists that safety will not be jeopardized and notes that centralized radar approach control centers are used to manage airspace in major regions like southern and northern California, the Chicago area, and the Baltimore-Washington, D.C. area.
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City Seeks Grant for Runway 17/35. --- Jessica Langdon, TimesRecordNews, February 3, 2010
Wichita Falls, Texas hopes to receive a $5 million grant from the Federal Aviation Administration to get the first phase of reconstruction of a runway. The city plans to do the work in two phases, with work on the southern part to start this year and work on the northern section expected to start in 2011.
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U.S. Interior Dept. Rushed Cape Wind Review Report. --- Ayesha Rascoe, Reuters, February 3, 2010
A report from the Interior Department’s inspector general says the Department in the final days of the Bush administration may have rushed the completion of a positive environmental assessment of the first proposed major U.S. offshore wind project, but no laws were broken by the process. Several agencies were concerned they did not have enough time to provide thorough reviews and input, but none believed the department’s speedy review affected their overall conclusions. The $1 billion Cape Wind project, proposed in 2001, is designed to power 400,000 homes, but has yet to approved by the department under President Barack Obama.
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Federal Investigators Report that Cape Wind Review ‘Rushed’ But Solid. --- Beth Daley, The Green Blog, February 3, 2010
The U.S. Department of the Interior’s Office of Inspector General’s investigation into the Minerals Management Service’s environmental review of the proposed Nantucket Sound wind farm concluded that several agencies felt “rushed” to finish their contributions to the report but that none of the agencies felt their conclusions were changed as a result of that. The final environmental review was largely favorable toward the Cape Wind project but did not include the most current findings about the impact on air traffic. The Interior Department released a statement saying the report “was not the subject of improper political influence or otherwise deficient.”
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FAA Issues Supplemental NOI to Prepare EA for Air Tour Management at Death Valley National Park. --- Federal Register, February 4, 2010
The Federal Aviation Administration has initiated development of an Air Tour Management Plan (ATMP) for Death Valley National Park. An Environmental Assessment is being prepared and Public Scoping comments are requested.
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Our View on Aviation: Does Airline Cost-Cutting Endanger Passenger Safety? --- USA Today, February 4, 2010
Fliers love the low fares that have come with deregulation but should not have to put up with cost-cutting measures that compromise safety. Troubling signs have recently emerged that airlines are shaving costs in ways that are largely invisible to passengers but potentially dangerous, including repeatedly flying aircraft with repair problems that should keep the planes on the ground, and putting regional aircraft in the hands of exhausted, poorly trained, low-paid pilots. The Federal Aviation Administration has caught up with violators and fined them, but it seems that the agency is sometimes worried more about inconveniencing airlines than aggressively safeguarding passengers.
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FAA User Fees Dead for Now. --- William Garvey, Aviation Week, February 4, 2010
The National Business Aviation Association president said the Federal Aviation Administration reauthorization bill could advance within the next four to eight weeks, and that the threat of aviation user fees seems to be dead “at least for this term of Congress.” The Obama Administration’s 2011 budget proposal, released Monday, February 1, contained no mention of user fees to help fund the FAA. The NBAA is hopeful the FAA reauthorization bill will be passed soon by the Senate, where it has stalled in the Senate Finance Committee.
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January 29, 2010 - A summary review of Aviation and Airport Development related news and information that was made public during the past ten days.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post. If you would like to receive this update in an e-mail delivered to your inbox every week, please send an e-mail to subscribe@calairlaw.com with the word “subscribe” in the subject line.

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With the current emphasis on “renewable energy” and sustainability, along with a healthy dose of federal funding, many companies have been developing plans for wind farms to help move this nation from the grip of over-reliance on petroleum products for its energy needs. While barriers to their construction are not new, with wind turbine companies fending off Endangered Species Act lawsuit (endangered bats running into blades) and other environmental issues, the FAA recently raised an additional issue: obstruction to aviation.

On Wednesday, January 6, 2010, the FAA found that 15 of Gamesa’s proposed 30 wind turbines for Shaeffer Mountain in Somerset County, Pennsylvania, exceed “obstruction standards and/or would have an adverse physical or electromagnetic interference effect” on the airspace above the ridge or nearby airports and flight routes. Two days later, on Friday, January 8, 2010, the FAA ruled that one of the two wind turbines proposed for the Dartmouth, Massachusetts owned land is a hazard to air traffic and must be lowered. 

The FAA may have learned its lesson, since back in April, 2008, it was told to go back to the drawing board with its “Does Not Exceed” determinations for a proposed wind farm above a proposed airport just south of Las Vegas in Ivanpah, Nevada. Clark County v. FAA. There, the court determined that the FAA’s findings flew in the data that the 400 ft towers would penetrate the FAA’s 40:1 slope and that 83 turbines would appear as a “fleet of jumbo jets” to the air traffic controllers.

It may be prudent, then, to review the process established by the FAA for determining if an object will be considered to be an “obstruction.”

Notification

Part 77 of the Federal Aviation Regulations (14 C.F.R., Part 77) establishes standards and notification requirements for objects affecting navigable airspace. This notification serves as the basis for:

• Evaluating the effect of the construction or alteration on operating procedures
• Determining the potential hazardous effect of the proposed construction on air navigation
• Identifying mitigating measures to enhance safe air navigation
• Charting of new objects.

Notification allows the FAA to identify potential aeronautical hazards in advance thus preventing or minimizing the adverse impacts to the safe and efficient use of navigable airspace.

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Developers and local land use jurisdictions beware.  The California Department of Transportation (“CalTrans”) has initiated an update of the 2002 California Airport Land Use Planning Handbook which is scheduled to be completed in 2010.  The Handbook provides guidance to County Airport Land Use Commissions (“ALUC”) in the imposition of height and other zoning and land use restrictions around airports.

An initial problem arises from the Handbook’s interpretation of the airport land use planning process as set forth in the California Aeronautics Act, Public Utilities Code § 21670, et seq.  The California Supreme Court has defined airport land use plans as in the nature of “multi-jurisdictional general plans,” Muzzy Ranch Co. v. Solano County Airport Land Use Commission, 41 Cal.4th 372, 384 (2007), that often supercede local zoning at distances as great as five miles from the end of each runway.  For land use jurisdictions, this means that carefully crafted local regulations within those areas are rendered essentially null, because land use jurisdictions must bring their general and specific plans into consistency with airport land use plans within 180 days of the airport land use plan’s approval, or overrule the approval of the Airport Land Use Plan by a two-thirds vote.  Gov. Code § 65302.3.

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