Petition for Writ of Certiorari — City of Grapevine v. Department of Transportation

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Text

~ FILED

W) 94 462 SEP -6 199

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

OctToBer TERM, 1994

CITY OF GRAPEVINE, TEXAS,

Petitioner,

VS.

DEPARTMENT OF TRANSPORTATION; FEDERICO

PENA, as Secretary of Transportation; FEDERAL AVIATION

ADMINISTRATION; DAVID R. HINSON, as Administrator

of the Federal Aviation Administration; and DALLAS/FORT

WORTH INTERNATIONAL AIRPORT BOARD,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Rosert H. Power STEPHEN L. Kass

CHRISTOPHER Caso Counsel of Record

POWER & DEATHERAGE

1311 W. Irving Boulevard BERLE, Kass & CASE

Irving, Texas 75061-7220 45 Rockefeller Plaza

(214) 259-1678 New York, New York 10111

(212) 765-1800

Of Counsel:

JEAN M. McCarro.iyi

Attorneys for Petitioner

City of Grapevine, Texas

QUESTIONS PRESENTED

1. Whether a federal agency may approve an undertaking

adversely affecting historic properties before completing the con-

sultation and review procedures mandated by the National

Historic Preservation Act.

2. Whether a federal agency may approve an Airport Layout

Plan for a $3.5 billion airport expansion while restricting its en-

vironmental review to two segments of the plan that represent

approximately ten percent of the expansion project’s cost.

3. Whether the National Environmental Policy Act permits

a federal agency to use multiple “categorical exclusions” to ex-

cise from its environmental review substantial elements of an

integrated project.

Bate

PARTIES TO THE PROCEEDING

IN THE DISTRICT OF COLUMBIA CIRCUIi

l. | City of Grapevine, Texas, Petitioner

2. City of Euless, Texas, Petitioner*

3. City of Irving, Texas, Petitioner*

4. Irving Independent School District and Owners and

Trustees, Petitioners*

5. Robert S. Newkirk, Trustee, et al., Petitioners.*

6. United States Department of Transportation,

Respondent

7. Andrew H. Card, Secretary of Transportation,

Respondent * *

8. Federal Aviation Administration, Respondent

9. Barry Lambert Harris, Acting Administrator of the

Federal Aviation Administration, Respondent**

10. Dallas/Fort Worth International Airport Board,

Intervenor/Respondent

* City of Euless, City of Irving, Irving Independent School District, and Robert

S. Newkirk, Trustee, et al., petitioners below, are not petitioners before this

Court.

** Andrew H. Card, former Secretary of Transportation, and Barry Lambert

Harris, former Acting Administrator of the Federal Aviation Administration,

were named as parties in the proceedings below. Pursuant to Supreme Court

Rule 35.3, Federico Pefia and David R. Hinson, successors to Mr. Card and

Mr. Harris, respectively, have been substituted as parties in this proceeding.

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TABLE OF CONTENTS

QUESTIONS PRESENTED .....-.----:-°°°°°*°

PARTIES TO THE PROCEEDING IN THE

DISTRICT OF COLUMBIA CIRCUIT ......-

TABLE OF CONTENTS....--------:: 0000007

TABLE OF AUTHORITIES ....---------- 0-07:

OMINION BELOW.......-------eerr rr

TUMEMIGTIONN 22... - eee eee eee ere

STATUTES AND REGULATIONS INVOLVED .

STATEMENT OF THE CASE .....---------°°:

I. The Dallas/Fort Worth Airport Expansion .. .

Il. The Affected Communities ...-----------°

III. The FAA’s Decisionmaking Process ....-----

IV. The Jurisdiction and Opinion of the Court

ELE IE

REASONS FOR GRANTING THE 5 re

I. THIS COURT SHOULD RESOLVE A

CONFLICT BETWEEN THE DISTRICT

OF COLUMBIA CIRCUIT AND THE

FIFTH CIRCUIT ON THE ISSUE OF

WHETHER AN AGENCY MAY APPROVE

AN UNDERTAKING ADVERSELY

AFFECTING HISTORIC PROPERTIES

BEFORE COMPLETING THE NHPA-

MANDATED CONSULTATION AND

REVIEW PROCEDURES ......----------:

Page

" Soi Ses

atl A aS lias Ses

II.

III.

THE COURT BELOW DISREGARDED

SETTLED LAW ON SEGMENTATION IN

APPROVING AN EIS THAT WAS

LIMITED TO THE EAST AND WEST

RUNWAYS AND OMITTED THE

BALAI OP Zee Mee onc on ics esse.

THIS COURT SHOULD RESOLVE THE

NOVEL QUESTION OF WHETHER NEPA

PERMITS MULTIPLE CATEGORICAL

EXCLUSIONS FOR SUBSTANTIAL

ELEMENTS OF AN INTEGRATED

Re es ts ee

ee BA rn ee On es ep aren

APPENDIX

Page

TABLE OF AUTHORITIES

CASES PAGE

Chelsea Neighborhood Ass'n v. United States

Postal Service, 516 F.2d 378 (2d Cir. 1975).... 15, 16

Citizens for the Scenic Severn Bridge, Inc. v.

Skinner, 802 F. Supp. 1325 (D. Md. 1991),

aff'd, 972 F.2d 338 (4th Cir. 1992)........... 20

City of Alexandria v. Federal Highway Admin..,

756 F.2d 1014 (4th Cir. 1985) .....---------- _ 20

City of Rochester v. United States Postal Service,

54] F.2d 967 (2d Cir. 1976) .........-------- 15

Commonwealth of Massachusetts v. Watt, 716

F.2d 946 (Ist Cir. 1983) ......-----++- ++ 5s: 10, 10n,

Greenpeace U.S.A. v. Evans, 688 F. Supp. 579

(W.D. Wash. 1987) .....-------- see er err 20

Jones v. Gordon, 792 F.2d 821 (9th Cir. 1986) ... 20

Miron v. Menominee County, 795 F. Supp. 840

(W.D. Mich. 1992).......------ seer reer 20

Mississippi ex rel. Moore v. Marsh, 710 F. Supp.

1488 (S.D. Miss. 1989).....-------+++s2+05: 20

National Trust for Historic Preservation v. Dole,

828 F.2d 776 (D.C. Cir. 1987)....----------- 20

Natural Resources Defense Council, Inc. v.

Hodel, 865 F.2d 288 (D.C. Cir. 1988) ......-- 18

Preservation Coalition, Inc. v. Pierce, 667 F.2d

851 (Oth Cir. 1982)........-----e reer ere ees 6)

Page

Robertson v. Methow Valley Citizens Council,

400 U.S. Ty Ga hie sake ee ae eiaes 9,17

Sierra Club v. Clark, 774 F.2d 1406 (9th Cir.

0 rrr ee 14n

Sierra Club v. Hassell, 636 F.2d 1095 (5th Cir.

YOG1) ... . «00 nek Meee nabesy tess 20

Sierra Club v. Marsh, 872 F.2d 497 (1st Cir.

i ry Pe Pe ee 10, 10n,

Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985) 15

Vieux Carre Property Owners v. Brown, 948 F.2d

1496 GOGR CR SRR 55d Pave Ons ces tiees. 12, 14

West Houston Air Comm. v. FAA, 784 F.2d .02

(Sth Ci. BOD: is ins sie a eases 20

Yerger v. Robertson, 981 F.2d 460 (9th Cir. 1992) 14n

STATUTES

National Historic Preservation Act, 16 U.S.C. §§

470 of O08. <3 6043-5045 ee passim

16 U.S.C. § 470-1 SO ek one a ee 2,9

National Historic Preservation Act § 106, 16

U.S.C. § GRR ssa vs sca eat ee ea. passim

28 U.S.C. § 1254(1) ..... Pe ee ON See ee 2

National Environmental Policy Act, 42 U.S.C. §§

A FF Re ra ier en eee Pe passim

Department of Transportation Act § 4(f), 23

U.S.C. § OB niin cigaeeenea eee ee ee

vii

PAGE

49 U.S.C. app. § 1486.............----eee- me 2, 8

REGULATIONS

ee ee vassim

ee ES, eee ee nee" 2, 12

a EE ee ee 2, lin

40 C.F.R. Parts 1500-1508 ................---- 2

EE eee eee 2, 18-19

FAA Order S050.4A 4 23. ...........-. 200 eeee- 2, 19-20

FAA Order 5050.4A § 47e(8)(a), (b) .......----- 2, 11

No.

IN THE

Supreme Court of the United States

OcrosBEerR TERM, 1994

CITY OF GRAPEVINE, TEXAS,

Petitioner,

VS.

DEPARTMENT OF TRANSPORTATION; FEDERICO

PENA, as Secretary of Transportation; FEDERAL AVIATION

ADMINISTRATION; DAVID R. HINSON, as Administrator

of the Federal Aviation Administration; and DALLAS/FORT

WORTH INTERNATIONAL AIRPORT BOARD,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR WRIT OF CERTIORARI

The petitioner, the City of Grapevine, Texas (“Grapevine”),

respectfully prays that a writ of certiorari issue to review the

judgment and opinion of the United States Court of Appeals

for the District of Columbia Circuit in the above-captioned case.

OPINION BELOW

The opinion of the United States Court of Appeals for the

District of Columbia Circuit is reported at 17 F.3d 1502 and

is reprinted in the Appendix at A-1-15’

JURISDICTION

The judgment of the Court of Appeals was entered on

November 19, 1993; the court’s opinion was issued on March

18, 1994. The order of the Court of Appeals denying Grapevine's

petition for rehearing was entered on May 9, 1994. See Appen-

dix at A-16. A timely application for an extension of time in

which to file a petition for a writ of certiorari was granted on

July 15, 1994 by Chief Justice William Rehnquist to and in-

cluding September 6, 1994. The jurisdiction of this Court is in-

voked under 28 U.S.C. § 1254(1).

STATUTES AND REGULATIONS INVOLVED

The statutes and regulations involved in this case are: the Na-

tional Historic Preservation Act, 16 U.S.C. §§ 470 et seq.,

specifically section 106, which is set out in the Appendix at A-18;

section 4(f) of the Department of Transportation Act, 33 U.S.C.

§ 138; the National Environmental Folicy Act, 42 U.S.C. §§ 4321

et seq.; 36 C.F.R. Part 800, specifically sections 800.4-.6, which

are set out in the Appendix at A-19-26; 40 CFR. Parts 1500-1508,

specifically section 1508.4, which is set out in the Appendix at

A-27; and Federal Aviation Administration Order 5050.4A,

specifically paragraphs 23-24, which are set out in the Appen-

dix at A-28-31.

1“A. _” refers to pages of the Appendix hereto. Documents from the Joint

Appendices submitted to the Court of Appeals for the District of Columbia

Circuit in this case are cited as “Jt. App. No. —.” Documents from the Ad-

ministrative Record in this case are cited as “Rec. No. _.”

STATEMENT OF THE CASE

This case presents important issues concerning the integrity

and effectiveness of two basic statutes — the National Historic

Preservation Act (“NHPA”) and the National Environmental

Policy Act (“NEPA”) — enacted to protect the cultural heritage

and environment of the nation. NHPA, enacted in 1966, and

NEPA, enacted in 1969, make federal agencies stewards of the

nation’s historic places and natural resources and require federal

agencies to incorporate likely impacts on historic places or, in

the case of NEPA, the environment into their decisionmaking

processes. This case concerns a federal agency’s obligation to

comply, in a timely manner, with the statutory procedures for

considering those impacts.

These issues arise in the context of the approval by the Federal

Aviation Administration (the “FAA”) of a $3.5 billion expansion

of the Dallas/Fort Worth International Airport (the “DFW Air-

port”). The petitioner submits that the FAA circumvented the

reviews required by NHPA and NEPA by (1) granting final ap-

proval to the DFW Airport expansion before completing the

historic review process required by NHPA and (2) using multi-

ple “categorical exclusions” and other devices to segment the en-

vironmental review required by NEPA. By upholding the FAA's

action, the court below disregarded the plain language of NHPA,

ignored settled law under both NHPA and NEPA, and declined

to consider the novel question presented by the FAA’s use of

multiple categorical exclusions to narrow the scope of its en-

vironmental review.

A. The Dallas/Fort Worth Airport Expansion

The DFW Airport is located within the cities of Grapevine,

Euless, Irving, and Coppell, Texas, approximately halfway be-

tween Dallas and Fort Worth. It currently occupies an area of

approximately 17,500 acres, and since its opening in 1974 has

become the second busiest airport in the United States.

A proposed Airport Development Plan (“ADP”) for the DFW

Airport was unveiled in 1988. As proposed, the ADP

contemplated: destruction of most of the existing passenger

terminals; construction of two new passenger terminals; con-

struction of more than 400 acres of new parking facilities; in-

stallation of new cargo, hangar, maintenance, people-mover,

baggage, and other support facilities; construction of a new

facility to support overnight package hub operations; a doubl-

ing of fuel storage facilities; realignment and expansion of ex-

isting roadways; construction of new roads; condemnation of

additional real property outside the current boundaries of the

DFW Airport; construction of two new control towers; exten-

sion of two existing runways; and construction of two new run-

ways (the “East Runway” and the “West Runway”) designed to

accommodate large commercial aircraft. Th« various com-

ponents of the ADP, including the East and West Runways, were

incorporated by the DFW Airport into a proposal for a revised

Airport Layout Plan (“ALP”), which required approval by the

FAA.

B. The Affected Communities

The cities of Grapevine, Euless, Irving, and Coppell, in which

the DFW Airport is located, are predominantly residential com-

munities with relatively large areas of parks and open space.

Each community contains numerous churches, libraries, schools,

hospitals, nursing homes, and other noise-sensitive uses. The City

of Grapevine (the petitioner herein), the center of which is im-

mediately to the northwest of the DFW Airport, includes four-

teen churches, three schools, two nursing homes, three hospitals,

a library, and 2,362 acres of parks serving its 29,000 residents,

as well as residents of nearby communities. Several of Grapevine's

parks and most of its other noise-sensitive uses are located in

downtown Grapevine, where they will be directly under or near

the flight paths of aircraft landing on or departing from the West

Runway. Some of these facilities will be as close as one-quarter

mile from the West Runway.

Grapevine, in particular, is a historic community, character-

ized by historic districts and several notable individual historic

buildings. It was settled by Scotch-Irish farming families from

;

Missouri in the 1840’s and by the 1880’s had emerged as the small

commercial center of northeast Tarrent County. By the early

years of this century, the commercial center of Grapevine had

developed along Main Street, which retains today much of its

historic architectural character. The Main Street Conservation

District “is characterized by a consistent streetscape of one-and

two-story brick buildings,” including four turn-of-the-century

“brick buildings with cast-iron ground-floor columns in nearly

unaltered condition”? The District is “a fine historic commer-

cial district” and “a classic image of the small town American

main street.” In addition, the historic center of the city is the

site of the annual Main Street Days festival, the annual

Christmas parade, park concerts, strolling, and numerous other

outdoor civic, cultural, educational, and recreational activities.*

The city’s early churches and schools and the residences of

many of Grapevine's leading merchants and professionals were

built to the east of Main Street in an area of several blocks located

between Jenkins Street, Dooley Street, Wall Street, and East

Hudgins Street. That area today includes a concentration of in-

tact late nineteenth and early twentieth century houses. Among

them are “Grapevine's single most imposing Victorian house,

the Dr. Thomas Benton Dorris House . . ., and an outstanding

early twentieth century house, the Mary Lipscomb Wiggins

House . . ..* “The streetscape is characterized by consistent set-

backs, broad lawns, some mature trees, with maintenance of

houses and gardens at a generally high, often excellent, level.”*

2 Historic Preservation Council for Tarrent County, Tex., Tarrent County

Historic Resources Survey (1990) (DEIS Comments of Cities of Euless,

Grapevine, and Irving, Appendix 91) (Rec. No. 32)) (“Tarrent County”) at J

* Id. at 8.

* Mark Mailes, Grapevine Parks & Recreation Director, Parks and Historic

Sites Impacted by Proposed Runway 16/34W (1990) (DEIS Comments of Cities

of Euless, Grapevine, and Irving, Appendix 6) (Rec. No. 28)) (“Mailes”) at 18.

* Tarrent County at 7.

* Id.

The area’s “visual harmony, concentration of architecturally and

historically significant houses and continuous history as the most

elegant and prestigious street in Grapevine” make it likely to

meet the criteria for a National Register Historic District.’

The historic residential district is almost directly under the

projected flight paths of aircraft that will be using the West Run-

way; the historic Main Street district is only slightly to the west

of those projected flight paths. Operation of that runway will

double or quadruple existing noise levels in those historic

districts. The resulting noise levels (in some cases comparable

to the sound level inside a New York City subway or the noise

experienced by a chain saw operator’) will severely compromise

the turn-of-the-century character of Grapevine's historic districts.

Grapevine is thus concerned that the Main Street district,

which has been the subject of a $3.5 million City-sponsored

restoration project over the last decade, will become blighted

as the noise from the West Runway’s air traffic destroys the

district’s historic small town atmosphere and its pleasing environ-

ment for strolling and shopping, and that, as its businesses move

out, Grapevine will be left with deserted buildings in what had

once been the heart of its downtown.* Grapevine also believes

that the operation of the West Runway will cause many

homeowners in the historic residential district, who now cherish

their homes and the elegant atmosphere of their neighborhood,

to sell their homes and move away, leaving the historic homes

to fall into disrepair as well.” Grapevine therefore sought to per-

suade the FAA to delete the West Runway from the ALP or, at

the very least, to find a less severely impacting alternative that

would not threaten Grapevine's historic districts or environment.

7 Mailes, Historical Analysis at 3.

* Letter from Claudia Nissley, Director, Western Office of Review, Advisory

Council on Historic Preservation, to Vernell Sturns, Executive Director,

Dallas/Ft. Worth International Airport, Sept. 28, 1993 (reprinted at A-42-49).

* Mailes, Historical Analysis at 2, 4.

C. The FAA’ Decisionmaking Process

The FAA was charged with the responsibility of reviewing

the revised ALP and determining whether portions of the ex-

pansion project (including the East and West Runways) were

eligible for federal funding. In its April 7, 1992 Record of Deci-

sion (“ROD”)." the FAA both approved the ALP and declared

the East and West Runways eligible for such funding, finding

that neither runway would have any “adverse effect” on historic

properties. The FAA made this determination even though it

had not, as required by NHPA, consulted with the Advisory

Council on Historic Preservation (the “Advisory Council”), had

not complied with the procedures required by the Advisory

Council’s (or its own) regulations, and had not identified all eligi-

ble historic sites in Grapevine.”

The FAA did prepare an environmental impact statement

(“EIS”)® under NEPA purporting to analyze the environmen-

tal impacts of its actions. However, that EIS was limited to the

expected impacts of the East and West Runways and excluded

virtually all other components of the expansion plan shown in

the ALP. The new or relocated radar and navigational systems,

the two new air traffic control towers, and the new Doppler

Weather Radar system were excluded from the EIS on the ground

that other environmental assessments have been or will be

prepared for them. The extensions of two existing runways and

associated actions were excluded on the ground that they were

examined in an EIS in 1974, which would be subject to a

“technical reevaluation.” The roadway improvements and regional

« The ROD is printed in full in Jt. App. No. 1. Relevant portions are reprinted

in the Appendix hereto at A-36-4l.

2 The ROD also stated the FAA's determination that no parks, recreation areas,

or historic properties protected by section 4(f) of the Department of Transpor-

tation Act (‘Section 4(f)”) would be sufficiently adversely affected to invoke

® The Final EIS, dated December 1991 (“FEIS"), is included in Rec. Nos. 70-71.

Relevant pages are reprinted in the Appendix hereto at A-32-35.

commuter rail system with access to the DFW Airport were ex-

cluded because they had been or would be examined by other °

federal agencies (the Federal Highway Administration or the Ur-

ban Mass Transit Administration). Finally, the new east and west

terminal complexes, miscellaneous taxiway and apron im-

provements, land acquisitions, ground transportation improve-

ments, AIRTRANS improvements, and air traffic procedure ac-

tions were considered to be “categorical exclusions.” All told,

the elements excluded from the FAA's EIS accounted for approx-

imately $2.1 billion of the $3.5 billion expansion project.

Despite the limited scope of the EIS, the FAA announced in

the ROD its approval of the entire ALP — thus fixing the loca-

tion of the East and West Runways and all other elements of

the project — and its determination that portions of the expan-

sion project, including but not limited to the East and West Run-

ways, were eligible for federal funding.

D. The Jurisdiction and Opinion of the Court Below

The cities of Grapevine, Euless, and Irving and the Irving

Independent School District petitioned the United States Court

of Appeals for the District of Columbia Circuit for review of

the FAA’s final orders as embodied in the ROD. Pursuant to 49

US.C. app. § 1486, the District of Columbia Circuit had original

and exclusive jurisdiction over these orders.

The court below, inter alia, found that the FAA had not

violated NHPA procedures because its approval of the West Run-

way was “conditional,” despite the ROD’s characterization of

its approval as “final”; upheld the scope of the EIS, deferring

to the FAA's interpretation of its regulations on “categorical ex-

clusions” and noting the EIS’s brief sections on cumulative im-

pacts; and upheld the FAA's Section 4(f) determination, again

deferring to the agency in its use of its standard noise measure-

ment guidelines.

The City of Grapevine respectfully submits that these rul-

ings of the court below are inconsistent with the plain language

of NHPA, the purposes of NHPA and NEPA, and settled law

under both statutes.

* FEIS at 1-38 to 1-39 (A-32-35).

ah a a ale ain ET RNA \ esse inet PA ee.

REASONS FOR GRANTING THE WRIT

I. THIS COURT SHOULD RESOLVE A CONFLICT

BETWEEN THE DISTRICT OF COLUMBIA CIR-

CUIT AND THE FIFTH CIRCUIT ON THE ISSUE

OF WHETHER AN AGENCY MAY APPROVE AN

UNDERTAKING ADVERSELY AFFECTING HIS-

TORIC PROPERTIES BEFORE COMPLETING THE

NHPA-MANDATED CONSULTATION AND REVIEW

PROCEDURES

NHPA was enacted in 1966 to “foster conditions under which

our modern society and our prehistoric and historic resources

can exist in productive harmony,’ to “provide leadership in the

preservation of the prehistoric and historic resources of the

United States,” and to “contribute to the preservation of

nonfederally owned prehistoric and historic resources.” 16 U.S.C.

§ 470-1.

NHPA is essentially a procedural statute. Preservation Coali-

tion, Inc. v. Pierce, 667 F.2d 851, 859 (9th Cir. 1982). Unlike

Section 4(f), NHPA imposes no substantive mandates on agen-

cies: rather, it sets forth mandatory procedures by which federal

officials and agencies inform themselves about, and “take into

account,” the impacts on historic properties that may result from

their proposed “undertakings,” a statutory term that includes

federal funding decisions, licenses, and other approvals. It is

similar in this respect to NEPA, which requires that federal agen-

cies inform themselves about the environmental impact of their

actions. See, e.g., Robertson v. Methow Valley Citizens Council,

490 U.S. 332, 349, 351 (1989) (NEPA). Because the purpose of

8 It is for this reason, among others, that the noise standards the FAA employed

Western Office of Review, Advisory Council on Historic Preservation, to Hugh

W. Lyon, Assistant Division Manager, FAA, Southwest Region, June 8, 1993

(reprinted at A-61-63).

the procedures required by both NHPA and NEPA is to inform

the decisionmaking process, plainly those procedures have value

only if they are undertaken before a decision is made” See, e.g.,

Sierra Club v. Marsh, 872 F.2d 497, 500, 502 (1st Cir. 1989)

(NEPA); Commonwealth of Massachusetts v. Watt, 716 F.2d 946,

952 (Ist Cir. 1983) (NEPA).

The procedures mandated by NHPA are set forth in section

106 of the statute (“Section 106”) and the regulations pro-

mulgated thereunder by the Advisory Council and individual

agencies. Section 106 provides:

The head of any Federal agency having direct or in-

direct jurisdiction over a proposed Federal or federally

assisted undertaking in any State and the head of any

Federal department or independent agency having

* The reason why the information-gathering procedures must precede the deci-

sionmaking is not difficult to discern. Once a decision has been made, alter-

natives may be foreclosed and resources may have been committed. Even

without actual ground-breaking or commitment of resources, the mere fact

that a decision has been made will make changing course very difficult. Justice

Breyer, as Chief Judge of the First Circuit, explained the problem in the con-

text of NEPA as follows:

_. . NEPA is designed to influence the decisionmaking process;

its aim is to make government officials notice environmental con-

siderations and take them into account. Thus, when a decision

to which NEPA obligations attach is made without the informed

environmental consideration that NEPA requires, the harm that

NEPA intends to prevent has been suffered. . . . Moreover, to set

aside the agency’s action at a later date will not necessarily undo

the harm. The agency as well as private parties may well have

become committed to the previously chosen course of action, and

new information — a new. EIS — may bring about a new deci-

sion, but it is that much less likely to bring about a different one.

It is far easier to influence an initial choice than to change a mind

already made up.

Commonwealth of Massachusetts v. Watt, 716 F.2d at 952, quoted in Sierra

Club v. Marsh, 872 F.2d at 500 (emphasis in original). The same reasoning

applies to the decisionmaking process under the NHPA.

Vic AC ASEM Maite

re ree RIE

iat ag elbced ahi

authority to license any undertaking shall, prior to

the approval of the expenditure of any Federal funds

on the undertaking or prior to the issuance of any

license, as the case may be, take into account the ef-

fect of the undertaking on any district, site, building,

structure, or object that is included in or eligible for

inclusion in the National Register. The head of any

such Federal agency shall afford the Advisory Coun-

cil on Historic Preservation established under part B

of this subchapter a reasonable opportunity to com-

ment with regard to such undertaking.

16 U.S.C. § 470f (A-18) (emphasis supplied).

The Advisory Council, an independent federal agency created

by Congress to administer the NHPA, has issued regulations to

flesh out the Section 106 procedures. Those regulations set out

a specific consultation process to be followed by all federal agen-

cies in carrying out their responsibilities under Section 106, see

36 C.FR. Part 800, Subpart B, and have in turn been adopted

specifically by many federal agencies, including the FAA. FAA

Order 5050.4A 4 47e(8)(a), (b), at 38-40." The Advisory Coun-

cil regulations (the “Part 800 Regulations”) require that, before

approving any “undertaking,” each federal agency shall: (1) iden-

tify, in consultation with the State Historic Preservation Officer

(the “SHPO”), all historic properties that may be affected by

the undertaking; (2) assess the effects of the undertaking on such

properties in accordance with specific Advisory Council criteria,

after giving consideration to the views of interested persons;"

(3) seek, in consultation with the SHPO, the Advisory Council,

owners of affected properties, and local governments with

jurisdiction over such properties, ways to avoid or reduce any

adverse historic effects; and (4) attempt to reach agreement with

” FAA Order 5050.4A is printed in full in Rec. No. 325. Relevant portions

are reprinted in the Appendix hereto at A-28-31.

* An agency's determination of no adverse effect from its proposed undertak-

ing may be overruled by the Advisory Council. 36 C.F R. § 800.5(d)(2) (A-22).

the parties to the consultation process on ways to avoid or

mitigate any adverse effects of the undertaking on historic pro-

perties, memorializing the measures agreed on in a Memoran-

dum of Agreement. 36 C.F.R. §§ 800.4-.6 (A-19-26).

To be meaningful, the Section 106 consultation process must

be conducted before the agency makes its decision to proceed

with an undertaking. Vieux Carre Property Owners v. Brown,

948 F.2d 1436, 1445 (5th Cir. 1991) (“the express language of

NHPA § 106 requires the [agency] to afford the Advisory Council

an opportunity to comment prior to its issuance of any license

for an undertaking that may affect historic properties.”) (em-

phasis in original).

In its ROD, the FAA admitted that it had not yet completed

the Section 106 process for the West Runway. Indeed, it listed

among the tasks to be completed “the identification of future

possible eligible historic sites in Grapevine” ROD at 43 (A-37-38).

That, of course, is the first step in the process. Despite its failure

to identify such “possible eligible historic sites,” the FAA deter-

mined: “There is ‘no adverse effect’ on historic properties as a

result of the West Runway (16-34 West) project.” Id. Further,

the FAA made its “final determination” that the revised ALP

incorporating both the East and West Runways “is approved,”

and approved both runways as “eligible for federal financial

assistance.” ROD at 1 (A-36).

The court below focused on the FAA's statement in the ROD

that its approval of the West Runway was conditioned on future

completion of the Section 106 process. ROD at 74 (A-41); see

A-14-15. That statement, however, is belied by the ROD’s

repeated recitation that the FAA was giving “final, unconditional

approval for Runway 16/34 West at this time.” ROD at 72 (A-39).

Even if the FAA’s contradictory statements could be reconcil-

ed, however, conditioning the release of federal funds and ac-

tual construction of the West Runway on completion of the Sec-

tion 106 process would do little to achieve the purposes of the

NHPA. The one thing that is clear is that the ROD approved

)

espe A ORE dpe n Oe

the location of the runway.” “This decision removes any uncer-

tainty regarding the configuration of this runway on the ALP.”

ROD at 72 (A-40).

The FAA has thus reduced the Section 106 review to an exer-

cise in futility.” The FAA has already decided that the West Run-

way is necessary and that alternative locations for that runway

are foreclosed. As noted above, the location fixed by the FAA

for the West Runway will put the historic districts of Grapevine

almost directly under the flight paths of aircraft using the West

Runway. That is expected to subject those districts to noise levels

as high as those experienced by a chain saw operator or New

York City subway passenger and, as a result, to adversely affect

the public’s experience and enjoyment of the historic qualities

of those districts.”

Because the purpose of the Section 106 review process is to

avoid or mitigate adverse impacts on historic properties, one

result of the consultation process — had it been followed in this

case — might have been to select an alternative location for the

West Runway. In the EIS, the FAA itself identified one such alter-

native (Alternative 2a) having operating characteristics virtually

identical to those of the West Runway, but located 800 feet far-

ther east (and thus not directly over Grapevines historic

districts). According to the EIS, Alternative 2a would cost

somewhat more and require the filling of additional wetlands.”

'® That decision by itself is likely to affect the location, maintenance, and in-

vestment choices of property owners, commercial tenants, and lending institu-

tions in both the downtown and residential historic districts — regardless of

whether the West Runway is actually constructed.

2 The Advisory Council has expressed this concern as well. See Letter from

Claudia Nissley, Director, Western Office of Review, Advisory Council on

Historic Preservation, to Clyde M. DeHart, Jr., Regional Administrator, FAA,

Southwest Region, May ll, 1992 (reprinted at (A-64-66).

2 Mailes, Historical Analysis at 2-4.

2 FEIS at 3-15 to 3-16.

But it is precisely this type of balancing that NHPA requires

federal agencies to undertake — and to doso with an informed

understanding of the impacts of their actions on the nation’s

historic places and architectural heritage. Because the location

of the West Runway has already been finally determined by the

FAA, such an informed balancing of competing public interests,

after consultation with the Advisory Council, is now impossible.

It is to avoid such an exercise in futility that the NHPA man-

dates consideration of impacts on historic resources before deci-

sions are made, as the Court of Appeals for the Fifth Circuit

has recognized. See Vieux Carre Property Owners v. Brown;

cf. Sierra Club v. Marsh (NEPA); Commonwealth of

Massachusetts v. Watt (NEPA).

Despite the clarity of the language of Section 106, and despite

the logic of requiring review, consultation, and “tak[ing] into

account” before decisionmaking rather than after, the court

below, in contrast to the Fifth Circuit, upheld the FAA’s deci-

sion to approve the entire ALP before completing the Section

106 process.” The petitioner submits that the decision of the

court below was in error. This Court should resolve this con-

flict to avoid further inconsistent rulings on the timing of the

procedural requirements of Section 106 — the heart of NHPA.

2 Two Ninth Circuit panels have let stand decisions taken before the comple-

tion of the Section 106 process, but in circumstances very different from those

of the present case. See Yerger v. Robertson, 981 F.2d 460 (9th Cir. 1992); Sierra

Club v. Clark, 774 F.2d 1406 (9th Cir. 1985). In Yerger, the action was a deci-

sion not to renew a special use permit for a resort in a national forest, which

merely provided for the National Forest Service's reassumption of control over

the area and foreclosed no options with regard to preservation of the resort

building. 981 F.2d at 465. Sierra Club concerned the granting of a permit

for a motorcycle race on public land, a one-time event that was already over

by the time of the court’s decision.

Il. THE COURT BELOW DISREGARDED SETTLED

LAW ON SEGMENTATION IN APPROVING AN EIS

THAT WAS LIMITED TO THE EAST AND WEST

RUNWAYS AND OMITTED THE BALANCE OF THE

ALP

It is well settled that, in determining the scope of an EIS for

a proposed federal action, an agency may not “segment” its review

by dividing the action into its component parts to be analyzed

at different times, if at all. Rather, the agency should analyze

in one EIS the environmental impacts of all related components

that comprise the proposal. See, e.g., Thomas v. Peterson, 753

F.2d 754, 758-761 (9th Cir. 1985) (decision to construct road in

national forest without analyzing environmental impacts of

timber sales that the road would facilitate was improper segmen-

tation); City of Rochester v. United States Postal Service, 541 F.2d

967, 972-73 (2d Cir. 1976) (Postal Service decision to build mail

facility outside the city without analyzing environmental impacts

of removal of employees and abandonment of old facility in the

city’s central business district was improper segmentation);

Chelsea Neighborhood Ass’n v. United States Postal Service, 516

F.2d 378, 387-89 (2d Cir. 1975) (Postal Service determination to

construct vehicle maintenance facility without analyzing adverse

impacts of associated housing was improper segmentation, par-

ticularly where benefits of that housing were used to justify

project).

In determining the scope of its EIS, the FAA excluded from

environmental review most of the elements making up the DFW

Airport expansion project as shown in the ALP. Instead, the EIS

analyzed, in substance, only the East and West Runways. The

ROD, however, approved the ALP for the entire expansion pro-

ject, not just the East and West Runways. Moreover, the various

elements of the expansion project and ALP are interdependent.

Both the East and West Runways are needed in part because of

the increased capacity of the planned new terminals.”

* Oris Dunham, Executive Director of the DFW Airport, stated: “Without the

extra gates the new terminals would have, you dor't need to [build] the new

(Footnote continued)

Conversely, the new terminals are designed to serve the East

and West Runways and thus reduce airport delays. In either case,

the terminals’ exclusion from the EIS analysis, like exclusion of

the housing component in the Chelsea case, was improper.

In response to criticism from the United States Environmental

Protection Agency (the “EPA”’), among others, that the FAA im-

properly segmented its environmental analysis,* the FAA referred

to its regulations permitting it to “categorically exclude” from

environmental review many of the elements of the expansion pro-

ject, including the new terminals; to defer environmental review

of other elements until some time in the future; and to relegate

others to “technical” review. The court below deferred to the FAA’s

interpretation of its regulations and upheld the FAA’s exclusion

of those elemerts from its EIS. Rather than judging the FAA's

environmental review of the DFW Airport expansion project in

light of the purpose of NEPA and the well-established law on

segmentation, the court below merely considered whether the

FAA’s scoping process accorded with the FAA’s scoping regula-

tions, particularly its regulations on categorical exclusions,” and

noted that the FAA had considered the cumulative impacts of

some of the project elements otherwise excluded from the EIS.

See A-4-8. The court’s analysis was deficient on two counts.

runways. And without the new runways, the airlines won't build the new termin-

als and gates.” Fort Worth Star-Telegram, Sept. 29, 1989, § 1 at 2 (DEIS Com-

ments of Cities of Euless, Grapevine, and Irving, Appendix 128) (Rec. No. 33)).

8 The EPA commented: “By failing to include all of these [excluded] actions

and their associated impacts in a single EIS, a comprehensive environmental

assessment of the entire airport expansion has not been provided and disclosed

to the public. . .. [I]t appears that the FAA is segmenting the environmental

analysis of the entire airport expansion.” Letter from Robert E. Layton, Jr.,

Regional Administrator, EPA, to Clyde M. DeHart, Regional Administrator,

FAA, Southwest Region, Jan. 14, 1991 (FEIS, Appendix 17, at 44) (“EPA Let-

ter”) (A-5l).

* The FAA's use of categorical exclusions to shield from review multiple elements

of a comprehensive project presents an important issue that, to our knowledge,

has not been decided by this Court or any lower court. That issue is addressed

in Point III below.

First, it failed to consider whether the FAA’s scoping regula-

tions accorded with the law under NEPA. Although agencies

may certainly limit the circumstances in which they are

obligated to prepare EISs and limit the scope of those they do

prepare, the limits they devise must be subject to a rule of reason

and must not vitiate the purposes of NEPA. If the FAA's regula-

tions permit the FAA to avoid informing itself about the en-

vironmental impacts of 90 percent of a project of the magnitude

of the DFW Airport expansion before approving the ALP for

that project, then those regulations defy NEPA’s essential pur-

pose of fostering informed decisionmaking. See Robertson v.

Methow Valley Citizens Council, 490 U.S. at 349.

Second, the court below appears to have accepted the FAA's

few brief and conclusory paragraphs in the FEIS on “cumulative

impacts” as a substitute for full environmental analysis of the

numerous elements of the expansion project. Even if considera-

tion of cumulative impacts could properly substitute for full

analysis of the environmental impacts of a comprehensive pro-

ject, the most cursory review of the FAA's cumulative impact

sections reveals their inadequacy. The EIS sections labeled as

discussions of cumulative impacts consist essentially of a state-

ment that cumulative impacts were considered, a list of the

elements whose cumulative impacts were considered, and a con-

clusory statement that any cumulative impacts would not be

significant. A typical example, in its entirety, reads as follows:

4.4.1.5 POTENTIAL CUMULATIVE IMPACTS

The potential cumulative noise impacts of the pro-

posed runway development actions and other ADP ac-

tions were considered. These actions include: the new

terminal complex on the west side of the airport;

miscellaneous taxiway and apron improvements; two

air traffic control towers; ground transportation im-

provements; and expansion of the airtrans system.

These ADP actions are not anticipated to result in any

substantial additional increase in noise levels beyond

that which would occur from the operation of the

runways and their associated improvements alone.

They are not considered to materially influence air-

craft fleet mix, numbers of operations, times of opera-

tion, or runway/flight track utilization. Although the

proposed ground transportation improvements would

change the location of automobile traffic patterns,

these changes would occur entirely on airport

property.

FEIS at 4-72. Such conclusory statements “do not equip a deci-

sionmaker to make an informed decision about alternative

courses of action.” Natural Resources Defense Council, Inc. v.

Hodel, 865 F.2d 288, 298 (D.C. Cir. 1988).

By focusing only on the FAA's interpretation of and com-

pliance with its own environmental regulations, the court below

avoided the real issue of whether the FAA improperly segmented

its environmental review of the DFW Airport expansion pro-

ject. This Court should resolve the issue of whether an agency

may hide behind its regulations to avoid compliance with NEPA.

Ill. THIS COURT SHOULD RESOLVE THE NOVEL

QUESTION OF WHETHER NEPA PERMITS

MULTIPLE CATEGORICAL EXCLUSIONS FOR

SUBSTANTIAL ELEMENTS OF AN INTEGRATED

PROJECT

The regulations of the Council on Environmental Quality (the

“CEQ”) promulgated under NEPA define “categorical exclusion”

a category of actions which do not individually or

cumulatively have a significant effect on the human

environment and which have been found to have no

such effect in procedures adopted by a Federal agen-

cy in implementation of these regulations (§1507.3)

and for which, therefore, neither an environmental

assessment nor an environmental impact statement is

required.

40 C.ER. § 1508.4 (A-27). The CEQ regulations further provide:

An agency may decide in its procedures or otherwise,

to prepare environmental assessments for the reasons

stated in §1508.9 even though it is not required to do

so. Any procedures under this section shall provide for

extraordinary circumstances in which a normally ex-

cluded action may have a significant environmental

effect.

Id. In implementing the CEQ regulations, the FAA adopted FAA

Order 5050.4A, paragraph 23 of which lists numerous items that

“are categorically excluded from the requirement for formal en-

vironmental assessment.” (A-28-30).

On the authority of FAA Order 5050.4A, the FAA excluded

from environmental review the following elements of the DFW

Airport expansion project: (1) the new east and west passenger

terminal complexes; (2) taxiway and apron improvements; (3)

specific land acquisitions; (4) ground transportation

improvements and AIRTRANS improvements; and (5) air traf-

fic procedure actions above 3,000 feet AGL.” FEIS at 1-39

(A-34).

Noting the protests of other governmental agencies, including

the EPA,” against the FAA’s categorical exclusion of such huge

elements as a new $1,000,000,000 terminal complex on the west

side of the airport, the petitioners below argued that the FAA's

27 As noted above, the FAA used other theories to exclude other elements of

the expansion project from the EIS, induding: two runway extensions, highway

improvements and expansions, a regional commuter rail system, new or

relocated radar and navigational systems, two new air traffic contro] towers,

and a new Doppler Weather Radar system. FEIS at 1-38-39 (A-33-35).

* The EPA commented: “[TJhe construction of this very large $1,000,000,000

redesigned new terminal complex on the west side of the D/FW Airport and

associated new expanded auto parking facilities does not fit that category [of

actions that individually or cumulatively do not have a significant effect on

the human environment), and we have specifically and repeatedly asked that

the environmental impacts for this construction activity be assessed and in-

cluded in the current Draft EIS.” EPA Letter (A-53).

categorical exclusion of so many elements of the project was im-

proper. The court below considered only the issue of whether

the FAA’s categorical exclusions from the EIS accorded with FAA

Order 5050.4A. Regardless of whether the FAA complied with

its own regulations, the result here — the “piling up” of

categorical exclusions (and other exemptions), permitting most

of this monumental expansion project to escape environmental

review — flouts NEPA’s mandate of comprehensive EISs and

informed decisionmaking.

A few courts have addressed the propriety of agencies’ use

of categorical exclusions. In some cases, courts have upheld

specific uses of categorical exclusions. See, e.g., National Trust

for Historic Preservation v. Dole, 828 F.2d 776 (D.C. Cir. 1987);

West Houston Air Comm. v. FAA, 784 F.2d 702 (5th Cir. 1986);

City of Alexandria v. Federal Highway Admin., 756 F.2d 1014

(4th Cir. 1985); Sierra Club v. Hassell, 636 F.2d 1095 (5th Cir.

1981); Citizens for the Scenic Severn Bridge, Inc. v. Skinner,

802 F. Supp. 1325 (D. Md. 1991), affd, 972 F.2d 338 (4th Cir.

1992); Miron v. Menominee County, 795 F. Supp. 840 (W.D.

Mich. 1992). In other cases, courts have rejected specific agen-

cy uses of categorical exclusions. See, e.g., Jones v. Gordon, 792

F.2d 821 (9th Cir. 1986); Mississippi ex rel. Moore v. Marsh, 710

F. Supp. 1488 (S.D. Miss. 1989); Greenpeace U.S.A. v. Evans,

688 F. Supp. 579 (W.D. Wash. 1987). Each of those cases,

however, concerned the propriety of a single categorical exclu-

sion. None dealt with multiple categorical exclusions in the con-

text of a comprehensive project.

The danger that categorical exclusions pose to NEPA com-

pliance and to rational decisionmaking increases greatly with

the piling up of such exclusions. Moreover, the rationale for

categorical exclusions disappears with their multiplication. “By

definition, [categorical exclusions] are categories of actions that

have been predetermined not to involve significant environmen-

tal impacts, and therefore require no further agency analysis

absent extraordinary circumstances.” National Trust for Historic

Preservation v. Dole, 828 F.2d at 781. It is difficult to see how

an agency can predetermine that an undetermined combination

of an unknown number of categorically excluded actions will

have no significant environmental impacts.

Here, the categorical exclusions (and other exclusions) have

nearly swallowed up the environmental review of the DFW Air-

port expansion project. If the FAA’s use of such exclusions is

allowed to stand, other agencies will likely follow its practice.

This Court should take this opportunity to resolve the issue of

whether such practice complies with NEPA.

CONCLUSION

For the reasons stated above, this Court should issue a writ

of certiorari to the Court of Appeals for the District of Colum-

bia Circuit in this case.

Dated: New York, New York

September 6, 1994

Respectfully submitted,

Rosert H. Power STEPHEN L. Kass

CHRISTOPHER CASO Counsel of Record

POWER & DEATHERAGE

1311 W. Irving Boulevard BERLE, KASS & CASE

Irving, Texas 75061-7220 45 Rockefeller Plaza

(214) 259-1678 New York, New York 10111

(212) 765-1800

Of Counsel:

JEAN M. McCarro.i

Attorneys for Petitioner

City of Grapevine, Texas

eA RGR Es

1 rae

INDEX TO APPENDIX

Opinion of the Court of Appeals in City of

Grapevine et al. v. Department of

Transportation et al., 17 F.3d 1502 (D.C.

I nrg crak tess een cke se se eeeees.

Order of the Court of Appeals denying

petition for rehearing in City of Grapevine

et al. v. Department of Transportation et

al., No. 92-1151 (D.C. Cir. May 9, 1994) .

Judgment of the Court of Appeals in City

of Grapevine et al. v. Department of

Transportation et al. and consolidated

cases, Nos. 92-1151, 92-1158, and 92-1247

(D.C. Cir. Nov. 19, 1993) ....----------

Section 106 of the National Historic

Protection Act, as amended, 16 U.S.C. §

Excerpts from Regulations of the Advisory

Council on Historic Preservation for the

Section 106 Process, 36 C.F.R. §§ 800.4-.6

Excerpt from Regulations of the Council

on Environmental Quality on Compliance

with the National Environmental Policy

Act, 40 C.F.R. § 1508.4 .....-----------

Excerpts from Federal Aviation

Administration Order 5050.4A, 4{ 23-24 ..

Final Environmental Impact Statement,

December 1991, pages 1-38 to 1-39.......

Excerpts from Record of Decision, April 6,

1992, pages 1, 42-43, 72-74 .....--------

Page

A-l

A-16

A-17

A-18

A-19

A-27

A-28

A-32

A-36

INDEX TO APPENDIX

Page

10. Letter from Claudia Nissley, Advisory

Council on Historic Preservation, to

Vernell Sturns, Executive Director,

Dallas Ft. Worth International Airport,

September 28, 1993 ......--------+>: A-42

11. Letter from Robert E. Layton, Jr.,

Environmental Protection Agency, to

Clyde M. DeHart, Jr., Regional

Administrator, FAA, Southwest

Region, January 14, 1991.........--. A-50

12. Letter from Claudia Nissley, Advisory

Council on Historic Preservation, to

Hugh W. Lyon, Assistant Division

Manager, FAA, Southwest Region,

June 8, 1993 ........---e secre reer: A-61

13. Letter from Claudia Nissley, Advisory

Council on Historic Preservation, to

Clyde M. DeHart, Jr., Regional

Administrator, FAA, Southwest

Region, May 11, 1992 ..........-----: A-64

A-l

APPENDIX

Opinion of the United States Court of Appeals,

Dated March 18, 1994

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued Octobe: 1, 1993 Decided March 18, 1994

No. 92-1151, et al.

Orry oF GRAPEVINE, TEXAS, ET AL.,

PETITIONERS

DEPARTMENT OF TRANSPORTATION, ET AL.,

RESPONDENTS

DaALLas/ Fort WorTH INTERNATIONAL AIRPORT BOARD,

INTERVENOR

Petition for Review of an Order of

the Department of Transportation

Eliot R. Cutler argued the cause for petitioners. With him

on the briefs was Perry M. Rosen. Peter J. Kirsch, Robert H.

Power, and Christopher Caso entered an appearance for peti-

tioners in No. 92-1151. Peter J. Kirsch and James W. Deatherage

entered an appearance for petitioner in No. 92-1158. John

Longstreth entered an appearance for petitioners in No. 92-1247.

Albert M. Ferlo, Jr., Attorney, United States Department of

Justice, argued the ca:se for respondents. With him on the brief

A-2

was Peter R. Steenland, Jr., Acting Deputy Assistant Attorney

General, United States Department of Justice.

Michael Schneiderman argued the cause for intervenor

Dallas/Fort Worth International Airport Board. With him on

the brief were Kevin E. Cox and Michael M. Conway.

On the brief for amici curiae The Church in Dallas, The

Church in Irving, and the Living Stream Ministry was Range-

ly Wallace.

On the brief for amicus curiae Natural Resources Defense

Council was S. Jacob Scherr.

On the brief for amicus curiae National Trust for Historic

Preservation in the United States was Elizabeth S. Merritt. Paul

W. Edmondson and Andrea C. Ferster entered an appearance.

Before Mixva, Chief Judge, BucKLEy, and GINSBURG, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GinsBurRG.

Ginssurc, Circuit Judge: Various individuals and political

subdivisions of the State of Texas petition for review of the

Federal Aviation Administration’s decision approving a plan to

expand the Dallas/Fort Worth International Airport and declar-

ing portions of the expansion project eligible for federal fund-

ing. The petitioners contend that: (1) the FAA’s categoric ad ex-

clusion of some elements of the expansion project from considera-

tion in its Final Environmental Impact Statement (FEIS) renders _

that document inadequate under the FAA's regulations im-

plementing the National Environmental Policy Act, 42 U.S.C.

§ 432] et seq.; (2) the FAA failed to consider the environmen-

tal impact of all reasonable and feasible alternatives to the proj-

ect, in violation of Council on Environmental Quality (CEQ)

regulations implementing the NEPA; (3) the FAA erred in deter-

mining that the airport project would not “use” historic prop-

erties within the meaning of § 4(f) of the Department of

Transportation (DOT) Act, 49 U.S.C. § 303(c); and (4) the FAA

- eae ee Pe ee ee _

Ae3

violated the National Historic Preservation Act (NHPA), 16

US.C. § 470 et seq., by issuing its Record of Decision before

review under the NHPA was complete. For the reasons set forth

below, we deny the petitions for review in all respects.

I. Background

In 1988, the DFW Airport Board proposed to expand the air-

port and asked the FAA to fund eligible portions of the project.

The Board’s proposed Airport Layout Plan (ALP) contemplated

the addition of two runways, two terminals, and more than 400

acres of parking, as well as cargo, hangar, maintenance, and

other support facilities. Existing runways would also be expand-

ed, while some terminals would be razed.

Under the NEPA, the FAA was required as part of its approval

process to assess the environmental effects of the project. 42

U.S.C. § 4332(2)(C). Accordingly, in August 1990 the agency

solicited comments on a Draft EIS (DEIS), and later (in January

1992) released the FEIS. Still later, the FAA gave “final approval”

to the ALP and declared the project eligible for federal funding.

See FAA Record of Decision, April 1992. The FAA specifically

provided, however, that no expenditures for construction of the

West Runway would be permitted until the review process re-

quired by the NHPA was completed. Three cities and a school

district in which the airport is located, and certain owners of

undeveloped property in the area, now seek review of the FEIS

and of the FAA’s Decision, pursuant to 49 U.S.C. § 1486.

II. Analysis

The petitioners raise various challenges under the FAA's

regulations, CEQ regulations, the DOT Act, and the NHPA.

A. Exclusions from the FEIS

The NEPA requires each federal agency to consider in an EIS

the environmental impact of “every recommendation or report

on proposals for... major federal actions significantly affecting

the quality of the human environment.” 42 U.S.C. § 4332(2)(C).

A-4

The EIS must include, among other things, a “detailed state-

ment” describing the reasonably foreseeable environmental im-

pact both of the proposed federal action and of any feasible alter-

native(s) to the proposed federal action, including non-action.

42 U.S.C. §§ 4332(2)(C)(i), (iii). Upon review of the EIS, our

job is to ensure that the agency took a “hard look” at the en-

vironmental consequences of its decision to go forward with the

project. Natural Resources Defense Council, Inc. v. Hodel, 865

F.2d 288, 294 (D.C. Cir. 1988).

The petitioners contend that the FEIS fails the “hard look”

test. The gravamen of their argument is that the FAA improperly

excluded substantial portions of the ALP from its environmen-

tal review, thereby failing to consider the full environmental im-

pact of the project as requred under the FAA's regulations govern-

ing the proper scope of an EIS.

The FAA described the “proposed federal action” for which

it prepared the FEIS as “the Federal approval and funding par-

ticipation in the construction of proposed new Runway 16/34

East, scheduled to be operational in 1992, and proposed new

Runway 16/34 West, scheduled to be operational in 1997, and

the runway-related improvements and safety actions associated

with their operation at the [DFW] Airport.” The FAA deter-

mined that certain elements of the project, such as ground

transportation improvements, could be categorically excluded

from individualized consideration in the FEIS.

In Appendix 3 of the FEIS the FAA explained that it

categorically excluded those aspects of the project under FAA

Order 5050.4A § 23. That regulation implements a CEQ rule,

40 C.F.R. § 1508.4, that authorizes an agency to list in advance

the types of federal actions within its jurisdiction for which an

Environmental Assessment (EA) or an EIS normally will not

be required. The petitions do not deny that the elements that

the FAA excluded in this instance are all listed in { 23; rather

they claim that the FAA was required to examine their effects

anyway pursuant either to { 24, which enumerates various

characteristics that preclude exclusion under { 23, or pursuant

to ¢ 26, which requires consideration of “the overall cumulative

A-5

impact of the proposed action and the consequences of subse-

quent related actions.”

1. Exceptional Circumstances Under 5050.4A { 24

Paragraph 24 provides that “[ p]roposed Federal actions which

are normally categorically excluded but which have any of the

following characteristics shall be the subject of an environmental

assessment...

a. An action that is likely to have an effect on prop-

erties protected under section 106 of the Historic

Preservation Act of 1966. ..or use section 4(f) lands. ...

b. An action that is likely to be highly controversial

on environmental grounds. A proposed F' ederal action

is considered highly controversial when the action is

opposed on environmental grounds by a Federal, state,

or local government agency or a substantial number

of the persons affected by such action....

c. An action that is likely to have a significant im-

pact on natural, ecological, cultural, or scenic

resources of national, state, or local significance. ...

d. An action that is likely to be highly controversial

with respect to the availability of adequate relocation

housing. ...

e. An action that is likely to. . .cause substantial divi-

sion or disruption of an established community, or

disrupt orderly, planned development or. . . increase

surface traffic congestion. ...

f. An action that is likely to... have a significant im-

pact on noise levels of noise sensitive areas; [h]ave a

significant impact on air or water quality or violate

the local, state, or Federal standards for air quality;

[or hJave a significant impact on water quality or con-

taminate a public water system; Or.. .[b]e inconsistent

with any Federal, state, or local law or administrative

determination relating to the environment.

A-6

g. Other action that is likely to directly or indirectly

affect human beings by creating a significant impact

on the environment.”

The petitioners do not claim that each excluded element,

standing alone, satisfies a { 24 criterion; rather, they argue more

broadly that “[t]he Expansion Project met not just one, but most

of the criteria set forth in paragraph 24.” (Emphasis added.) For

example, invoking { 24(b) they point out that each of the peti-

tioners opposed the airport expansion project, and that each of

the petitioners as well as the Attorney General of Texas, the DOT,

and the Environmental Protection Agency (EPA) submitted com-

ments questioning the adequacy of the FAA’s environmental

review of the project. Presumably with { 24(e) in mind, they

contend that the proposed ALP would disrupt community plan-

ning that had been carried out in reliance upon an airport master

plan devised in the 1970’s. “In short,” they say, “even the FAA's

own regulations obliged it to review the entire expansion proj-

ect, including all the portions it ignored as categorically exclud-

ed.”

The FAA, on the other hand, maintains that the petitioners

improperly aggregate the excluded elements into an “action”

precluded by 4 24 from exclusion. According to the agency, an

element that is otherwise excluded pursuant to 4 23—a new ter-

minal, or the expansion of a runway, for example—is not ex-

cludable only if that element by itself meets one of the criteria

of { 24.

The FAA's reading of its own regulation is not unreasonable.

By its terms { 24 applies to “[p]roposed federal actions which

are normally categorically excluded” pursuant to { 23; under

¢ 23 the FAA categorically excluded from the FEIS only par-

ticular elements of the ALP. Therefore, when { 24 precludes

the exclusion of, for example, “[an] action that is likely to be

highly controversial on environmental grounds,” it refers to a

specific action listed in { 23 as eligible for categorical exclu-

sion, not to the larger project of which it is but a small piece.

Ae7

The petitioners’ attempt to invoke the requirements of ¢ 24

because “[t]he Expansion Project” as a whole meets the criteria

of that paragraph is contrary to the whole tenor of Order

5050.4A, which addresses the requirements for separately

evaluating the environmental impact of particular elements. See,

e.g., | 22a(5) (requiring an EA for “construction . . . of entrance

or service road connections which adversely affect the capaci-

ty of such roads”; { 23a(4) (excluding from environmental review

“construction or expansion of passenger handling facilities”). For

any project the environmental effects of which are significant

enough to require an EIS in the first place, the petitioners’ ap-

proach would negate altogether the possibility of excluding any

individual element under { 23. This consequence of the peti-

tioners’ interpretation only highlights the reasonableness of the

FAA's interpretation of its regulation.

2. Cumulative Impact Under 5050.4A 4 26

Paragraph 26 of the same regulation provides generally that

“(ijn determining whether an environmental impact statement

is required for a proposed Federal action, it is necessary to con-

sider the overall cumulative impact of the proposed action and

consequences of subsequent related actions.” The petitioners con-

tend that the FAA granted unconditional approval to every ele-

ment of the expansion project but avoided considering the

cumulative impact of many of the individual elements of the

project by labelling them “independent” or “speculative.” The

FAA points out that it did consider the environmental impact

of some elements that it deemed independent or speculative

when it considered the cumulative impact of categorically ex-

cluded elements of the project pursuant to { 26. In any event

the FAA maintains that, although it approved the ALP uncon-

ditionally, “the ability of DFW and the FAA to actually imple-

ment many of the features shown on that document is in fact

conditioned on further review and analysis by the FAA,” im-

plying that any environmental impact slighted in the FEIS will

be the subject of further consideration.

At several points in the FEIS, the FAA did indeed consider

the cumulative impacts of categorically excluded elements of

A-8

the expansion project — upon land use, air quality, endangered

and threatened species, and wetlands. The petitioners raise no

challenge to the adequacy of the FAA’ treatment of the

cumulative impact of those excluded projects; nor do they

challenge the FAA’s conclusion that the cumulative impact of

the excluded projects was not significant.

Our review of the FEIS suggests that the FAA considered the

cumulative impact of all of the “independent” and of most if

not all of the “speculative” elements that the petitioners com-

plain were improperly excluded from consideration in the FEIS.

We note, however, that certain elements that the EPA claimed

in its comments on the DEIS were improperly excluded — for

example, demolition of existing terminals and of a hotel—do

not appear at those places in the FEIS to which the FAA points

in order to show that it considered otherwise excluded elements

when it assessed the cumulative impact of the project. Unless

the FAA considered those elements elsewhere in the FEIS, they

can not be deemed part of the approved ALP insofar as the FAA's

duties under the NEPA are concerned. In other words, if the

FAA determined that review of an element of the ALP would

have been premature when it was considering the cumulative

impact of the project in the FEIS, then such review must be

done when the matter is no longer too speculative to warrant it.

B. Consideration of Alternatives

According to the CEQ, the “heart” of an EIS should be the

agency’s presentation of “the environmental impacts of the pro-

posal and the alternatives in comparative form, thus sharply

defining the issues and providing a clear basis for choice among

options by the decisionmaker and the public.” 40 CFR § 1502.14.

The range of alternatives that the agency must consider is not

infinite, of course, but it does include all “feasible” or

“reasonable” alternatives to the proposed action. 40 CFR

§§ 1502.14(a)-(c), 1508.25(b)(2). This “rule of reason governs

‘both which alternatives the agency must discuss, and the ex-

tent to which it must discuss them.” Citizens Against Burlington,

Inc. v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991) (emphases in

original).

A-Q

The petitioners argue that the FAA improperly curtailed its

consideration of alternatives by the way in which it stated the

purpose of the airport expansion project. In the DEIS, the FAA

said that the purpose of the project was to meet increased de-

mand at the DFW Airport; thus it considered only alternative

runway configurations at the airport itself. In their comments

on the DEIS, the EPA, the DOT, and the Attorney General of

Texas criticized the FAA for failing to consider alternatives off

the DFW Airport site. In the FEIS, the FAA described the pur-

poses of the project to include economic development of the

Dallas/Fort Worth area and meeting national and international

demand for a hub airport. It briefly considered and rejected

off-site alternatives to the expansion plan, including construc-

tion of a new regional airport and construction of a “wayport”

facility designed to handle only connecting traffic. The agency

concluded that neither a new airport nor a wayport could be

completed in time to alleviate problems at the DFW Airport,

and that a wayport, which is as yet an unproven concept, could

also be detrimental to the level of non-stop and international

service to the DFW Airport. As the only “viable alternatives”

to the proposed plan, therefore, the different possible runway

configurations were addressed in more detail.

First, the petitioners (and some of the amici) argue that it

was improper for the FAA, in defining the purpose of the proj-

ect, to consider the economic goals of the project’s sponsor, the

DFW Airport Board. This argument is foreclosed, however, by

our decision in Citizens Against Burlington: Per then-Judge

Thomas, where a federal agency is not the sponsor of a project,

“the Federal government’s consideration of alternatives may ac-

cord substantial weight to the preferences of the applicant and/or

sponsor in the siting and design of the project.” 938 F.2d at

197-98. In formulating the EIS requirement, the “Congress did

not expect agencies to determine for the applicant what the goals

of the applicant’s proposal should be.” Id. at 199. While it is

not clear whether federal funds were committed to the project

in Citizens Against Burlington, we see no basis for holding that

where, as here, federal funds would be involved — assuming the

project passes environmental muster — the agency may not con-

sider the sponsor’s goals to the same extent. Therefore, we

A-10

conclude that the FAA’s statement of the purpose of the airport

expansion project did not improperly constrain its considera-

tion of alternatives in the FEIS.

Second, the petitioners contend that the FAA, in response to

criticism of the scope of the alternatives it considered in the

DEIS, merely “manipulate[d] the statements of need and pur-

pose to avoid considering any alternatives except for those that

achieve what has been the FAA’s unmistakable goal from day

one — the expansion of DFW Airport.” We pass over the facile

implication that the FAA harbored an improper motive for

changing the statement of purpose in the FEIS. The very pur-

pose of a DEIS is to elicit suggestions for change. The resulting

FEIS must be evaluated for what it is, not for why the drafter

may have made it so. Here the record shows that the FAA gave

reasoned consideration to off-site alternatives to the proposed

project. Therefore, we can not hold that the FAA failed to take

a “hard look” at the environmental impact of the alternatives

to the project. Hodel, 865 F.2d at 294.

C. Noise Measurement Metholodogy

Section 4(f) of the DOT Act, 49 U.S.C. § 303 (1983), makes

it “the policy of the United States Government that special ef-

fort should be made to preserve the natural beauty of the coun-

tryside and public park and recreation lands, wildlife and water-

fowl refuges, and historic sites.” Accordingly, § 303(c) provides:

The Secretary [of Transportation] may approve a

transportation program or project requiring the

use... of publicly owned land of a public park, recrea-

tion area, or wildlife and waterfowl refuge of national,

State, or local significance, or land of an historic site

of national, State, or local significance. ..only if —

(1) there is no prudent and feasible alternative to us-

ing that land; and

(2) the program or project includes all possible plan-

ning to minimize harm to the park, recreation area,

A-ll

wildlife and waterfowl refuge, or historic site resulting

from the use.

For the purpose of § 4(f), noise that is inconsistent with a parcel

of land’s continuing to serve its recreational, refuge, or historical

purpose is a “use” of that land. Allison v. United States DOT,

908 F.2d 1024, 1028 (D.C. Cir. 1990).

The FAA, applying its standard “Part 150” noise measurement

technique, as set forth at Appendix A to 14 C.F.R. § 150, found

that the protected areas—viz., parks and historic sites—

potentially affected by the DFW Airport expansion would not

be “used” within the meaning of § 4(f). The Part 150 guidelines

rely upon weighted average day and night sound level

measurements (so-called Ldn) “for the analysis and characteriza-

tion of multiple aircraft noise events and for determining the

cumulative exposure of individuals to noise around airports.”

14 CFR. Pt. 150, App. A. § A150.3(b). The guidelines provide

that a recreational area is “used” by noise at a level of 70 to 75

Ldn. There is no guideline specifically for historic sites in Part

150. As it turns out, however, all the historic sites at issue in this

case are in fact residential properties, and the FAA therefore

used the guideline for residences, which is 65 Ldn. Id. at App.

A Table 1.

The petitioners argue that use of the Part 150 guidelines is

inappropriate because they were not designed for the purpose

of § 4(f) but in connection with other types of land use and fund-

ing decisions. They also contend that it was arbitrary and

capricious for the FAA not to rely upon indicators measuring

the intensity of single noise events, or upon “a computer simula-

tion technique” that “replicate[s] the aircraft noise that people

actually will hear.”

As set forth in its Decision, the FAA takes the position that

the Ldn system is the “best measure of noise exposure to iden-

tify significant impact on the quality of the human environment

and is the only noise metric with a substantial body of scien-

tific data on the reactions of people to noise.” This court has

previously deferred to the agency's expertise in choosing the

A-12

appropriate way to measure noise; indeed we have specifically

approved the FAA’s use of the Ldn metric. See Sierra Club v.

DOT, 753 F.2d 120, 128 (D.C. Cir. 1985); Citizens Against Bur-

lington, 938 F.2d at 201. The petitioners offer no distinction upon

which we could withhold our approval in this case.

Furthermore, we note that in 1990 the EPA and the FAA

undertook a joint study of noise measurement methodology, and

that pending the completion of their study the FAA agreed to

include a single event noise analysis in its assessment of impacts

at a number of airport projects, including the DFW Airport ex-

pansion project. Accordingly, although the FAA’s noise analysis

in this case “was primarily based upon the development of Ldn

contours,” in considering the environmental effect of noise caused

by the expansion project the agency also “estimat[ed] levels of

annoyance, conduct([ed] a time-above threshold analysis, deter-

min{ed] single-event noise levels and evaluat[ed] the potential

noise impacts of airspace actions occurring at altitudes of up

to 18,000 feet above ground level.” In view of our prior deci-

sions, and of the FAA’s ongoing cooperation with the EPA to

study different methods of evaluating noise pollution, the agen-

cy’s “primary reliance” upon the Ldn metric in this case was

surely neither arbitrary nor capricious.

The petitioners also challenge the FAA's application to historic

sites of the Part 150 standard for “residential properties.” As they

point out, we have previously noted that “while it is reasonable

for the agency to rely on guidelines in determining whether a

‘use’ of section 4(f) lands has occurred, [the standard used] must

bear some relevance to the value, significance, and enjoyment

of the lands at issue.” Allison v. DOT, 908 F.2d at 1029. In that

case we held that the DOT could not apply the standard for

“recreational parks,” which include amusement parks and recrea-

tional waters, to determine whether airport noise would con-

structively use a wildlife preserve, the purpose of which is to

provide “tranquility and the opportunity to observe nature un-

disturbed by human activity.” Id.

In this case the historic sites at issue are in daily use as “residen-

tial properties.” There might well be instances in which the 65

ie ¢ g ase EGP See HO Sa LAO EE RY ea 5

PR oS no NS Mah a tie ase ce eA Pueh ete te se i eRe laa EEE EP POS Bi Ba

A-13

Ldn standard for residential properties would be inadequate

to protect the particular values that led to the designation of

a site as historic. Consider, for example, a village preserved

specifically in order to convey the atmosphere of rural life in

an earlier (and presumably a quieter) century. Cf. Communities,

Inc. v. Busey, 956 F.2d 619, 624 (6th Cir. 1992) (suggesting no

§ 4(f) use because “noise would not affect the relevant

characteristics of [an historic neighborhood] — its architecture

and its place in history”). There is no reason, however, to believe

that the use standard applicable to a private home is inapposite

merely because the home is historic. Therefore, we uphold in

all respects the noise measurement methodology that the FAA

used in this case. |

D. Conditional Approval of the West Runway

The petitioners and the National Trust for Historic Preserva-

tion, amicus, argue that the FAA unlawfully approved the pro-

posed West Runway before completion of the review process re-

quired by the NHPA, 16 U.S.C. §§ 470-470w. That Act requires

each federal agency to take responsibility for the impact that

its activities may have upon historic resources, and establishes

the Advisory Council on Historic Preservation (ACHP) to ad-

minister the Act. Section 470f (Title I, Section 106) requires that:

The head of any Federal agency . . .shall, prior to the

approval of the expenditure of any Federal funds on

the undertaking. . . take into account the effect of the

undertaking on any district, site, building, structure,

or object that is included in or eligible for inclusion

in the National Register [of Historic Places]. The head

of any such Federal agency shall afford the

[ACHP]. ..a reasonable opportunity to comment with

regard to such undertaking.

Under the regulations of the ACHP, the federal agency must,

in consultation with the relevant State Historic Preservation Of-

ficer, identify the project’s “area of potential effect,” locate all

historic properties in that area, and assess the actual effect of

the project upon those specific properties. 36 C.F.R. §§ 800.4(b),

A-14

800.4(c), 800.5. If the agency determines that the project will

have no adverse effect upon any historic property, then the ACHP

may either agree with such a finding or object and propose

changes. If the agency does not accept the ACHP’s changes, then

the ACHP will itself enter a finding of adverse effect. Id. at

§ 800.5(d)(2). The agency, the ACHP, and the State Historic

Preservation Officer are then to consult in order to “seek ways

to avoid or reduce” the adverse effect. § 800.5(e).

In its Decision the FAA conditioned final approval of the West

Runway upon its subsequent reevaluation, pursuant to Order

5050.4A, of the runway’s impact; the agency specifically noted

that as part of that reevaluation it would “take into account the

conclusions and recommendations arising out of the consulta-

tion process required by Section 106” of the NHPA. Seven months

later (in November 1992) the FAA transmitted to the Texas

Historical Commission its final assessment of the effects of the

West Runway. After a further six-month period of deliberation

the FAA, the Texas Historical Commission, and the DFW Air-

port Board entered into an agreement finding that there would

be no adverse effect within the meaning of the NHPA, and sub-

mitted that finding to the ACHP. The ACHP then informed the

FAA that it disagreed with the finding and that it wished to

consult with the FAA about alternatives and mitigation

measures.

Throughout these events the FAA followed the procedure

prescribed by the ACHP’s regulations. Much of the relevant ac-

tivity, however, took place after the FAA had issued its Deci-

sion. Although it is of course desirable for the § 106 process to

occur as early as possible in a project’s planning stage, we do

not agree with the petitioners that in this case the FAA’s condi-

tional approval of the West Runway violated any requirement

of the NHPA. Merely by issuing its Decision the FAA did not

“approv[e] the expenditure of any Federal funds” for the run-

way. Recall that the FAA is not the sponsor of the airport proj-

ect; if the DFW Airport Board commits its own resources to the

West Runway — for further planning, engineering, or what have

you short of construction — although the runway was only con-

ditionally approved, then it does so at the risk of losing its

A-15

investment should the § 106 process later turn up a significant

adverse effect and the FAA withdraw its approval. In sum,

because the FAA’s approval of the West Runway was expressly

conditioned upon completion of the § 106 process, we find here

no violation of the NHPA.

III. Conclusion

The scope of the FEIS and of the altert\atives that the FAA

considers therein demonstrate that the agency took a “hard look”

at the DFW Airport expansion project and fully complied with

its own and the CEQ’s regulations implementing the NEPA. The

FAA’s primary reliance upon its established Ldw noise measure-

ment methodology for the purpose of determining whether the

project would “use” any historic property withiu the meaning

of § 4(f) of the DOT Act was not arbitrary or capricious. Nor

do we find a violation of the NHPA in the FAAS conditional

approval of the West Runway pending completior: of the con-

sultations required by § 106 of that Act. For these ivasons, the

petitions for review are

Denied.

A-16

Order of the Court of Appeals Denying Petition for Rehearing,

Dated May 9, 1994

United States Court of Appeals

For THE Districr or CoLuMBIA CirRcuIT

No. 92-1151 September Term, 1993

City of Grapevine, Texas,

City of Euless, Texas, and

City of Irving, Texas,

Petitioners

Vv.

Department of Transportation; Andrew H. Card, Department

of Transportation, in his official capacity; Federal Aviation Ad-

ministration and Barry Lambert Harris, Acting Administrator

of the Federal Aviation Administration, in his official capacity,

Respondents

and Consolidated Cases

BEFORE: Mikva, Chief Judge; Buckley and Ginsburg, Circuit

Judges

ORDER

Upon consideration of petitioners’ Petition for Rehearing and

the brief in support thereof, it is

ORDERED, by the Court, that the petition is denied.

Per Curiam

FOR THE COURT:

RON GARVIN, CLERK

BY: /s/ Robert A. Bonner

Robert A. Bonner

Deputy Clerk

A-17

Judgment of the Court of Appeals, Dated November 19, 1993

United States Court of Appeals

For THE District OF COLUMBIA CrIRCUIT

No. 92-1151 September Term, 1993

City of Grapevine, Texas, et al.,

Petitioners

Department of Transportation, et al.,

Respondents

and consolidated cases 92-1158 and 92-1247

PETITIONS FOR REVIEW OF AN ORDER OF

THE FEDERAL AVIATION ADMINISTRATION

BEFORE: Mikva, Chief Judge, Buckley and Ginsburg, Circuit

Judges.

JUDGMENT

These causes came on to be heard on the petitions for review

of an order of the Federal Aviation Administration and were

argued by counsel. On consideration thereof, it is

ORDER and ADJUDGED, by the Court, that the petitions

for review are denied.

An Opinion of the Court will issue at a later date.

Per Curiam

FOR THE COURT:

/s/ Ron Garvin

RON GARVIN, CLERK

Date: November 19, 1993

A-18

Section 106 of the National Historic Preservation Act

§ 470f. Effect of Federal undertakings upon property listed

in National Register; comment by Advisory Coun-

cil on Historic Preservation

The head of any Federal agency having direct or indirect

jurisdiction over a proposed Federal or federally assisted under-

taking in any State and the head of any Federal department or

independent agency having authority to license any undertak-

ing shall, prior to the approval of the expenditure of any Federal

funds on the undertaking or prior to the issuance of any license,

as the case may be, take into account the effect of the under-

taking on any district, site, building, structure, or object that

is included in or eligible for inclusion in the National Register.

The head of any such Federal agency shall afford the Advisory

Council on Historic Preservation established under part B of

this subchapter a reasonable opportunity to comment with re-

gard to such undertaking.

A-19

Excerpts

Regulations of the Advisory Council on Historic

Preservation, 36 C.F-R. §§ 800.4-.6

§ 800.4 Identifying historic properties.

(a) Assessing information needs. (1) Following a determina-

tion by the Agency Official that a proposed project, activity,

or program constitutes an undertaking and after establishing

the undertaking’s area of potential effects, the Agency Official

shall:

(i) Review existing information on historic properties poten-

tially affected by the undertaking, including any data concern-

ing the likelihood that undentified historic properties exist in

the area of potential effects;

(ii) Request the views of the State Historic Preservation Of-

ficer on further actions to identify historic properties that may

be affected; and

(iii) Seek information in accordance with agency planning

processes from local governments, Indian tribes, public and

private organizations, and other parties likely to have knowledge

of or concerns with historic properties in the area.

(2) Based on this assessment, the Agency Official should deter-

mine any need for further actions, such as field surveys and

predictive modeling, to identify historic properties.

(b) Locating historic properties. In consultation with the State

Historic Preservation Officer, the Agency Official shall make

a reasonable and good faith effort to identify historic proper-

ties that may be affected by the undertaking and gather suffi-

cient information to evaluate the eligibility of these properties

for the National Register. Efforts to identify historic properties

should follow the Secretary’s “Standards and Guidelines for Ar-

cheology and Historic Preservation” (48 FR 44716) and agency

programs to meet the requirements of section 110(a)(2) of the Act.

_—_—

A-20

the State Historic Preservation Officer and following the

Secretary’s Standards and Guidelines for Evaluation, the Agency

Official shall apply the National Register Criteria to proper-

ties that may be affected by the undertaking and that have not

been previously evaluated for National Register eligibility. The

passage of time or changing perceptions of significance may

justify reevaluation of properties that were previously determined

to eligible or ineligible.

(2) If the Agency Official and the State Historic Preserva-

tion Officer agree that a property is eligible under the criteria,

the property shall be considered eligible for the National Register

for section 106 purposes.

(3) If the Agency Official and the State Historic Preserva-

tion Officer agree that the criteria are not met, the property

shall be considered not eligible for the National Register for sec-

tion 106 purposes.

(4) If the Agency Official and the State Historic Preserva-

tion Officer do not agree, or if the Council or the Secretary so

request, the Agency Official shall obtain a determination from

the Secretary of the Interior pursuant to the applicable National

Park Service regulations.

(5) If the State Historic Preservation Officer does not pro-

vide views, then the State Historic Preservation Officer is

presumed to agree with the Agency Official’s determination for

the purpose of this subsection.

(a) When no historic properties are found. If the Agency Of-

ficial determines in accordance with § 800.4 paragraphs (a)

through (c) that there are no historic properties that may be

affected by the undertaking, the Agency Official shall provide

documentation of this finding to the State Historic Preserva-

tion Officer. The Agency Official should notify interested per-

sons and parties known to be interested in the undertaking and

its possible effects on historic properties and make the documen-

tation available to the public. In these circumstances, the Agency

*. oe 4 3 i> -¥ 5 Ae -

7 eT a REE A PLE Oe Ie ee ey eee OP Pe Pee Mee Ce eS A

A-21

Official is not required to take further steps in the section 106

process.

(e) When historic properties are found. If there are historic

properties that the undertaking may affect, the Agency official

shall assess the effects in accordance with § 800.5.

§ 800.5 Assessing effects.

(a) Applying the Criteria of Effect. In consultation with the

State Historic Preservation Officer, the Agency Official shall

apply the Criteria of Effect (§ 800.9(a)) to historic properties

that may be affected, giving consideration to the views, if any,

of interested persons.

(b) When no effect is found. If the Agency Official finds the

undertaking will have no effect on historic properties, the Agency

Official shall notify the State Historic Preservation Officer and

interested persons who have made their concerns known to the

Agency Official and document the findings, which shall be

available for public inspection. Unless the State Historic Preser-

vation Officer objects within 15 days of receiving such notice,

the Agency Official is not required to take any further steps in

the section 106 process. If the State Historic Preservation Of-

ficer files a timely objection, then the procedures described in

§ 800.5(c) are followed.

ties is found, the Agency Official, in consultation with the State

Historic Preservation Officer, shall apply the Criteria of Adverse

Effect (§ 800.9(b)) to determine whether the effect of the under-

taking should be considered adverse.

(d) When the effect is not considered adverse. (1) If the Agen-

cy Official finds the effect is not adverse, the Agency Official

shall:

(i) Obtain the State Historic Preservation Officer's concur-

rence with the finding and notify and submit to the Council

summary documentation, which shall be available for public

inspection; or

A-22

(ii) Submit the finding with necessary documentation

(§ 800.8(a)) to the Council for a 30-day review period and notify

the State Historic Preservation Officer.

(2) If the Council does not object to the finding of the Agency

Official within 30 days of receipt of notice, or if the Council

objects but proposes changes that the Agency Official accepts,

the Agency Official is not required to take any further steps in

the section 106 process other than to comply with any agree-

ment with the State Historic Preservation Officer or Council

concerning the undertaking. If the Council objects and the Agen-

cy Official does not agree with changes proposed by the Coun-

cil, then the effect shall be considered adverse.

(e) When the effect is adverse. If an adverse effect on historic

properties is found, the Agency Official shall notify the Coun-

cil and shall consult with the State Historic Preservation Of-

ficer to seek ways to avoid or reduce the effects on historic prop-

erties. Either the Agency Official or the State Historic Preser-

vation Officer may request the Council to participate. The Coun-

cil may participate in the consultation without such a request.

(1) Involving interested persons. Interested persons shall be

invited to participate as consulting parties as follows when they

so request:

(i) The head of a local government when the undertaking

may affect historic properties within the local government's

jurisdiction;

(ii) The representative of an Indian tribe in accordance with

§ 800.1(c)(2) (iii);

(iii) Applicants for or holders of grants, permits, or licenses,

and owners of affected lands; and

(iv) Other interested persons when jointly determined ap-

propriate by the Agency Official, the State Historic Preserva-

tion Officer, and the Council, if participating.

A-23

(2) Documentation. The Agency Official shall provide each

of the consulting parties with the documentation set forth in

§ 800.8(b) and such other documentation as may be developed

in the course of consultation.

(3) Informing the public. The Agency Official shall provide

an adequate opportunity for members of the public to receive

information and express their views. The Agency Official is en-

couraged to use existing agency public involvement procedures

to provide this opportunity. The Agency Official, State Historic

Preservation Officer, or the Council may meet with interested

members of the public or conduct a public information meeting

for this purpose.

(4) Agreement. If the Agency Official and the State Historic

Preservation Officer agree upon how the effects will be taken

into account, they shall execute a Memorandum of Agreement.

When the Council participates in the consultation, it shall ex-

ecute the Memorandum of Agreement along with the Agency

Official and the State Historic Preservation Officer. When the

Council has not participated in consultation, the Memorandum

of Agreement shall be submitted to the Council for comment

in accordance with § 800.6(a). As appropriate, the Agency Of-

ficial, the State Historic Preservation Officer, and the Council,

if participating, may agree to invite other consulting parties to

concur in the agreement.

(5) Amendments. The Agency Official, the State Historic

Preservation Officer, and the Council, if it was a signatory to

the original agreement, may subsequently agree to an amend-

ment to the Memorandum of Agreement. When the Council

is not a party to the Memorandum of Agreement, or the Agen-

cy Official and the State Historic Preservation Officer cannot

agree on changes to the Memorandum of Agreement, the pro-

posed changes shall be submitted to the Council for comment

in accordance with § 800.6.

(6) Ending consultation. The Council encourages Agency Of-

ficials and State Historic Preservation Officers to utilize the con-

sultation process to the fullest extent practicable. After initiating

A-24

consultation to seek ways to reduce or avoid effects on historic

properties, State Historic Preservation Officer, the Agency Of-

ficial, or the Council, at its discretion, may state that further

consultation will not be productive and thereby terminate the

consultation process. The Agency Official shall then request the

Council’s comments in accordance with § 800.6(b) and notify

all other consulting parties of its requests.

§ 800.6 Affording the Council an opportunity to comment.

(a) Review of a Memorandum of Agreement. (1) When an

Agency Official submits a Memorandum of Agreement accom-

panied by the documentation specified in § 800.8 (b) and (c),

the Council shall have 30 days from receipt to review it. Before

this review period ends, the Council shall:

(i) Accept the Memorandum of Agreement, which concludes

the section 106 process, and informs all consulting parties; or

(ii) Advise the Agency Official of changes to the Memoran-

dum of Agreement that would make it acceptable; subsequent

agreement by the Agency Official, the State Historic Preserva-

tion Officer, and the Council concludes the section 106 process;

(iii) Decide to comment on the undertaking, in which case

the Council shall provide its comments within 60 days of receiv-

ing the Agency Official’s submission, unless the Agency Official

agrees otherwise.

(2) If the Agency Official, the State Historic Preservation Of-

ficer, and the Council do not reach agreement in accordance

with § 800.6(a)(1)(ii), the Agency Official shall notify the Coun-

cil, which shall provide its comments within 30 days of receipt

of notice.

(b) Comment when there is no agreement. (1) When no

Memorandum of Agreement is submitted, the Agency Official

shall request Council comment and provide the documentation

specified in § 800.8(d). When requested by the Agency Official,

the Council shall provide its comments within 60 days of receipt

of the Agency Official’s request and the specified documentation.

A-25

(2) The Agency Official shall make a good faith effort to pro-

vide reasonably available additional information concerning the

undertaking and shall assist the Council in arranging an onsite

inspection and public meeting when requested by the Council.

(3) The Council shall provide its comments to the head of

the agency requesting comment. Copies shall be provided to the

State Historic Preservation Officer, interested persons, and others

as appropriate.

of Agreement becomes final in accordance with § 800.6(a)(1)

(i) or (ii), the Agency Official shall carry out the undertaking

in accordance with the terms of the agreement. This evidences

fulfillment of the agency’s section 106 responsibilities. Failure

to carry out the terms of a Memorandum of Agreement requires

the Agency Official to resubmit the undertaking to the Coun-

cil for comment in accordance with § 800.6.

(2) When the Council had commented pursuant to § 800.6(b),

the Agency Official shall consider the Council’s comments in

reaching a final decision on the proposed undertaking. The

Agency Official shall report the decision to the Council, and

if possible, should do so prior to initiating the undertaking.

(d) Foreclosure of the Ceuncil’s opportunity to comment. (1)

The Council may advise an Agency Official that it considers

the agency has not provided the Council a reasonable oppor-

tunity to comment. The decision to so advise the Agency Of-

ficial will be reached by a majoricy vote of the Council or by

a majority vote of a panel consisting of three or more Council

members with the concurrence of the Chairman.

(2) The Agency Official will be given notice and a reasonable

opportunity to respond prior to a proposed Council determina-

tion that the agency has foreclosed the Council’s opportunity

to comment.

(e) Public requests to the Council. (1) When requested by any

person, the Council shall consider an Agency Official’s finding

under §§ 800.4(b), 800.4(c), 800.4(d), or 800.5(b), and, within

A-26

30 days of receipt of the request, advise the Agency Official,

the State Historic Preservation Officer, and the person making

the request of its views of the Agency Official’s finding.

(2) In light of the Council views, the Agency Official should

reconsider the finding. However, an inquiry to the Council will

not suspend action on an undertaking.

(3) When the finding concerns the eligibility of a property

for the National Register, the Council shall refer the matter to

the Secretary.

[51 FR 31118, Sept. 2, 1986; 52 FR 25376, July 7, 1987]

A-27

Excerpt

Regulations of the Council on Environmental Quality

40 C.FR. § 1508.4

§ 1508.4 Categorical exclusion.

Categorical exclusion means a category of actions which do

not individually or cumulatively have a significant effect on the

human environment and which have been found to have no such

effect in procedures adopted by a Federal agency in implemen-

tation of these regulations (§ 1507.3) and for which, therefore,

neither an environmental assessment nor an environmental im-

pact statement is required. An agency may decide in its pro-

cedures or otherwise, to prepare environmental assessments for

the reasons stated in § 1508.9 even though it is not required to

do so. Any procedures under this section shall provide for ex-

traordinary circumstances in which a normally excluded action

may have a significant environmental effect.

A-28

Excerpts

Federal Aviation Administration Order 5050.4A,

q{ 23-24

23. CATEGORICAL EXCLUSIONS.

a. Unless specifically covered by paragraphs 21, 22, 24, or 26,

the items below are categorically excluded from the requirement

for formal environmental assessment. Paragraphs 21 and 22 iden-

tify specific airport actions such as major runway extensions

which require, as a minimum, an environmental assessment.

Paragraph 24 identifies extraordinary circumstances which

create a requirement for environmental assessment of actions

otherwise excluded. Paragraph 26 deals with cumulative impact.

For any of the following specific items, paragraphs 21, 22, 24,

and 26 shall be reviewed.

(1) Runway, taxiway, apron, or loading ramp construction

or repair work including extension, strengthening, reconstruc-

tion, resurfacing, marking, grooving, fillets and jet blast

facilities, and new heliports on existing airports, except where

such action will create environmental impacts off airport

property.

(2) Installation or upgrading of airfi *’ lighting systems,

including runway end identification lights, visual approach aids,

beacons and electrical distribution systems.

(3) Installation of miscellaneous items including segmented

circles, wind or landing direction indicators or measuring

devices, or fencing.

(4) Construction or expansion of passenger handling

facilities. ;

(5) Construction, relocation or repair of entrance and ser-

vice roadway.

(6) Grading or removal of obstructions on airport prop-

erty and erosion control actions with no off-airport impacts.

A-29

(7) Landscaping generally, and landscaping or construc-

tion of physical barriers to diminish impact of airport blast and

noise.

(8) Projects to carry out noise compatibility programs.

(9) Land acquisition and relocation associated with any

of the above items.

(10) Federal release of airport land {see paragraph 35).

(11) Removal of a displaced threshold.

(b) The following items are not subject to the paragraphs

listed in a. above and are categorically excluded:

(1) Acquisition of an existing privately owned airport, as

long as acquisition only involves change of ownership.

(2) Acquisition of: security equipment required by rule or

regulation for the safety or security of personnel and property

on the airport (14 CFR Part 107), safety equipment required

by rule or regulation for certification of an airport (14 CFR Part

139) or snow removal equipment.

(3) Issuance of airport planning grants.

(4) Airport Improvement Program actions which are ten-

tative and conditional and clearly taken as a preliminary ac-

tion to establish a sponsor’s eligibility under the Program.

(5) Retirement of the principal of bond or other in-

debtedness for terminal development.

(6) Issuance of airport policy and planning documents in-

cluding the National Plan of Integrated Airport Systems

(NPIAS), Airport Improvement Program (AIP) priority system,

advisory circulars on planning, design, and development pro-

grams which are not intended for direct implementation or

which are issued by FAA as administrative and technical

guidance to the public.

A-30

(7) Issuance of certificates and related actions under the

Airport Certification Program (14 CFR Part 139).

(8) Issuance of grants for preparation of noise exposure

maps and noise compatibility programs per sections 103(a) and

104(a) of the Aviation Safety and Noise Abatement Act of 1979

and 14 CFR Part 150 determinations on noise exposure maps

and approval of noise compatibility programs.

(9) Airspace determinations (see paragraph 25, Advisory

Actions).

24. EXTRAORDINARY CIRCUMSTANCES. Proposed Federal

actions which are normally categorically excluded but which

have any of the following characteristics shall be the subject of

an environmental assessment. The FAA will determine, in ac-

cordance with paragraph 51, whether the action will be the sub-

ject of an environmental impact statement or finding of no

significant impact.

a. An action that is likely to have an effect on properties pro-

tected under section 106 of the Historic Preservation Act of 1966,

as amended, or use section 4(f) lands (see paragraphs 47e(8) and

47e(7), respectively), or involve acquisition and conversion of

farmland scoring over 160 on Form AD-1006 and protected under

the FPPA to nonagricultural use through Federal financial

assistance or through conveyance of government land (paragraph

47e(16)).

b. An action that is likely to be highly controversial on en-

vironmental grounds. A proposed Federal action is considered

highly controversial when the action is opposed on environmen-

tal grounds by a Federal, state, or local government agency or

by a substantial number of the persons affected by such action.

If the responsible official has any doubt whether a given number

of opposing persons is “substantial,” that doubt shall be resolved

by discussion with APP-600 to determine if the action should

be processed as a highly controversial one.

c. An action that is likely to have a significant impact on

natural, ecological, cultural, or scenic resources of national,

A-31

state, or local significance (refer to appropriate subparagraphs

under 47e, Chapter 5).

d. An action that is likely to be highly controversial with

respect to the availability of adequate relocation housing. In

an action involving relocation of persons or businesses, a con-

troversy over the amount of the acquisition or relocation

payments is not considered to be a controversy with respect to

availability of adequate relocation housing.

e. An action that is likely to:

(1) Cause substantial division or disruption of an estab-

lished community, or disrupt orderly, planned development, or

is likely not to be reasonably consistent with plans or goals that

have been adopted by the community in which the project is

located; or

(2) Cause a significant increase in surface traffic

congestion.

f. An action that is likely to:

(1) Have a significant impact on noise levels of noise sen-

sitive areas;

(2) Have a significant impact on air quality or violate the

local, state, or Federal standards for air quality;

(3) Have a significant impact on water quality or con-

taminate a public water supply system; or

(4) Be inconsistent with any Federal, state, or local law or

administrative determination relating to the environment.

g. Other action that is likely to directly or indirectly affect

human beings by creating a significant impact on the

environment.

A-32

Excerpt

Final Environmental Impact Statement, December 1991,

pp. 1-38, 1-39

1.7 ENVIRONMENTAL EVALUATION PROCESS

This section provides a brief summary of the FAA environmen-

tal evaluation process and explains how the proposed D/FW Air-

port improvements are examined. A detailed discussion is pro-

vided in Appendix 3, in Volume II of this EIS.

1.7.1 FAA ENVIRONMENTAL PROCESS

All airport improvement projects which are considered to be

Federal actions or which receive Federal funding must be ex-

amined from an environmental standpoint in order to comply

with the National Environmental Policy Act of 1969 (NEPA),

the Airport and Airway Improvement Act of 1982 and other per-

tinent laws. Guidance in the FAA's consideration of environmen-

tal impacts is provided in Order 1050.1D, Policies and Procedures

for Considering Environmental Impacts; Order 5050.4A, Air-

port Environmental Handbook, as well as the Council on En-

vironmental Quality’s Regulations for Implementing the Pro-

cedural Provisions of the National Environmental Policy Act,

found at 40 CFR 1500-1508.

On any proposed airport action, the FAA performs an initial

environmental determination that considers the type of action

and its potential effect upon the environment. The result of the

determination is the selection of one of three environmental

processes:

* An Environmental Impact Statement (EIS) is

prepared for major Federal actions which are

generally known to have the potential for signifi-

cant environmental impacts. An EIS involves

thorough evaluation and documentation of a

proposed action’s purpose and need, alternatives,

affected environment and environmental

Ree ke) Oe

Ae33

consequences. The study requires coordination

with involved Federal, state and local agencies and

the public.

An Environmental Assessment (EA) is prepared for

proposed actions with expected minor or uncer-

tain environmental impact potential. An EA re-

quires similar analysis and documentation as an

EIS but with somewhat less detail and coordina-

tion. Depending upon whether or not certain en-

vironmental thresholds of significance are exceed-

ed, an EA will either lead to a Finding of No

Significant Impact (FONSI) or require the prep-

aration of an EIS.

A proposed action may be considered a Categorical

Exclusion (CE) by the FAA if it is the kind of ac-

tion that typically, according to FAA guidelines,

does not result in significant environmental im-

pacts and for which an EA or EIS is not required.

The CE may require a brief documentation of the

project’s description and environmental impact

potential in order to support its processing as a CE.

1.7.2 FAA’S ENVIRONMENTAL DETERMINATIONS

FOR D/FW AiRPORT IMPROVEMENTS

The FAA has reached the following environmental

determination:

* As indicated in Section 1.1, this Environmental Im-

pact Statement (EIS) is prepared for proposed new

Runway 16/34 East, or new Runway 16/34 West,

or both, and other improvements associated with

their operation.

Environmental Assessments have been or will be

prepared for a variety of measures not included

in the EIS related to air traffic control, naviga-

tional aids and airspace procedures but not

A-34

connected with these proposals. These include new

or relocated radar and navigational systems, two

new air traffic control towers, and a new Doppler

Weather Radar system. These assessments are fur-

ther described in Appendix 3, in Volume II of this

EIS.

Several proposed D/FW Airport actions are con-

sidered to be Categorical Exclusions. These include

the new east and west terminal complexes,

miscellaneous taxiway and apron improvements,

some specific land acquisitions, ground transpor-

tation improvements and AIRTRANS improve-

ments, and air traffic procedure actions above

3,000 feet AGL, as proposed in the D/FW

Metroplex Air Traffic System Plan. Although these

actions are considered to be categorically exclud-

ed (Appendix 3 of Volume II), the potential

cumulative impacts of these actions and the pro-

posed new runway development actions have been

considered in Section 4.4 of Volume I (En-

vironmental Consequences) of this document. In

addition, while normally categorically excluded,

the impacts of air traffic procedure actions above

3,000 feet AGL have been evaluated (see Appen-

dix 15 in Volume II).

The proposed extensions of existing Runways

18L/36R and 17R/35L and associated actions have

been examined for potential environmental impact

in a Technical Reevaluation of the 1974 Environmen-

tal Impact Statement. Both of these runways are

proposed to be extended 2,000 feet to the north,

resulting in total runway lengths of 13,388 feet.

These improvements, which had been recom-

mended when the airport was first developed, were

re-examined in 1990 using the process of tiering,

due to the time that had elapsed since their initial

approval. The written reevaluation was approved

by the FAA on June 13, 1990. The construction of

et eT

A-35

the extension of Runway 17R/35L is expected to

be initiated in late 1991. The construction of the

extension of Runway 18L/36R is planned to start

in 1993 after the Runway 17R/35L extension is

complete. This EIS evaluates the impacts from

those runway extensions as if they have been com-

pleted. For example, the noise contours that were

developed for all alternatives include the extend-

ed runways in the analysis and, therefore, reflect

the cumulative noise impacts in this statement.

* Other proposed Federal transportation actions in

the vicinity of D/FW Airport have been examined

by Federal agencies other than the FAA. These in-

clude the environmental impacts from the pro-

construction of roadway improvements to

SH 161 and SH 360, east and west of the airport,

respectively, which have been examined by the

Federal Highway Administration. They also in-

clude the development of a regional commuter rail

system with access to D/FW Airport, which is be-

ing assessed by the Urban Mass Transit

Administration.

The cumulative impacts of all applicable development actions

have been considered and are provided in Section 4.4 of this

volume.

A-36

Excerpts

Record of Decision, April 6, 1992, pp. 1, 42-43, 72-74

CHAPTER 1 DECISION

Based on a review of the administrative record, including the

Final Environmental Impact Statement (FEIS) approved on

December 30, 1991, it is the Federal Aviation Administration’s

(FAA) final determination that the revised Airport Layout Plan

(ALP), which incorporates two new air carrier length runways

specifically described in Chapters 3 and 5 of this Record of Deci-

sion (ROD), and identified in the FEIS as the “Preferred Alter-

native Combined (PAC),” is approved. These runways are

designated, for planning purposes, as 16/34 East and 16/34 West.

In addition, both runways are approved as eligible for federal

financial assistance. The East runway is also approved for con-

struction. It is further determined that these approvals for both

runways offer the environmentally preferable alternative for

development, in light of the technical and aeronautical needs

at Dallas/Fort Worth International Airport (D/FW Airport).

While these approvals of the Airport Layout Plan and eligibili-

ty for federal funding constitute final approval, the agency has

determined at this time that the approval of Runway 16/34 West

will prohibit the actual expenditure of any funds or the com-

mencement of runway construction until there is a written

reevaluation of the West runway pursuant to FAA Order

5050.4A. This evaluation will either conclude that the contents

of the FEIS and this ROD remain valid or that significant

changes require the preparation of a supplement or a new en-

vironmental document. As part of that reevaluation, the agen-

cy will take into account the conclusions and recommendations

arising out of the consultation process required by Section 106

of the National Historic Preservation Act, particularly including

the impact of the noise mitigation program on historic proper-

ties in the city of Grapevine. In addition, these approvals are

premised on the fact that construction of the West runway will

not commence until 1995, and that the runway will not be uti-

lized until 1997, unless reevaluated and approved for construc-

tion and use earlier. 7

A-37

The FAA notes that the project sponsor has agreed to the various

conditions of approval, in particular the conditions requiring

mitigation measures.

In reaching this determination, careful consideration has been

given to the needs of: (a) D/FW Airport as a part of the na-

tional air transportation system and the airport capacity/delay

reduction needs through the year 2010; (b) the aviation safety

and operational objectives of the project in the light of the

various aeronautical factors and judgments presented; and (c)

the anticipated environmental impacts of the project.

A discussion of the leading factors considered by the agency in

reaching this decision follows.

* ” * * hd

Historic Sites

In addition to the regulations of the Advisory Council on Historic

Preservation (ACHP) found at 36 CFR 800, the FAA also used

the ACHP booklet entitled Section 106, Step-by-Step, issued Oc-

tober 1986, in considering impacts on historic sites.

There is “no effect” on historic properties as a result of the proj-

ect for the East Runway (16/34 East), and in accordance with

FAA policies, no further analysis under Section 106 is required

and a DOT Section 4(f) statement is not required.

There is “no adverse effect” on historic properties as a result of

the West Runway (16/34 West) project and, consequently, a DOT

Section 4(f) Statement is not required, subject to the following

considerations:

e This runway project is approved for the revised Air-

port Layout Plan and is eligible for a federal-aid

grant agreement, but not for the commencement

of construction or actual expenditure of any federal

funds (which will be special conditions in any grant

agreement issued), until the Section 106 process has

A-38

been completed with respect to two issues: the iden-

tification of future possible eligible historic sites in

Grapevine as defined in the FEIS; and an assess-

ment of whether the noise mitigation program has

any further impact on these properties. In fact,

commencement of construction cannot proceed

prior to the completion of the Section 106 process,

even if the project should be funded without federal

funds.

Approval of the revised ALP and a finding of

eligibility with no expenditure of funds is consis-

tent with the Advisory Council on Historic Preser-

vation (ACHP) principle of “phased compliance”

[see 36 CFR 800.3(c)].

The requirement to continue with the Section 106

consultative process stems from a need to complete

the determination of eligible properties within the

area of potential effect in Grapevine on the West

side and to assess any possible impact from the

mitigation program on them.

Detailed studies conducted to date show no adverse

impacts from the project on those properties studied

(identified on Figures 4.4 and 4.5 in Appendix 22

of the FEIS), which include eligible and potentially

eligible properties, because these properties are all

included within the noise mitigation program.

However, there is a possibility that the agency’s noise

mitigation program may have some effect in that

if homeowners, who participate in either the EAP

or SGP, do not follow the Secretary of Interior’s

Standards for Rehabilitation and Guidelines for

Rehabilitating Historic Buildings when making

structural changes, such as soundproofing, the

historic qualities may be affected. The potential im-

pact from this program on the West runway con-

tinues to be studied. The results of this study will

be incorporated into a Record of Decision to be

RAPT IIE RS

Se ARH ERSN T I TE G I ENTRAR SS SNM

A-39

prepared after the technical reevaluation of the

West Runway.

¢ In any event, the increase in noise levels will not

affect the relevant characteristics of these proper-

ties from the standpoints of either architectural

significance or place in history.

Further details with respect to the impacts by each runway

follow.

* * * * x

DOT Section 4(f); Historic and Architectural;

and Archeological and Cultural Resources

* * * * *

West Side

The project for the Runway 16/34 West will not require the ac-

tual use or acquisition, incorporation or control of any Section

4(f) park and recreation lands. Further, the approved project

will not result in adverse indirect impacts to any Section 4(f)

park and recreational lands that would constitute a “construc-

tive use.” Although the new runway will result in increases in

aircraft noise levels over some of these lands when compared

to the No-Action Alternative, the noise levels will not be substan-

tial and will be below FAA accepted thresholds of compatibili-

ty for such lands.

For several reasons, the FAA has decided to give final, uncon-

ditional approval for Runway 16/34 West at this time, subject

to the technical reevaluation that must occur before it can be

built. First, all known environmental impacts have been

thoroughly studied in this EIS process; the only unknown im-

pacts are only potential ones to possibly eligible historic prop-

erties and may be solely attributable to the airport's noise mitiga-

tion program, not to the project. Second, there is substantial

public benefit in having the FAA make a final decision now

A-40

on the location of the West runway. This decision removes any

uncertainty regarding the configuration of this runway on the

ALP. As a result, communities on the West side of the airport

will be able to make intelligent, informed decisions regarding

land use and other matters, well in advance of actual construc-

tion. Third, before any construction can begin, there will be

a technical reevaluation, which will include a reexamination

of the items discussed in this ROD, to determine whether any

changes have taken place, as well as a discussion of the conclu-

sion of the Section 106 process. Thus, there are substantial

benefits to making this decision now.

« *« « * *

Conditions of Approval

e The mitigation measures that will be implemented

are those listed in the FEIS (Section S.7 of the Sum-

mary, and Section 4.5). The FAA will monitor the :

implementation of these mitigation actions as A

necessary to assure that they are carried out as proj-

ect commitments. These measures, which constitute

all the practicable means to avoid or minimize en- ;

vironmental harm from the project, are hereby :

adopted.

e Project contractors will apply for and obtain the

appropriate Texas Air Control Board permits prior

to construction. FAA grant agreements with the air-

port sponsor will ensure that these standard per-

mits will be obtained prior to the commencement

of construction.

e Provisions of the Section 404 Nationwide Permit 26

will be followed to ensure compliance. Of particular

importance is General condition 10, of the

“Notification,” which is applicable in this case. Con-

dition 10 and all other conditions of approval of the

Nationwide Permit 26 are made conditions of ap-

proval of this ROD by the FAA.

A-41

¢ Development of an erosion control plan during the

design phase will be required by FAA (FAA Advisory

Circular 150/5370-10A) prior to commencement of

construction.

e Further consultation, required under Section 106

of the National Historic Preservation Act, relative

to historic properties in the city of Grapevine, will

continue as described above in Chapter 7. The ac-

tual expenditure of federal funds and approval to

proceed with construction for Runway 16/34 West

will be prohibited until this process is completed

and the results of the consultation reviewed as part

of the reevaluation of the West runway.

e FAA ATC operational measures for mitigating noise

impacts have been selected for each new runway

program, as listed in the FEIS at Section 4.5.1.1,

and are adopted.

A-42

Letter, Nissley to Sturns, September 28, 1993

Advisory

Council On

Historic

Preservation

September 28, 1993

Mr. Vernell Sturns

Executive Director

Dallas/Ft. Worth International Airport

East Airfield Drive

P.O. Drawer DFW, TX 78061

Dear Mr. Sturns:

This letter responds to your letter of July 2, 1993 which con-

veyed concerns regarding our decision to object to your deter-

mination of no adverse effect for the Dallas/Ft. Worth Interna-

tional Airport Expansion.

You have raised several areas of concern about the Council’s ac-

tion, including the lack of consultation with FAA, consistency

with prior actions on airport noise and the applicability of FAA

general noise impact standards. I will address each as it relates

to this case.

Consultation with FAA

At the outset, it is important to note the procedural framework

in which the Council’s action has taken place. This has signifi-

cant bearing on the interaction with FAA, the role of concerned

citizens and comparisons with previous Council cases alluded

to in your letter. The regulations implementing Section 106 (36

C.F.R. Part 800) require that the Federal agency, after identi-

fying historic properties that may be affected by its undertak-

ing, apply the “Criteria of Effect” to historic properties within

the undertaking’s area of potential effect, in consultation with

the State Historic Preservation Officer (SHPO) and giving

reach

A-43

consideration to the views, if any, of interested persons (36 CFR

§ 800.5(a)). In consultation with the SHPO, the Federal agen-

cy must then apply the “Criteria of Adverse Effect” to those prop-

erties found to be affected. (36 C.F.R. § 800.5(c).

If the Federal agency determines the effect is not adverse, the

agency official submits the finding to the Council, along with

documentation of the views of the SHPO. The Council then has

the option to accept the determination or object to it (36 C.F.R.

§ 800.5(d)). If the Council objects, then the effect shall be con-

sidered adverse (36 C.F.R. § 800.5(d)(2).

This was how the FAA finding of No Adverse Effect came to

the Council. It should be noted that this was one of approx-

imately 500 such cases per year processed by the Council’s

Western Office of Review. It should also be noted that the regula-

tions neither require Council consultation with the Federal agen-

cy on a determination of no adverse effect nor is it the practice

of the Council to consult on such threshold determinations. The

evaluation of adverse effect is an initial step in the Section 106

process, designed to separate those cases where effects to historic

properties are not adverse and therefore need no further review

from those with the potential to harm historic properties and

accordingly require the investigation of mitigation measures.

In the present case, the Council reviewed the record before it,

including the unsolicited views of preservation advocates, ap-

plied the criteria set forth in the regulations and determined

that the FAA finding was erroneous. The single consequence of

this action is procedural, requiring that the Federal agency, the

SHPO and the Council consult to determine whether there are

suitable measures that FAA can take to avoid or mitigate the

adverse effects. It does not require they be avoided or that the

project be altered; it only requires that the effects be considered

during FAA’s planning of the project.

There is another aspect of the current case that you should

understand. While the Council had no obligation to consult with

FAA during the development of the No Adverse Effect deter-

mination, we did seek to contact FAA about the project at an

A-44

early stage. We wrote to FAA on May LI, 1992 inquiring about

the proposal as a result of an inquiry to us by an interested par-

ty (Attachment 1). FAA responded on July 29, 1992, stating we

had a “basic misunderstanding” of the project and they would

consult with the SHPO. We heard no more from FAA until May

10, 1993, when we received its determination of no adverse

effect.

Thus, while FAA was clearly aware of the'Council’s interest in

the project, at no time during this past year did FAA or the air-

port authority attempt to contact the Council or share any in-

formation regarding the evaluation of potential effects of the

project. During this time, the only information we received came

from the SHPO and the City of Grapevine.

You have raised concerns regarding the submission to the Council

of views and opinions by various opponents of the project. It

is important to note that the Council’s regulations emphasize

public participation and allow for interested parties to offer their

views (36 CFR § 800.1(c)). Your statement, “We do not under-

stand how the Council can admit the project’s opponents to its

process while excluding the other side,” is misleading. The Coun-

cil’s process is always open to the views for the public, regardless

of which side they take. At the same time, because of this public

concern, we invited FAA to share information on the project

a year before it made its no adverse effect determination. FAA

chose not to.

The basis for the council’s objection

At this point, an examination of the Council’s Criteria of Ef-

fect and Adverse Effect (36 C.F.R. § 800.9) is necessary. The

Criteria of Effect state, “An undertaking has an effect on a

historic property when the undertaking may alter characteristics

of the property that may qualify the property for inclusion in

the National Register. For the purpose of determining effect,

alteration to features of the property’s location, setting or use

may be relevant depending a property's significant characteristics

and should be considered.” The majority of historic properties

in the Area of Potential Effect (APE) of DFW were determined

A-45

eligible under Criteria A and C of the Secretary of the Interior’s

Criteria for the National Register of Historic Places. Criteria

A identifies properties that are significant for their “...associa-

tions with events that have made a significant contribution to

the broad patterns of our history”; Criteria C defines proper-

ties that “embody the distinctive characteristics of a type, period,

or method of construction, or that represent the work of a master,

or that possess high artistic values, or that represent a signifi-

cant and distinguishable entity whose components may lack in-

dividual distinction.”

The July 21, 1991, letter from the SHPO to FAA states that “38

properties are eligible under Criteria C for their significance

as representative types of architecture typical of a small urban

setting.” It is important that a significant aspect of the historic

properties under consideration is their small urban setting under

Criteria C. Runway 16-34 clearly has an effect on the setting

of these historic properties, as the intrusion of aircraft noise and

overflights may (not necessarily “will”) alter the significant

characteristics of these properties.

The regulations continue, “An undertaking is considered to have

an adverse effect when the effect on a historic property may

diminish the integrity of the property’s location, design, setting,

materials, workmanship, feeling or association.” They state that

adverse effects “include, but are not limited to: (1) Physical

Destruction, damage, or alteration of all or part of the proper-

ty; (2) Isolation of the property from or alteration of the

character of the property’s setting when that character con-

tributes to the property’s qualification for the National Register;

(3) Introduction of visual, audible, or atmospheric elements that

are out of character with the property or alter its setting (36

C.F.R. § 800.9(b)(1)-(3)). The most pertinent adverse effect in

DFW is the last. There is no question that an introduction of

49,000 overflights per year above historic properties that did not

previously have overflights and are significant in part to their

“small urban setting” constitutes an adverse effect in accordance

with the regulations. The introduction of the overflights create

visual, audible and atmospheric elements that are out of

character with the historic properties; they may well “diminish

A-46

the integrity of the property's location,...setting,...feeling or

association.”

Relation of FAA noise standards to the adverse effect finding

It is imperative to note that the criteria that the Council ap-

plies in reviewing no adverse effect determinations are those set

forth in the Section 106 regulations. Other standards or criteria

are useful to assist the Council, but in the end the Council must

conform to 36 C.F.R. Part 800. Accordingly, the Council uses

both average noise data (Ldn) and single event noise level data

(SEL) to aid its assessment of noise impacts on historic proper-

ties. We have always been concerned that information on average

noise levels, considered alone, would be inadequate to fully assess

whether the‘ effects to historic properties will be adverse.

However, they are useful in giving the Council the overall pic-

ture of the nature of an action’s effects on historic properties.

In the DFW airport case, we considered the noise data in this

way. Both Ldn and SEL information in our review supported

a finding of adverse effect in accordance with our regulations,

although as noted they were not the exclusive basis for the

determination.

Factors that supported the finding that the project might alter

significant characteristics of the historic properties in a way that

could diminish their integrity included:

e Inthe year 2010, Ldn levels in the residential historic district

will be more than twice as high with the west runway as com-

pared to levels without the runway (FEIS:Table A5-4). A 10

decibel increase represents a doubling of perceived noise levels.

For example, the anticipated impact on two identified historic

properties is:

- Wiggins Home: 10.3 Ldn increase

- Steward Home: 12.5 Ldn increase

° In the year 2010, SEL levels in the residential historic district

will be more than four times as high with the west runway as

A-47

compared to levels without the runway (FEIS: Table A5-4). A

20 decibel increase represents a quadrupling in perceived noise

levels. Again, for two properties:

- Wiggins Home: 20.6 SEL increase

- Steward Home: 23.3 SEL increase

SEL levels within the APE will be approximately 110 decibels

in 1997 (FEIS: Table A5-3). This noise is comparable to a rock

band, the sound level inside an NY City subway, a diesel truck

at 50 feet or the noise experienced by a chain saw operator.

None of these noise levels are in keeping with the historic prop-

erties and their setting, feeling or association (36 CFR §

800.9(b)). The introduction of these SEL and Ldn noise levels

by the undertaking support the Council’s finding of adverse ef-

fect, as they are clearly out of character with the properties and

may alter the properties setting in accordance with § 800.9(b)(3).

Comparison with previous Section 106 cases

Finally, comparisons to other Council actions in evaluating noise

impacts for airport expansions have been made. For example,

the Louisville, Kentucky, airport expansion has been compared

by some to the DFW situation. There are several distinctions

between the expansion of the Louisville airport and the expan-

sion at Dallas-Ft. Worth.

l. Procedural Status.

In Louisville, the Council received a request to reconsider a com-

pleted and closed Section 106 case regarding the Old Louisville

Historic District. The Council was requested to reevaluate an

existing Memorandum of Agreement (MOA) documenting an

agreed upon solution by all parties that signed the MOA. In such

a circumstance, the Council may utilize broad discretion to

determine whether or not to change its position. In the Louisville

airport case, the Council decided not to reopen the closed case.

In the DFW airport situation, the Council received a determina-

tion of no adverse effect. In accordance with our regu! ations,

A-48

we have 30 days to review the documentation and object, pro-

pose changes or agree with the Agency’s finding. Our review

must be governed by the Criteria of Effect and Adverse Effect

(36 CFR § 800.9) Our decision to object was made according

to those procedures.

In Louisville airport, the FAA completed its Section 106 re-

quirements in the procedurally prescribed manner. The MOA

was signed in November 1990. The Council commented formally

by signing the MOA. The Record of Decision (ROD) was issued

January 7, 1991. In contrast, the ROD for DFW was issued April

6, 1992. The Council wrote an inquiry to FAA in May 1992 re-

questing information on what was being proposed. The Section

106 process still has not been completed to date. In this case,

it may be that the opportunity for the Council to make mean-

ingful comments becomes moot because the final decision for

placement of the runway has been made. It appears that there

are no alternatives or options other than the final selected

alternative.

2. Area of Potential Effects (APE). In Louisville, there were

no historic properties within the APE which was defined by a

single 65 Ldn contour line. In contrast, the APE at DFW is de-

fined much more broadly and includes a noise mitigation buf-

fer, “in view of the variability of the 65 Ldn contour over

Grapevine” (FEIS: 3-149). The buffer zone was established to

account for deviation between the forecast and the actual ac-

tivity when the runway is operational. The noise mitigation buf-

fer at DFW has four individually eligible historic properties and

one eligible district for listing on the National Register of Historic

Places (FAA's Assessment of Effects, Nov. 1992:7). The district

A-49

mitigation program is to permit, “...homeowners to be compen-

sated for adverse effects caused by the project.”

3. Urban vs Exurban Context. The environmental context of

the historic resources located in Louisville and DFW are con-

siderably different and accordingly merit different evaluations.

Louisville involved the old Louisville Historic District, a large

urban residential district with a small urban park in the center.

The historic properties and district located in the City of

Grapevine represent a small “exurban” Main Street town with

a population just over 29,000. As such, the small town atmosphere

exudes a sense of quietness and portions of Grapevine today re-

tain a “feeling of a semi-rural area” (Tarrant County Historic

Resources Survey 1990:6). Grapevine remained an agricultural

trade center with an approximate population of 2,000 up to the

mid-1900s. The identified historic properties and district are

residential and date from the late 1800s to the early 1900s. With

the proposal of the west runway, overflights not previously ex-

perienced in Grapevine will become a part of life. Noise levels

not typically compatible with this setting will be introduced.

FAA estimates 49,000 overflights during the first year of opera-

tion with the potential to develop into twice the predicted

volume (FEIS 1992:3-149). Had the same intrusions been pro-

jected in an urban setting such as the Old Louisville Historic

District, they may not have risen to the level uf adverse effect.

For these reasons, the Council stands by its position conveyed in

our June 8, 1993 letter. We continue believe that FAA's undertak-

ing of the construction of Runway 16-34 West at the Dallas-Ft.

Worth airport may adversely effect historic properties. According-

ly, the next step in the process is to consult. Mr. Sturns’ letter of

July 2, 1993 refers to “several drafts of a Memorandum of Agree-

ment (MOA)” between DFW and the SHPO (Texas Historic Com-

mission). The Council's regulations, 36 CFR Part 800, clearly in-

dicate a MOA is required when a determination of adverse ef-

fect is made. If there is a draft MOA, we request to review it.

/s/

Claudia Nissley

Director, Western Office of Review

A-50

Letter, Layton to DeHart, January 14, 1991

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

Mr. Clyde M. DeHart, Jr.

Regional Administrator

Federal Aviation Administration

Southwest Region

Fort Worth, Texas 76193-0001

Dear Mr. DeHart:

In accordance with our responsibilities under Section 309 of the

Clean Air Act, the National Environmental Policy Act (NEPA),

and the Council on Environmental Quality (CEQ) Regulations

for Implementing NEPA, the Environmental Protection Agen-

cy (EPA) has completed our review of the Draft Environmen-

tal Impact Statement (EIS) prepared by the Federal Aviation

North-South runways and related expansion at the Dallas/Fort

Worth (D/FW) International Airport, Texas.

In addition to the no-action alternatives, the Draft EIS con-

sidered three alternatives to the 16/34 East runway, and eleven

alternatives to the 16/34 West runway. The preferred alternatives

were identified as: (1) runway 16/34 East which would be 8,500

feet long, would be located 5,000 feet east of existing runway

17L/35R and would be operational in 1992; and (2) runway 16/34

West which would be 9,760 feet long, would be located 5,800

feet west of existing runway 18R/36L and would be operational

in 1997, or when needed by aviation demand.

A-51

concerns to them by letter. We repeated our concerns in an Oc-

tober 26 letter after attending a public meeting on October 23.

Our letters to the FAA during this time contained the same con-

cerns we have now. Throughout this time period we continued

to make our concerns known.

The following comments identifying these concerns are offered

for your consideration:

Limiting the Scope of the EIS:

The FAA limited the scope of the EIS by excluding many ac-

tions that are associated with the proposed D/FW Airport ex-

pansion. The FAA indicates that these actions do not warrant

detailed environmental assessment in the EIS because they have

been: (1) evaluated earlier in an environmental document, (2)

are categorically exclud 4d, or (3) will be evaluated later. By fail-

ing to include all of these actions and their associated impacts

in a single EIS, a comprehensive environmental assessment of

the entire airport expansion has not been provided and disclosed

to the public. The scope of an EIS is defined at 40 CFR 1508.25

of the CEQ regulations as the range of actions, alternatives and

impacts to be considered in an EIS. It further states that to deter-

mine scope, agencies shall consider connected actions,

cumulative actions and similar actions. For example, the exten-

sion of the existing runways was not included in the EIS because

FAA had evaluated this action a few months earlier in a separate

technical reevaluation (EA) report. By excluding this related ac-

tion from the EIS, it appears the FAA is segmenting the en-

vironmental analysis of the entire airport expansion. Specific

concerns on the technical reevaluation report, categorical ex-

clusions and Environmental Assessments (EA’s) are as follows:

Technical Reevaluation:

Page 1-34 of Volume 1 of the EIS, and pages 18, 25

and 26 of Volume II indicate that the construction of

proposed extensions of the two existing middle run-

ways 18L/36R and 17R/35L and associated actions are

assumed to be complete. Rather than include the

A-52

construction in the EIS, the FAA evaluated the ade-

quacy of the 1974 EIS in describing the environmen-

tal effects of this proposed action in a technical

reevaluation. This excludes the construction impacts

from consideration in the EIS. This is done even

though the extensions, as well as the new East run-

way 16/34 proposed in the EIS, will both be con-

structed in 1992, on the same airport. We have deter-

mined that these two runway construction actions are

connected, and will have similar impacts since they

will be built at the same time, and on the same air-

port. Extending the two middle runways (construc-

ting 4,000 feet of new runway) involves potentially

significant environmental impacts, and the impacts

of these extensions, when viewed with the proposed

action in the EIS, would have cumulatively signifi-

cant impacts and therefore should have been includ-

ed in the same EIS. By excluding these impacts from

the EIS, the FAA did not comply with 40 CFR

1508.25(a)(2) which states that, “cumulative actions,

when viewed with other proposed actions have

cumulatively significant impacts and should therefore

be discussed in the same impact statement.” By ex-

cluding a discussion of these impacts from the EIS,

the assessment is insufficient. Also by excluding these

impacts, the FAA segmented the EIS and severely

limited its scope. Additionally, our October 26, 1989,

scoping letter to Mr. Gene L. Faulkner, Manager, Air-

ports Planning Branch, FAA, Southwest Region, Fort

Worth requested that both of these actions be con-

sidered in one EIS. We consider this exclusion as

nonresponsive to our scoping comments.

Categorical Exclusions:

Many proposed D/FW Airport actions were considered

to be categorical exclusions as stated in the EIS in

Volume II, 3 and Volume I, page 1-34.

Categorical should be used for actions that

individually or cumulatively do not have a significant

A-53

effect on the human environment. However, the con-

struction of this very large $1,000,000,000 redesigned

new terminal complex on the west side of the D/FW

Airport and associated new expanded auto parking

facilities does not fit that category, and we have

specifically and repeatedly asked that the environmen-

tal impacts for this construction activity be assessed

and included in the current Draft EIS. Our scoping

letters dated May 22 and October 26, 1990 requested

environmental analysis of the terminal complex. This

use of the categorical exclusion segments the EIS and

limits its scope. The construction of the terminal com-

plex is closely related to the construction of the two

new runways and we consider them to be a single

course of action. Therefore, this segmentation does not

comply with Section 1502.4 of the CEQ regulations

which states that, “parts of proposals which are related

to each other closely enough to be, in effect, a single

course of action, shall be evaluated in a single EIS.”

By excluding a discussion of these impacts from the

EIS, the assessment of these impacts is insufficient.

We note that the EIS on pages 27, 28, and 29 of

Volume II attempts to explain how these impacts were

addressed 16 years ago in the 1974 EIS. However, it

fails to explain how the environmental regulations,

standards and determinations have changed in these

past 16 years, and how the redesign of the terminal

would alter impacts.

Page ii explains how the EIS was developed from the

DFW Airport Development Plan. It has been brought

to our attention that numerous other actions are listed

in this Plan but the actions and impacts of these ac-

tions were excluded from the EIS. These actions in-

clude: Ultimate lengthening of the parallel runways

by an additional 1,640 feet to the south to accom-

modate supersonic aircraft, completing Taxiway C

parallel to Runway 18R/36L as well as other taxiway

and apron area construction, two passenger processing

A-54

terminals beyond the crossover taxiways (each with

a processing capacity of 62.8 million passengers/year),

underground automated transit system to connect ter-

minals with concourses, an air cargo handling facili-

ty (frequent nighttime flights could markedly increase

noise impacts), demolition of existing Terminals 2E,

3F. and 2W, demolition of Hyatt Hotel and accom-

panying support facilities, proposed State Highway

360 extension and State Highway 161 over Airport

property among others.

Environmental Assessments:

Page 1-34 of Volume I indicates that many actions

were not included in the EIS because EA’s on the ac-

tions were not yet completed. Many of these actions

are closely related to the Airport expansion, and as

such, their environmental impacts should have been

included in the EIS. This use of EA’s segments the EIS

and limits its scope. Specifically, the installation of the

new radar system as well as the construction of the

two new air traffic control towers on the east and west

sides of the D/FW Airport are closely related to the

construction of the two new East and West runways

and are a single course of action. Therefore, as we in-

dicated, this segmentation does not comply with Sec-

tion 1502.4 of the CEQ regulations which states that,

“parts of proposals which are related to each other

closely enough to be, in effect, a single course of ac-

tion shall be evaluated in a single EIS.” By excluding

a discussion of these impacts from the EIS, the assess-

ment of these impacts is insufficient. In our July 6 and

October 26, 1989, scoping letters, we y asked

that the EIS address radiation impacts from the new

large air traffic radar systems. Since these impacts

were not included in the EIS, this omission is

nonresponsive to our scoping comments.

Alternatives:

The FAA should discuss in more detail alternatives outside of

adding new runways on the DFW Airport. We suggest the EIS

A-55

discuss using Love Field and other local metroplex airports to

absorb some of the expected future traffic especially since there

apparently is excess capacity at Love and the possibility of lift-

ing the Wright Amendment is seriously being studied. Another

alternative in need of additional discussion is scheduling more

flights during off-peak flying periods.

Wetland Impacts:

The Draft EIS provided an analysis of potential wetland im-

pacts associated with the construction of the preferred alter-

natives for both proposed runways. According to page 4-113 of

the Draft EIS, runway 16/34 East (Alternative 7) would affect

11.8 acres of wetlands and runway 16/34 West (Alternative 2)

would affect 13 acres of wetlands.

The Draft EIS indicates that the Fort Worth District Corps of

Engineers was contacted to determine permit requirements and

specific mitigation needs. It further indicates that applicable

measures for wetland impacts will be determined during the

permitting process and specific mitigation measures will be

developed in cooperation with permitting and permit review

agencies.

If a permit is required, EPA will review the proposed project

for compliance with the Federal guidelines (40 CFR 230)

[hereafter referred to as the Guidelines] promulgated pursuant

to Section 404(b)(1) of the Clean Water Act (CWA).

To comply with the Guidelines, the proposed project must meet

all of the following criteria:

There is no practicable alternative to the proposed

discharge which would have less adverse impact on

the aquatic ecosystem [40 CFR 230.10(a)].

The proposed project will not cause or contribute to

of waters of the United States,

significant

including wetlands [40 CFR 230.10(c)]. Significant

includes loss of fish and wildlife habitat,

including cumulative losses.

A-56

The proposed project does not violate water quality

standards, toxic effluent standards, or jeopardize the

continued existence of Federally listed species or their

critical habitat [40 CFR 230.10(b)].

All appropriate and practicable steps are taken to

minimize adverse impacts on the aquatic ecosystem

(i.e., mitigation) [40 CFR 230.10(d)]. This includes in-

corporation of all appropriate and practicable com-

pensation measures for unavoidable losses to waters

of the United States, including wetlands.

EPA supports the national goal of“no net loss of” wetlands. We

recommend the preservation and enhancement of existing

wetland resources. The FAA should consider alternatives which

will preserve these resources in perpetuity. If wetlands would

be filled, then the FAA should explain why there are no prac-

ticable alternatives to locating the project within wetlands and

show how the project has been designed to minimize harm to

existing wetlands. Mitigation must be provided for all

unavoidable wetland losses.

If the U.S. Corps of Engineers determines that no acceptable

alternative site exists for the proposed activity, on-site mitiga-

tion should be used to the fullest extent practicable to lessen

the degree of impact to a wetland or other aquatic ecosystem.

As ecological balances are complex and difficult to duplicate

with certainty, techniques should attempt to protect existing

resources. Practicable on-site mitigation techniques are required

to ensure compliance with the 404(b)(1) Guidelines, and are to

be supplemented with other mitigation techniques as ap-

propriate. In situations where on-site mitigation is not sufficient

to adequately offset unavoidable adverse impacts, compensa-

tion techniques may be considerec. Compensation actions, such

as creating artificial wetlands are acceptable for unavoidable

impacts only. Due to the scientificuncertainty of such compen-

satory techniques, they should be undertaken, when practicable,

in those areas adjacent or contiguous to the discharge site to

assure the greatest degree of sucress.

A-57

If fill activities are contemplated, then we recommend that a

conceptual mitigation plan be prepared for review and com-

ment by the appropriate resource agencies prior to publication

of the Final EIS, and the approved plan incorporated as part

of the Final EIS.

Noise Impacts:

This Draft EIS is one of the seven EIS’s identified in a June 15,

1990, letter from FAA Deputy Administrator Harris to EPA

Deputy Administrator Habicht concerning an EPA/FAA agree-

ment regarding noise analysis contained in EIS’s from FAA. In

that letter, FAA agreed that EIS’s on those seven airport proj-

ects would include a single event analysis and additional descrip-

tive information to help.inform the decision maker and the

public on likely noise impacts. It was our intention that the sup-

plemental single event analysis and associated descriptive in-

formation would help clarify the conventional noise impact

presentations that are based on noise contours and land use com-

patibility tables.

Prior to publishing the Draft EIS, the FAA requested that EPA

accept a Time Above (TA) Grid Analysis in place of the Single

Event Analysis specified in the EPA/FAA agreement. We advised

the FAA staff that, since the analysis had already been done,

we would be willing to accept this presentation provided that

the analysis would also include descriptive information which

relates TA levels to impacts such as interruption of communica-

tion, rest, relaxation, and sleep. On the basis of our review of

the EIS, the requested descriptive information has not been

provided.

In an attempt to provide a better understanding of Time Above,

we computed the TA 85 dB at a specific site (x=9000, y=15000)

and determined the number of events exceeding a Sound Ex-

posure Level (SEL) value of 90 dB at this same site. The com-

puted TA 85 dB a’ this point is 0.7 minute. However, the SEL

analysis shows 18 daytime events occurring that exceed SEL 90

dB. If a table of “common” sounds accompanied the text, a

reader might obtain a “physical” feel for the effect of exposure

A-58

to x minutes at a specified sound level. However, this would still

not indicate the annoyance nor activity interference associated

with multiple events at that level.

In view of the apparent difficulty in describing the TA metric

in these terms, we recommend that the noise analysis in the EIS

be supplemented with a single event analysis as called for in

the EPA/FAA agreement. A review of the EIS shows that the

following information is needed to satisfy the agreement:

The noise discussion regarding the use of the Day-

Night Average Sound Level (abbreviated as DNL, and

symbolized as Ldn) and the impacts associated within

various Ldn contours needs further explanation. The

sole use of the Part 150 Land Use Compatibility Table

to assess noise impacts (using the DNL metric) does

not provide the public with the necessary informa-

tion on the extent of probable noise impacts. The fact

that one is located in a compatible area does not pro-

vide any detail or “feel” for the noise impacts likely

to be experienced. Inclusion of the Federal Interagency

Table D-1, showing the percentage of people likely to

be annoyed at various Ldn levels, and data on the

typical range of single event sound levels within each

contour band, are the kinds of information that would

be helpful in both understanding and assessing noise

impacts.

There appear to be numerous parks/recreational areas

that are located in the project vicinity. The discus-

sion of noise impacts related to these areas should in-

clude general information on the types of activities

(sport games, hiking, picnicking, concerts, etc.) that

generally take place there. The FAA interpretation,

in the Land Use Compatibility Table, that all uses

within a “park” are compatible if the exposure is Ldn

75 or less, does not allow for individual park use dif-

ferences, such as, for example, overnight camping.

Even if it is determined that the park, in general, is

compatible, the noise impact discussion should include

A-59

information on how individual activities such as

camping or concerts may be impacted.

The Draft EIS provides little descriptive information

on noise impacts. The FAA/EPA agreement indicated

that a chart would be provided showing common

sounds that relate to noise descriptors used in the docu-

ment. Such a chart was not provided. A discussion of

Ldn and single event sound descriptors should also be

included along with a description of how they relate

to each other. Finally, the Final EIS should provide

additional information on potential effects of noise

exposure and sleep disturbance. For example, while

the day operations are high compared to night opera-

tions (1,802 vs. 233, in 1992) the 233 night operations

translate into a nine hour average of 22 operations per

hour. The document should discuss, in general terms,

the potential number of people that may be awak-

ened due to these operations.

We classify your Draft EIS as EO-2 (Environmental Objections-

Insufficient Information). Specifically, EPA expresses environ-

mental objections to the preferred alternative based upon a lack

of sufficient environmental analysis in the areas mentioned

above. The Draft EIS limits the scope of the proposed action

by excluding related actions and environmental impacts through

the use of categorical exclusions and EA's to the extent that it

does not fully assess potentially significant environmental im-

pacts of the entire Airport expansion.

This identified additional information, data and analyses should

be fully incorporated in the Final EIS and made available for

public and agency review and comment prior to issuing a Record

of Decision on the Airport expansion. Failure of the FAA to ful-

ly incorporate this information and environmental analysis in

the Final EIS would be considered by the EPA as nonrespon-

sive and not fulfilling the intended purposes of NEPA.

A summary of our comments will be published in the Federal

A-60

our views on the proposed Federal actions under Section 309

of the Clean Air Act.

We appreciate the opportunity to review the Draft EIS. Because

of the seriousness of our concerns, we would like to meet with

you to discuss these comments. Either Norm Thomas at (FTS)

255-2260 or Russell Rhoades at (FTS) 255-2213 may be contacted

for further coordination. Please send our office five copies of

the Final EIS at the same time it is sent to the Office of Federal

Activities, U.S. Environmental Protection Agency, 401 M Street,

S.W., Washington, D.C. 20460.

Sincerely yours,

/s/

for Robert E. Layton Jr., P.E.

Regional Administrator

A-61

Letter, Nissley to Lyon, June 8, 1993

Advisory

Council On

Historic

Preservation

June 8, 1993

Hugh W. Lyon

Assistant Division Manager

Airports Division

Federal Aviation Administration

Southwest Region

Fort Worth, TX 76193-0000

Dear Mr. Lyon:

We have reviewed the documentation supporting the Federal

Aviation Administration’s (FAA) determination that the construc-

tion and use of Runway 16-34 West at the Dallas/Fort Worth

International Airport (D/FW Airport) will not adversely effect

historic properties. This determination is based on the FAA’s and

the Dallas/Fort Worth International Airport Board’s (Board)

agreement with the Texas Historical Commission, and the State

Historic Preservation Officer (SHPO). In our review, we applied

the Criteria of Effect and Adverse Effect, 36 CFR Section 800.9,

to this undertaking and conclude that the use of Runway 16-34

West will affect the integrity of the Grapevine Residential

Historic District, the Clifford J. Wall House, the Zebulon Jenkins

Farmhouse, and the Dunn-Barton House by diminishing their

setting, feeling, and association. The use of Runway 16-34 West

will cause an adverse effect through the introduction of visual

and atmospheric elements and appreciable increases in noise

levels that are out of character with these properties and their

historic setting. We have reached this decision after consider-

ing the noise analysis developed for the Dallas/Fort Worth En-

vironmental Impact Statement (EIS) that was based on the

development of Ldn contours of 65 dBA and greater. We

———————

A-62

recognize that this methodology has been utilized by the FAA

since 1979 and is consistent with the mandates of the Aviation

Safety and Noise Abatement Act of 1979 and the FAA’s Land

Use Compatibility Guidelines. However, we do not consider that

the Council’s analysis of project effects under Section 106 of the

National Historic Preservation Act is limited by these FAA

guidelines.

Additionally, we reviewed the “Agreement on Assessing the Ef-

fects of Dallas/Fort Worth International Airport Board’s Plans

to Construct Runway 16/34 West.” While this agreement may

create certain contractua

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