Residents of Eastern Long Island are awaiting the Federal Aviation Administration (FAA) Final Rule regarding the New York North Shore Helicopter Route. If the Final Rule tracks the FAA’s Notice of Proposed Rulemaking (NPRM), helicopters flying along Long Island’s northern shoreline will be required to use the North Shore Helicopter Route. Pilots may deviate from the route only if necessary for safety or when required by weather conditions. The North Shore Route was added to the New York Helicopter Chart in 2008. However the route was developed for visual flight rules (VFR), and use of the route has been voluntary. The new rule would direct pilots to fly at an altitude of 2,500 feet, one mile offshore, and require that when crossing overland they overfly the least populated areas.
The FAA cites 49 U.S.C. sections 40103 and 44715 as authority for the rule. Under section 40103(b)(2), the FAA Administrator has authority to “prescribe traffic regulations on the flight of aircraft (including regulations on safe altitudes) for . . . (B) protecting individuals and property on the ground.” Section 44715(a) provides that to “relieve and protect the public health and welfare from aircraft noise” the Administrator, “as he deems necessary, shall prescribe . . . (ii) regulations to control and abate aircraft noise . . .” If implemented, the Rule would establish the first-ever mandatory regulations that will set minimum altitudes and establish flight patterns for helicopters on Long Island based on noise abatement, rather than on safety or efficient airspace management. The FAA acknowledges in the NPRM that the rule is in response to complaints from, among others, New York Senator Charles Schumer and former senator Hillary Clinton.
The FAA received more than 800 comments on the NPRM from aviation trade groups, the Town of East Hampton and individuals. Some asked the FAA to consider alternative minimum altitudes and other routes, including a South Shore alternative. Many claimed that the FAA failed to conduct a proper environmental analysis. The FAA refused requests to extend the period for commenting on the NPRM, which ended on June 25, 2010, but has stated that it will consider late-filed comments “if [it is] possible to do so without incurring expense or delay.”
The FAA determined that this action is excluded from environmental review under a FAA Order 1050.1E “Environmental Impacts: Policies and Procedures” categorical exclusion which applies to “[r]egulations, standards, and exemptions (excluding those which if implemented may cause a significant impact on the human environment.)” The FAA determined that implementation of the North Shore Route is not expected to result in significant adverse environmental impacts. This action, which is in response to noise complaints, follows on the heels of the FAA’s New York/New Jersey/Philadelphia Metropolitan Area Airspace Redesign Project, which was recently challenged in the U.S. Court of Appeals for the District of Columbia Circuit on, among other grounds, noise impacts.
The NPRM also expressly states that the proposed rule would not involve any of the “extraordinary circumstances” listed in Order 1050.1E which would require environmental analysis. One such circumstance is when the environmental effects of a proposed action “are likely to be highly controversial,” i.e., “. . . when reasonable disagreement exists over the project’s risks of causing environmental harm.” It remains to be seen if, after political pressure and receiving over 800 comments on the NPRM, the FAA will implement the North Shore Helicopter Route proposed in the NPRM with no environmental analysis.