# Petition for Writ of Certiorari — County of Rockland, New York v. Federal Aviation Administration (No. 09-607) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1264%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2009 ## Text avmaaan 17 2009 Supreme Court, U.S. FILE Supreme Court: ort the Gin (ted States ¢ OF THE CLERK COUNTY OF ROCKLAND, NEW YORK, e¢ al., V. FEDERAL AVIATION ADMINISTRATION, et ai., * Petitioners, Respondents. On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit + PETITION FOR WRIT OF CERTIORARI ¢ LAWRENCE R. LIEBESMAN HOLLAND & KNIGHT LLP 2099 Pennsylvania Avenue, NW Washington, DC 20006 202-955-3000 Counsel for Petitioner County of Rockland, New York RICHARD BLUMENTHAL Attorney Genera! of Connecticut Counsel of Record ROBERT SNOOK Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 860-808-5270 Counsel for Petitioner State of Connecticut DONALD W. STEVER K & L GATES LLP 599 Lexington Avenue New York, NY 10022 212-536-4861 Counsel for Petitioner Friends of the Rockefeller State Park Preserve, Inc. PETER DICKSON POTTER AND DICKSON 194 Nassau Street Princeton, NJ 08542 609-921-9555 Counsel for Petitioners City of Elizabeth, New Jersey, New Jersey Coalition Against Aircraft Notse COCKLE LAW BRIEF PRINTING CO (800) 225 (402) 342.2831 OR CALL COLLECT 6964 QUESTIONS PRESENTED FOR REVIEW Whether the Court of Appeals erred in holding that the FAA did not wiolate the National Environmental Policy Act (NEPA) by failing to include a critical noise analysis for public com- ment as part of the EIS process for the NY/NJ/ Philadelphia Airspace Redesign Project, pre- venting the public from critically analyzing and commenting on an analysis that was central to the FAA’s determination that the project would not “use” public trust resources protected under section 4(f) of the Transportation Act. Whether the Court of Appeals erred in holding that the FAA did not violate the mandate of the National Environmental Policy Act (NEPA) by failing to implement night ocean routing, a fun- damental element of the selected alternative, in the Record of Decision (ROD), and by failing to include a mitigation measure explicitly agreed to in the Final Environmental Impact Statement. Whether the Court of Appeals erred in approving an FAA decision violating Section 4(f) of the Transportation Act and this Court’s decision in Overton Park when the agency affirmatively failed to obtain the comments of relevant state and local officials regarding protected parks and public trust resources. il QUESTIONS PRESENTED FOR REVIEW - Continued Whether the Court of Appeals erred by holding that the Petitioners had “forfeited” their claim under section 4(f) of the DOT Act that the FAA had failed to contact state and local Park officials and give “individualized attention” to at least 236 sites because that specific issue had not been raised during the administrative process. il LIST OF ALL PARTIES TO THE PROCEEDING The parties to the proceeding before the United States Court of Appeals for the District of Columbia Circuit, which is the court whose judgment is sought to be reviewed, were, as Petitioners, County of Rock- land, New York, County of Delaware, Pennsylvania, Town of New Canaan, Connecticut, Timbers Civic Assoc., Friends of the Rockefeller State Park Pre- serve, Inc., Board of Chosen Freeholders of the County of Bergen, New Jersey, John Hodge, First Selectman, Town of New Fairfield, Connecticut, City of Elizabeth, New Jersey, County of Union, New Jersey and the Union County Freeholders Air Traffic and Noise Advisory Board, New Jersey Coalition Against Aircraft Noise, The Borough of Emerson, Commissioner Connecticut Department of Environ- mental Protection and the Respondent Federal Aviation Administration. lV TABLE OF CONTENTS QUESTIONS PRESENTED FOR REVIEW ........ LIST OF ALL PARTIES TO THE PROCEED- (V0. Pe) wey y. 8): yy | >. Aree CITATIONS TO OPINIONS BELOW................... JURISDICTIONAL STATEMENT ...................... CONSTITUTIONAL PROVISIONS AND STAT- UTES INVOLVED IN THE CASE ................... STATEMENT OF THE CASE. .............c.ccsccssscsecees REASONS FOR GRANTING THE WRIT ........... I. THE COURT OF APPEALS HOLDING PERMITTING THE FAA TO DEFER A CRITICAL SUPPLEMENTAL NOISE ANALYSIS FROM THE SCRUTINY OF THE EIS PROCESS UNDERMINES FUNDAMENTAL NEPA LAW................... A. The FAA’s Ad Hoc Supplemental Noise Analysis Was Critical to the Public’s Understanding of the Project and the FAA’s Reliance on the Anal- ysis Without the Benefit of Public Comment Violated NEPA.................... B. The Court of Appeals Reference to the FAA’s “Extensive Public Outreach” to Justify the FAA’s Failure to Make the Post-EIS Supplemental Noise Analy- sis Available for Public Comment WEE SEITE cicansscanducnexhciduseinsbaseentess TABLE OF CONTENTS ~— Continued Page C. If Allowed to Stand, the Court of Appeals Decision Effectively Grants Federal Agencies “Carte Blanche” to Exclude Important Studies and Data from the NEPA Process by Relying on the Agency’s “Overall” NEPA Record.... 17 Il. THE COURT OF APPEALS ERRED IN UPHOLDING FAA'S SYSTEMIC VIOLA- TION OF THE MANDATES OF NEPA..... 20 A. The FAA Violated NEPA By Failing To Implement Night Ocean Routing Which Was a Fundamental Element of Its Selected Alternative in the De Cie TD siinvains dc vcbacancenccesesccccne 21 B. FAA Violated NEPA By Failing to Include a Noise Compliance Monitor- ing Plan in the ROD When it had Explicitly Committed to do so in the Final Environmental Impact State- NE aici antecicaca camdutenandcetipkcsidamielnisusstensaew: 22 Ill. THE FAA’S FAILURE TO FOLLOW THE MANDATES OF SECTION 4(f) OF THE TRANSPORTATION ACT BY NOT OB- TAINING THE COMMENTS OF STATE AND LOCAL OFFICIALS IS A MATTER OF VITAL IMPORTANCE TO PETI- TIONERS THAT WAS ERRONEOUSLY IGNORED BY THE PANBL............00.000.... 24 TABLE OF CONTENTS - Continued Page IV. THE COURT OF APPEALS ERRED BY FINDING THAT PETITIONERS HAD “FORFEITED” THEIR SECTION 4(f) CLAIMS BY NOT PRECISELY RAISING THE SPECIFIC ISSUE OF FAA’S DUTY TO CONTACT STATE AND LOCAL OFFICIALS EVEN THOUGH THE ISSUE OF THE PROJECT IMPACTS ON TRUST PROPERTIES WAS RAISED DURING - THE ADMINISTRATIVE NE a cscs sabhexcisasnuvecsaaisidaresaocueisesasaces 29 oi sain cua snennuenbantsescrdunddacestaneoks 35 APPENDIX Court of Appeals Decision ..................cceeceseeeeeeeees App. 1 PAA, Record Of DOCISION ............ccccercccccssesccsccscees App. 13 css acsiunbscsbssnsunncesoutenaas App. 146 Denial of Rehearing En Banc.....................006+ App. 148 I ccs icnscnasanycevdnnesnecebeddecneeseaeas App. 150 Record of Decision Appendix B Supplemental iii woah sanhsghancadvadsuhabertiubies App. 163 Sections of FAA Order 1050.1E ...................... App. 189 Comments of Harriett Cornell, Chair of County of Rockland Legislature ....................::ssseseee App. 209 County of Rockland Comments August 30, Tr RT er 2. OU oro Nae App. 215 Vill TABLE OF CONTENTS -— Continued Page Selected Pages of Final Environmental Impact Statement Appendix Q ............... cee eceee eee eeees App. 224 Department of Interior Comments. ................. App. 228 Selected Pages of Final Environmental Impact Statement Appendix N ................cceeseeceseeeees App. 241 Selected Pages of Final Environmental Impact SRI ics biva.ancctuulipecbaveinnasuivesibaedekabebnanean App. 249 FAA Response to Comment........................:066 App. 256 Friends of Rockefeller State Park Preserve RRAIIIIEIE « ousoeiocsentas 23 CFR §771.135(pX 4X ii) App. 87 the FAA re-evaluated the applicability of Part 150 guidelines to Section 4(f) resources in the Study Area. Based upon consultation with the National Park Service and comments from interested parties, the Final EIS included information about: (1) Section 4(f) resources potentially having quiet settings as a generally recognized feature or attribute of their significance, (2) a determination of no constructive use when such resources would be predicted to expe- rience less than a 3 DNL change in noise as a result of the selected project in 2011, and (3) the nature of airspace changes affecting such resources predicted to experience 3 DNL or greater increases in noise in 2011. The following paragraphs summarize the information included in Chapter Five of the Final EIS. Based upon consultation with NPS and interested parties and the data and analyses described in Chapter 5 of the Final MS and this ROD, FAA has gained additional knowledge about the relative nature and magnitude of project-related impacts in the overall context and the values of the resources protected by Section 4(f) in the study area. The data and analyses indicate that the mitigated Preferred Alternative will not result in a use of a park, recrea- tion area or wildlife and waterfow! refuge, or historic site of national, State, or local significance. App. 88 Constructive Use-Noise Since the selected project has the potential to result in changes in noise over Section 4(f) sites, the FAA conducted an analysis of whether there is a construc- tive use of any Section 4(f) properties. For a project to result in a constructive use of a 4(f) property, a sub- stantial impairment must occur. “Substantial impair- ment occurs only when the activities, features, or attributes of the resource that contribute to its significance or enjoyment are _ substantially diminished.... With respect to aircraft noise, for example, the noise must be at levels high enough to have negative consequences of a substantial nature that amount to a taking of a park or portion of a park for transportation purposes.”” The FAA relies on Part 150 [14 C.F.R. Part 150} guidelines to evaluate whether there is a constructive use of Section 4(f) lands where they are relevant to the value, significance, and enjoyment of Section 4(f) lands. Part 150 guidelines are appropriate in evaluating whether there is a constructive use of lands devoted to traditional recreational activities. Additionally, the FAA also relies upon Part 150 guidelines, as applicable, for evaluating whether there is a constructive use of historic properties such as for properties in use as residences. FAA Order 1050.1E, Appendix B, Section 6.2f App. 89 The FAA recognizes that Part 150 guidelines may not be appropriate to address 4(f) resources of value for their quiet settings, that is, lands where noise levels are very low and visitors have an expectation of quiet. “Special consideration needs to be given to the evalu- ation of the significance of noise impacts on noise sensitive areas within national parks, national wild- life refuges and historic sites, including traditional cultural properties. For example, the 65 dB DNL threshold does not adequately address the effects of noise on visitors to areas within a national park or national wildlife refuge where other noise is very low and a quiet setting is a generally recognized purpose and attribute.” In its comments on the Draft EIS dated June 12, 2006, the US Department of Interior recommended that FAA “perform more thorough analysis of impacts to National Park System units and other listed Section 4(f) resources ... and then re-evaluate the issue of 4(f) use.”” The FAA consulted with the National Parks Service (NPS) and _ considered comments from _ other interested parties to identify Section 4(f) lands valued for their quiet settings located in the Study Area. The National Parks within the Study Area, the Wilderness Areas of the Catskill State Park, Minnewaska State Park, and Shawangunk Ridge State Forest were identified as potentially having value for their quiet settings. These Section 4(f) lands " FEIS, Appendix N, (Section N.1 under Federal Agencies) App. 90 were subject to additional analysis to determine whether the impacts of the selected project constitute a constructive use. In evaluating the 4(f) lands identified as potentially having value for their quiet setting, the FAA de- scribed the property, highlighting any information relating to the level of use and visitor experience. Management, plans, when provided by the NPS/FWS, were reviewed and pertinent information was in- cluded in the description. Noise levels were calculated at points within each of the properties. Graphics and tables showing the locations and values of the calculated noise levels in each of the subject lands are included in Appendix J.3 of the Final EIS. The difference in noise exposure levels with and without the selected were compared and evaluated. Lands with a 3.0 DNL or Less Change The noise values (DNL) for the selected project for 2011 were compared to the 2011 Future No Action Alternative noise values. Where the difference in the noise level experienced as a result of the selected project, as compared to the 2011 Future No Action, was less than 3.0 DNL at all points analyzed within the property, FAA concluded the change in noise would not result in a constructive use of the Section 4(f) land. The use of 3.0 DNL for screening for con- structive use is a conservative application of the screening criteria used by the FAA to analyze noise levels below 65 DNL dB in NEPA documents and App. 91 consistent with Federal Highway Administration and Federal Transit Administration (formerly the Urban Mass Transit Administration) regulations defining constructive use under 23 C.F.R. §771.135." At a great majority of the Section 4(f) properties identified for additional analysis, the difference in noise exposure " The FAA adopted the recommendations of the Federal Interagency Committee on Noise (FICON) to broaden the scope of airport noise analysis to address 3 dB or more between DNL 60 and 65 dB in its NEPA documents. The Technical subgroup of FICON developed this criteria based on its assessment that a 3 dB increase in DNL, which represents a doubling of sound energy, is clearly perceptible at sound levels between DNL 60 and 65dB and suggests the need for additional analysis. FAA Order 1050.1E, Appendix A, paragraph 14.4c. For air traffic airspace actions such as the present one FAA normally uses the Noise Integrated Routing System (NIRs) to produce change-of- exposure tables and maps at population centroids based upon changes of 5 DB in the DNL 45-60 DNL dB contour area and changes of 3 dB or greater between DNL 60 and 65 DNL dB. FAA Order 1050.1E, paragraph 14.5e. DNL changes of 5dB are used because it requires a greater change in noise at lower noise levels to have the potential for people to perceive a change in the noise environment. Increases of 3 dB or greater were used as a screening tool here at all levels below DNL 65 dB, including areas far below FAA’s normal DNL 45dB lower limit for screening populated areas, to err on the side of more conservative screening. This resulted in additional analysis at much lower noise levels using much iower screening criteria than normal to provide special consideration to resources protected under DOT Section 4(f) identified as having a quiet setting as a generally recognized purpose and attribute and also to address DOI concerns that parks should not be equated to residential areas. The FICON guidance concerning 3 DNL db is more directly relevant here than the FHWA constructive use regulations, which relate to traffic noise exposure measured in hourly or 12 hour equivalent sound levels. App. 92 level would be less than 3.0 DNL. Therefore, the FAA concluded in the Final EIS that for these properties the selected project would not result in a constructive use. Lands with Some Change greater than 3.0 DNL Some of the Section 4(f) land would experience a change in noise exposure level of 3.0 DNL or greater as a result of the selected project. The FAA did not make a conclusion regarding constructive use of these properties in the Final EIS. Rather, in Section 5.3.5.1 of the FEIS the FAA committed to conduct further evaluation, in consultation with appropriate federal and state officials, to determine whether predicted noise increases over affected areas of these 4(f) re- sources would result in a constructive use. FAA further indicated that it would include the results of this evaluation and any necessary additional 4(f) analysis and determination in this Record of Deci- sion. The additional analysis is summarized below and detailed in Appendix B of the ROD. The Section 4(f) properties for which additional noise evaluation was conducted are: e Appalachian National Scenic Trail ¢ Delaware and Lehigh National Heritage Corridor ¢ Delaware Water Gap National Recreation Area ¢ Hopewell Furnace National Historic Site App. 93 ¢ Upper Delaware Scenic & Recreational River ¢ Weir Farm National Historic Site ¢ Wallkill River National Wildlife Refuge e Catskill Park (Big Indian — Beaverkill Range Wilderness Area, Slide Mountain Wilderness Area, Westkill Mountain Wilderness Area) Additional 4(f) Resources to which Part i50 Guidelines Apply Upon additional review, the FAA has determined that a quiet setting does not appear to be a generally recognized feature or attribute of the significance for several of the sites that were identified for further study in the Final EIS. The additional analysis and review is summarized below and detailed in Appendix B of the ROD. The Hopewell Furnace National Historic Site, Upper Delaware Scenic and Recreational River, and the Delaware and Lehigh Canal National Heritage Corridor are lands for which a quiet setting is not an attribute of the land. Therefore, pursuant to Order 1050.1E, the Part 150 guidelines should be used to evaluate whether there is a constructive use. The range of noise exposure levels resulting from the se- lected project for all three 4(f) properties were below the Part 150 compatibility guidelines. Additionally, the Hopewell Furnace National Historic Site, and the Delaware and Lehigh Canal National Heritage Corridor are historic properties and the finding under App. 94 Section 106 may be used to determine whether there would be a constructive use. Both sites are outside the APE determined in consultation with the appro- priate State Historic Preservation Officers and there- fore were not affected by the selected project. Lands for which a quiet setting is an attribute of the land With respect to the remaining Section 4(f) sites for which a quiet setting is an attribute of the land, a review of the data showed that with the selected project, the aircraft noise exposure levels at the points evaluated in all of these sites would remain within a range of 44.0 DNL at the highest to 15.5 DNL at the lowest. This range in noise level is low to extremely low. For example, FHWA has determined that a constructive use would not occur for “[IJands on which serenity and quiet are of extraordinary signifi- cance and serve an important public need and where the preservation of those qualities is essential if the area is to continue to serve its intended purpose” when the project noise does not exceed 57 Leq(h).” This can be conservatively equated to 43.2 DNL.“ '* 23 CFR §771.135 and Table 1 of 23 C.F.R. §772. ‘* The criteria are based on the 1-hour Leq (Leq(h)) metric for peak hour traffic. The DNL metric is a 24-hour cumulative noise metric with an added 10 dB penalty for events that occur during nighttime hours. Translating the 1-hr Leq threshold to a 24-hour Leg can be done conservatively (finding the lowest 24-hr threshold level) by assuming that the threshold value (Leq(h) 57 dB) would occur only one hour during the day and then no noise (Continued on following page) App. 95 Specifically any location that has an aircraft DNL value of 43.2 DNL or less could not possibly have a peak hour Leq(h) level of greater than 57 dB. The FAA evaluated the noise exposure levels at the remaining Section 4(f) properties, the Appalachian Trail, the Catskill Park Wilderness Areas, the Delaware Water Gap, the Wallkill National Wildlife Refuge and the Weir Farm National Historic Site, by considering the noise exposure level ranges and medians at each site. Based on this data, the FAA determined that the noise environment would not be substantially changed by the selected project and/or the comparable ambient noise levels are expected to be higher than future aircraft noise levels, and/or the site was not affected as it pertains to Section 106. Therefore, the FAA concluded that the selected project would not result in a constructive use of a 4(f) property as it relates to noise. FAA also considered effects upon the Wallkill National Wildlife Refuge considering the fact that one of its purposes is to preserve threatened and endangered species. Listed species known to inhabit the refuge currently or in the past are: the Indiana bat, bog turtle, dwarf wedge mussels, Mitchell’s satyr (extirpated), and American burying beetle (extirpated). for the remaining 23 hours of the day. This would result in a 24 hour Leg of 43.2dB. The comparison of DNL values to 24-hour Leq values generally represents a conservative comparison since DNL levels are typically higher than Leq values would be for the same amount of noise. — App. 96 As noted in the section of this ROD relating to threatened and endangered species, by letter dated August 27, 2007, the FAA determined that the se- lected project would have no affect on these listed species and requested concurrence from FWS. On September 5, 2007, the FWS concurred with the FAA’s determination of no effect to these federally listed species. See that section of the ROD for more details. Constructive Use-Visual Visual impacts would result in a constructive use of a 4(f) site only if the activities, features, or attributes of the site that contribute to its significance or enjoy- ment are substantially diminished. Normally, visual impacts are a result of construction, development, or demolition. The selected project does not include any of these actions. FHWA regulations defining construc- tive use include examples of when the proximity of a proposed project to a 4(f) site would substantially diminish aesthetic features or attributes that contribute to the value of a Section 4(f) property. “Examples ... would be the location of a proposed transportation facility in such proximity that it ob- structs or eliminates the primary views of an archi- tecturally significant historic building, or substan- tially detracts from the setting of a park or historic site which derives its value in substantial part due to its setting.” App. 97 The North Eastern Corridor of the U.S. is heavily populated and is a hub for domestic and international air traffic. The Study Area is already heavily traversed by commercial aircraft. The selected project is limited to changing the aircraft routes. At higher aircraft altitudes and with greater distances from viewers, it is unlikely that changes in the location of such tracks would substantially obstruct the primary vista or detract from the setting of 4(f) resources that derive their value in substantial part due to their settings and vistas. However, based on consultation with the NPS, the FAA provided additional informa- tion regarding potential airspace changes in the vicinity of outstanding vistas located within the National Parks, National Wildlife Refuges and the Catskill Park Wilderness Areas. As requested by the NPS, the FAA reviewed the management plans and other documentation for the parks to determine the locations of important and/or outstanding vistas. It is noted that many manage- ment plans referred to scenic qualities in a gener- alized manner but did not include the locations of specific outstanding vistas. Visual impacts were primarily considered only for the specifically iden- tified vistas. Thus visual impacts were considered for scenic vistas identified in the following parks: the Appalachian Trail, the Delaware Water Gap National Recreation Area, the Ellis Island National Monu- ment, the Gateway National Recreation Area, the Home of Franklin D. Roosevelt National Historic Site, the Morristown National Historical Park, the Statue App. 98 of Liberty National Monument, the Vanderbilt Mansion National Historic Site, the Elizabeth A. Morton NWR, the Oyster Bay NWR, the Stewart B. McKinney NWR, the Target Rock NWR, and the Big Indian, Slide Mountain, Indian Head, Westkill Moun- tain Wilderness Areas in the Catskills Park. For these locations, a summary of the potential airspace changes in the vicinity of the scenic vistas was pro- vided. This information includes number of opera- tions, and the minimum, average and maximum alti- tudes resulting from the Future No Action Airspace Alternative, Preferred Alternative, and the mitigated Preferred Alternative. Based on this information it was determined in the Final EIS that the selected project would not result in a constructive use relative to visual impacts for scenic vistas in the following parks: the Delaware Water Gap National Recreation Area, the Ellis Island National Monument, the Gate- way National Recreation Area, the Morristown Na- tional Historical Park, the Statue of Liberty National Monument, the Elizabeth A. Morton NWR, the Oyster Bay NWR, the Stewart B. McKinney NWR, the Target Rock NWR, and the Big Indian, Slide Mountain, and Westkill Mountain Wilderness Areas in the Catskills Park. Additional Analysis In Section 5.3.5.1 of the Final EIS the FAA committed to conduct further evaluation to determine whether visual changes over the Appalachian Trail, the Home of Franklin D. Roosevelt National Historic Site and App. 99 the Vanderbilt Mansion National Historic Site would result in a constructive use and to consult with appropriate federal officials. FAA further indicated that it would include the results of this evaluation and any necessary additional 4(f) analysis and deter- mination in this Record of Decision. The additional analysis is summarized below and detailed in Appendix B of the ROD. For the Appalachian Trail, the data shows that minimum altitudes for overflights would be the same with both the No Action Airspace Alternative and the selected project for all viewpoints except V19-20, V23-30 and V48-51. At viewpoints V19-20 and V23- 30 the minimum altitudes would be appreciably/approximately the same. At viewpoints V48-51 only very small number of propeller aircraft would fly at an altitude lower than the No Action Airspace minimum altitude. Operations would de- crease at 29 viewpoints (V1-V5; V12-18; V19-20; V59- 66, and V72-78) and increase at 48 viewpoints (V6-11, V23-30, V31-37, V38-V58, V67-71, V79). Currently, given their altitude and transitory nature, commercial aircraft do not obstruct the noted views along the Appalachian Trail. Therefore, since the selected project does not substantially change the minimum altitudes of commercial aircraft, it is concluded that the selected project would not result in an obstruction to the noted views nor would it substantially detract from the setting of the Trail. The visual effects of the airspace changes associated with the selected project are minor and would not App. 100 substantially diminish the activities, features, or attributes of the Appalachian Trail. The FAA thus concludes that the selected project would not result in a constructive use as it relates to visual impacts for the Appalachian Trail. Specific superb views overlooking the Hudson River, the bluffs and mansions across the river, and the Shawangunk Mountains to the west were noted in the both the Home of Franklin D. Roosevelt National Historic Site and the Vanderbilt Mansion National Historic Site Master Plans. According to Table 5.14 of the Final EIS, the total daily operations over these sites would increase from 109 with the No Action Airspace Alternative to 136 with the selected project. If those operations were spread out over a 24 hour period this would equate to 4.5 operations per hour with the No Action Airspace Alternative and to 5.7 operations per hour with the selected project. The table also shows that the minimum altitude of these operations does not change as a result of selected project. Therefore, because the change in the number of operations would be low and the minimum altitude would remain the same, the visual environment would not substantially change as a result of the selected project. It is thus concluded that the selected project would not result in a constructive use of these resources as it relates to visual impacts because the changes associated with the selected project would not substantially diminish the activities, features, or attributes of either historic site. App. 101 Based on analysis found in the Final EIS and Appendix B of the ROD, the FAA concludes that the selected project would not result in either a physical or constructive use of a 4(f) property. The FAA is committing as part of this ROD to monitor the implementation of the selected project as it relates to DOT Section 4(f) resources for which quiet and seren- ity are recognized attributes and purposes, utilizing adaptive management techniques. 5. Wild and Scenic Rivers The Wild and Scenic Rivers Act provides for the pro- tection and preservation of rivers that possess out- standingly remarkable recreational, geologic, fish and wildlife, historic, cultural, and other similar values. The designated wild and scenic rivers within the Study Area are: the Farmington Wild and Scenic River in Connecticut; the White Clay Creek in Delaware and Pennsylvania; the Great Egg Harbor River and the Maurice River in New Jersey; the Upper Delaware Scenic and Recreational River in Pennsylvania and New York; and the Middle and Lower Delaware Scenic and Recreational River in Pennsylvania and New Jersey. The FAA has determined that there would be no indirect or direct impacts on a wild or scenic river as a result of the selected project. None of these rivers lie in areas that will experience any reportable noise impact that is a significant or slight to moderate noise impact. App. 102 6. Fish, Wildlife, and Plants A. Fish, Plants and Wildlife Other Than Avian Species The selected project involves no ground disturbance, and therefore will not destroy or modify critical habitat for any species. Because the number of flights as well as the origin and destination of the flights will remain the same as with the No Action alternative, the selected project would not increase the opportu- nity for introduction of invasive species. Additionally, the selected project would not increase the probability of aircraft strikes involving non-avian species. Such strikes are either on or very close to the ground. Aircraft movement in areas where terrestrial species are likely to be involved in a strike is dictated by the location of runways and taxiways. The selected proj- ect will not alter runway or taxiways at any of the airports in the Study Area. The FAA has concluded that the selected project will have no significant impacts on fish, plants, or wildlife species other than avian species. B. Birds The potential impact to avian species resulting from changes to aircraft routes are measured by the poten- tial for the selected project to result in increases in the number of bird strikes. Absent any wildlife at- tractant, birds tend to be randomly distributed, and changing aircraft departure routes will not increase the potential for bird strikes. Wildlife attractants, App. 103 such as wildlife refuges and breeding colonies exist in the Study Area beneath initial departure routes. Aircraft fly over and near wildlife attractants pres- ently and would continue to fly over and near wildlife attractants in the Future No Action alternative. After considering the changes to aircraft routes as a result of the selected project, while there are noticeable differences in the flight patterns as a result of the selected project, there are no discernable changes to the relationships of flight patterns to birds within the bird study area. Thus, the selected project will not have any significant impacts. C. Threatened and Endangered Species The FAA coordinated the Draft EIS with the U.S. Department of Interior, which provided comments from both the FWS and NPS by letter dated June 12, 2006. The Department expressed concerns that the information in the Draft EIS about noise and visual effects, federally listed species, and aircraft-bird collisions was insufficient, but that these could he corrected by incorporating the Department’s recom- mendations for revisions into the FEIS in coordina- tion with NPS and FWS. This section of the ROD summarizes coordination with FWS in response to the request to include conservation measures such as flight restrictions at airports during nesting periods to protect federally listed species from noise and visual changes. FWS recommended maintaining a minimum vertical distance of 2,000 feet above ground App. 104 level or at least a 1-mile lateral distance from active nesting sites seasonally for each species. The FAA obtained information from FWS regarding the location of nesting sites so that more detailed information could be provided concerning how the preferred alternative would affect the piping plover, roseate tern, and bald eagle in comparison to the No Action Alternative in the future. Since the bald eagle has been removed from the endangered species list and is no longer subject to protection under Section 7 of the Endangered Species Act, as requested we assessed compliance with the National Bald Eagle Guidelines. These guidelines indicate that aircraft should not be operated within 1,000 feet vertical of nests during the breeding season, except where eagles have demonstrated tolerance for such activity. By letter dated August 27, 2007, FAA provided addi- tional information to FWS in support of its no effect determination on these three listed species. FAA also assessed the operational feasibility of restricting landings and takeoffs to protect existing nesting sites off the ends of airport runways. As to the recom- mended flight restrictions t» protect piping plover nesting sites and the sepaywtion criteria under the National Bald Eagle Guidelines, FAA confirmed that the distance between the closest flight tracks and nesting sites near airports would be the same under the Preferred Alternative with or without mitigation us it is under the Future No Action Alternative/ Existing Condition, citing circumstances at two air- ports. FAA also noted that because nesting at these App. 105 distances currently occurs, piping plovers and eagles have demonstrated a tolerance for such activity. Although nesting sites of the roseate tern have not been confirmed for many years, there is no indication that circumstances would be different for roseate terns. FWS staff requested more data comparing the dis- tances between flight tracks under existing conditions and the preferred alternative for all identified nesting sites of the piping plover. Although the preferred alternative does not increase traffic generally, FAA was also asked to address and document the potential for increased flights over these sites at attitudes below 2,000 feet. The FAA responded on September 5, 2007 and requested concurrence in its determination of no effect for the roseate tern and the piping plover. On September 5, 2007 the FAA obtained FWS concur- rence that the selected project is not likely to ad- versely affect the piping plover and roseate tern. While the U.S. Department of Interior expressed no concerns about species in the Wallkill River National Wildlife Refuge, FAA recognized as part of its further review of Section 4(f) resources that the purpose of this refuge is to preserve threatened and endangered species. Species known to inhabit the refuge pres- ently or in the past are the Indiana bat, bog turtle, dwarf wedge mussels, Mitchell’s satyr (extirpated), and American burying beetle (extirpated). Based on a review of the literature regarding effects of noise on animals, and the noise analysis indicating that the preferred alternative would not substantially change App. 106 the noise environment, the FAA expressly determined in its August 27, 2007 letter that the preferred alternative has no affect on these species. FAA sought concurrence as well regarding this determination. On September 5, 2007 the FAA responded to the FWS and obtained FWS concurrence regarding these determinations of no effect. 7. Light Emissions and Visual Impacts A. Light Emissions To determine whether light emissions will create a significant impact, FAA considers the extent to which lighting associated with the project will create an annoyance among people in the vicinity or interfere with their normal activities. Light emission impacts are most likely to occur at low altitudes and near the primary airports in the study area. Under current conditions, these areas are exposed to aircraft lights, and would continue to be exposed to aircraft lights under the Future No Action alternative. These same areas are most likely to be exposed to light emissions as a result of the selected project. Because the areas most likely to be exposed to light emissions will be exposed to a similar level of light emissions both with and without the selected App. 107 project, no significant light emission impacts will result.” B. Visual Impacts Generally, visual impacts result from the disturbance of the aesthetic integrity of an area. Because the selected project would not involve construction, alteration, or demolition of a facility, there would be no visual impacts from physical disturbance to the area. The selected project would cause more aircraft to be in areas in which they would not be under the Future No Action alternative. Changes to aircraft flight patterns at higher altitudes are not normally visuaily intrusive because of their distance from the ground. Changes at lower altitudes as a result of the selected project would occur predominantly near the primary airports in the study area where commu- nities are currently exposed to the sight of aircraft and would continue to be exposed to the sight of aircraft with the Future No Action alternative. Thus, there are no significant visual impacts as a result of the selected project. Visual impacts were also assessed in relation to Sec- tion 4(f) properties. See Section VI.4.B, and Appendix B of this ROD for a discussion of the visual impacts on Section 4(f) properties. ’* See FAA Orders 5050.4A and 5050.4B for guidance on the threshold of significance. App. 108 8. Air Quality Air quality impacts are assessed by evaluating the impact of the proposed project on the National Am- bient Air Quality Standards (NAAQS) for the six criteria pollutants. The impact of a project is the difference in emissions between an action alternative and the no action alternative in the future and how that projected difference would impact pollutant concentrations. Additionally, FAA must ensure that its project is in conformity with the state imple- mentation plan (SIP) for attaining the NAAQS. Under Section 176(c) of the Clean Air Act, FAA may not engage in, support in any way, provide funding for, license, or approve any activity that does not conform to the purpose of the approved SIP. The U.S. Environmental Protection Agency’s (EPA) adopted the General Conformity Rule (40 C.F.R. Part 93 subpart B) to provide guidance to Federal agencies in demon- strating conformity. Under the General Conformity Rule, a project does not require a conformity determination if the project is exempt, presumed to conform, or if the net increase in annual emissions is less than the de minimis thresholds outlined in the Rule. A NAAQS assess- ment for NEPA purposes is typically not required for projects that are exempt or presumed to conform under the General Conformity Rule. During the scoping process FAA consulted US EPA officials having jurisdiction within the study area, Regions 1, 2, and 3 to discuss the nature of the project App. 109 and analysis of air quality impacts. During the meet- ings FAA explained to EPA officials that an air qual- ity assessment was not required because the proposed airspace redesign actions were exempt from analysis under the General Conformity Rule as de minimis; the proposed action is not a capacity enhancement project and would not increase the total number of operations at airports in the study area; and the purpose and need for the project includes increasing efficiency and reducing delay which would serve to reduce fuel burn and air pollutant emissions. EPA officials working with the FAA Office of Airports officials to develop a list of air traffic and airport actions presumed to conform” subsequently raised questions about the legal status of the exemption for “air traffic control activities and adopting approach, departure, and en route procedures for aircraft opera- tions.” Determining Conformity of General Federal Actions to State or Federal Implementation Plans; Final Rule, 58 Fed. Reg. 63214, 63229, November 30, 1993. EPA staff raised these questions because the exemption for these activities was referenced in the Preamble, but not the final rule.” As a result of "© 40 CFR §93.153(f ). ‘’ “Further, EPA believes that Federal actions which are de minimis should not be required by this rule to make an applica- bility analysis. A different interpretation could result in an extremely wasteful process which generates vast numbers of useless conformity determinations.... Therefore, it is not necessary for a Federal agency to document emissions levels for a de minimis action. Actions that a Federal agency recognizes as (Continued on following page) App. 110 discussions with EPA staff, after determining that there was adequate supporting data, FAA deemed it prudent to include the activities described in the preamble to the General Conformity Rule as a pre- sumed to conform action in the Final Notice that FAA published in the Federal Register, Vol. 72, No. 145, pp. 41565-41580 on July 30, 2007. To determine whether reduced delays and more efficient flight routes would reduce fuel burn and respond to comments on the DEIS, FAA tasked a consultant to conduct a fuel burn analysis. The study projected fuel consumption on an average day in 2011 under the Future No Action Alternative, the Pre- ferred Alternative, and the selected project. See Final EIS, Appendix R. The analysis of fuel consumption demonstrated that the selected project would result in a reduction in fuel consumption of 194.4 metric tons per day, compared to the No Action Alternative. This was slightly less than the Preferred Alternative, which would reduce fuel consumption by 205 metric clearly de minimis, such as actions that do not cause an increase in emissions, do not require positive conformity determination. ... to illustrate and clarify several de minimis exemptions are listed in 51.853(c)(2). There are too many Federal actions that are de minimis to completely list in either the rule or this preamble. In addition to the list in the rule, the EPA believes that the following actions are illustrative of de minimis actions: . (2) Air traffic control activities and adopting approach, departure, and enroute procedures for air operations.” Deter- mining Conformity of General Federal Actions to State or Federal Implementation Plans; Final Rule, 58 Fed. Reg. 63214, 63229, November 30, 1993. App. 111 tons per day compared to the No Action Alternative. As reduced fuel consumption is directly related to reducing air pollutant emissions, the fuel burn analy- sis further shows that the selected project is exempt because it would clearly reduce rather than increase emissions. As discussed in the FEIS, based upon FAA’s experi- ence the proposed air traffic procedural changes will not induce growth in air or vehicular traffic or alter the distribution of air or vehicular traffic among airports. Such changes are not likely to change pas- senger airport preferences based upon ticket cost, airport location, and service to the desired destina- tion. Based upon the EIS and the clarification in the footnote below regarding regional significance, the proposed airspace redesign alternatives and the selected project are either exempt or presumed to conform under the General Conformity Rule.” As ‘* The Final FAA Notice Federal Presumed to Conform Actions deferred action on the aspect of its Draft Notice relating to regional significance of presumed to conform actions based upon consultation with US EPA. However, the reasoning in the FAA’s Air Quality Handbook cited in the Draft Notice indicates that these emissions would not be regionally significant under 40 CPR §93.1530). Even assuming, without conceding, that the proposed airspace redesign alternatives and the selected project cause a de minimis increase in emissions, they would not represent 10 percent or more of the total emissions of these pollutants in any area. The highest de minimis threshold level for the four pollutants of concern in the study area (CO, ozone, SO,, and PM,. and PM,,,) is 100 tons per year. The total emissions (Continued on following page) App. 112 such, a detailed assessment under NEPA and a positive conformity determination under the Clean Air Act are not required. The selected project will not cause a new violation of the NAAQS, worsen an existing violation, or delay meeting the standards of the carbon monoxide, ozone, sulfur dioxide, and particulate matter NAAQS in the five states within the Study Area.” Moreover, because the selected project would reduce fuel burn compared to the Future No Action Alternative it would also reduce emissions of carbon dioxide and other greenhouse gases. 9. Natural Resources and Energy Supply Order 1050.1E calls for major federal actions to be examined to identify whether the action would have a inventories for the relevant areas all exceed 1,000 tons per year for these four pollutants. '’ The study area includes the entire state of New Jersey and portions of Connecticut, Delaware, New York, and Penn- sylvania. The geographic areas within the Study area that do not meet the National Ambient Air Quality Standards (i.e. non-attainment areas) or that were non-attainment and re- designated as attainment (i.e. maintenance areas) are discussed in Chapter 3 of the EIS. See, FEIS Tables 3.20-3.22 and Figures 3.20-3.22. The study area includes areas designated as mainte- nance for carbon monoxide (CO) and non-attainment for three other pollutants: ozone (8 hour standard), sulfur dioxide (SO,), and particulate matter (PM ,, and PM). No portion of the Study area is non-attainment or maintenance for nitrogen dioxide (NO.,) or lead (Pb). App. 113 measurable effect on local supplies of energy or natural resources. Neither the Future No Action alternative nor the selected project would involve construction or modifi- cation of a facility, thus the selected project would not involve an irretrievable commitment of natural re- sources. Additionally, as demonstrated in the fuel burn analysis, FEIS Appendix R, the selected project is expected to result in a decrease in the use of avia- tion fuel of approximately 66,840 gallons per day. 10. Construction Impacts The selected project will not involve any construction activity and thus will have no construction impacts. 11. Farmlands The selected project will not involve any physical ground disturbance and will have no impacts on prime or unique farmland. 12. Coastal Resources A. Coastal Zone Management The states of Connecticut, Delaware, New Jersey, New York, and Pennsylvania have initiated coastal zone management programs (CMZP). Because there will be no impact to surface resources, the selected App. 114 project will not have an impact on the CMZP for Connecticut, Delaware, New Jersey, New York, and Pennsylvania. At the request of the state of Delaware, federal con- sistency determinations were prepared in accordance with each state’s CMZP. Delaware concurred in the consistency determination. Connecticut, New Jersey, New York, and Pennsylvania did not respond to the consistency determination for its state. The FAA’s consistency determinations can be found in Appendix K of the Final EIS. B. Coastal Barriers The selected project will not result in the develop- ment or physical alteration of facilities that would adversely affect resources protected in the Coastal Barrier Resource System. 13. Water Quality The selected project will have no impacts to water quality because it does not involve the construction or physical alteration of facilities. 14. Wetlands There will be no impacts to wetlands as a result of the selected project because it does not involve the construction or physical alteration of facilities. App. 115 15. Floodplains and Floodways The selected project will not involve in the construc- tion or physical alteration of facilities and would have no impact on Floodplains and Floodways. 16. Hazardous Materials, Pollution Pre- vention and Solid Waste A. Hazardous Materials There will be no ground disturbances as a result of the selected project therefore it will not result in the disturbance of materials identified as a substance capable of posing an unreasonable risk to health, safety, and property. Moreover, the selected project is not forecast to increase the level of aircraft operations in the study area over the Future No Action alterna- tive. As a result, the selected project will not result in an increase in the generation of materials identified as a substance capable of posing an unreasonable risk to health, safety, and property. B. Pollution Prevention The selected project will increase the efficiency of the airspace, result in more direct routing, and decrease the use of fuel by 194 metric tons per average day. As a result the selected project will tend to decrease pollution in the study area. App. 116 C. Solid Waste The selected project will not result in the long-term generation of municipal solid waste because it will not involve construction or the physical alteration of facilities. 17. Cumulative Impacts A. Projects CEQ defines cumulative impacts are the incremental impacts of the action when added to other past, present, and reasonably foreseeable future actions regardless of the agency undertaking the actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. 40 C.F.R. §1508.7. In analyzing the possible cumulative impacts of the Airspace Redesign project, FAA considered potential projects proposed in or near the study area. Project data was gathered from FAA, state DOT websites, Comprehensive Land Use Plans and other area and local plans. Because the impacts from the selected project were either noise or noise related, only those proposed projects that had the potential for cumula- tive noise impacts were considered. Four projects were determined to have the potential for cumulative noise impacts: Runway 17/35 Extension at PHL, Capacity Enhancement Program (CEP) at PHL, Part 150 Study at Bradley International Airport (BDL); and Board authorization for the Port Authority of App. 117 New York and New Jersey (PANYNJ) to acquire the lease fur Stewart International Airport (SFW). The Runway 17/35 Extension at PHL is underway and is expected to be operational by early 2009. The Final EIS for the runway extension project indicates that the runway extension is expected to result in only a very minimal change in the noise pattern around PHL. Additionally, the runway extension project will not increase capacity at Philadelphia International. Therefore’ significant cumulative impacts are not expected. The purpose of the CEP at PHL is to increase the airfield capacity of Philadelphia International. The need for increased airficld capacity at Philadelphia International is independent of the selected project. While the CEP has the potential for cumulative impacts with the selected project, there has been no determination of the reasonable alternatives for the project and there is insufficient information to evalu- ate cumulative impacts at this time, especially as they relate to noise. The FAA is preparing an EIS for the CEP project, which will include a consideration of the selected project. A Part 150 Study was developed for Bradley Inter- national which included a noise compatibility pro- gram involving airport-specific noise abatement measures. The selected project will not disturb the noise abatement measures resulting from the Bradley International Part 150 study. The noise compatibility program will have the effect of decreasing noise in the App. 118 vicinity of Bradley International, and thus is not likely to have significant negative cumulative impacts. In January 2007, the PANYNJ’s Board of Commis- sioners authorized it to purchase the operating lease to SFW. The intention in the PANYNJ acquiring Stewart was to use it as a fourth airport for the New York/New Jersey Metropolitan Area, providing relief for the three major area airports in the form of delay reductions, and to prepare for inevitable population and passenger growth. As of July 2007, the PANYNJ was still in negotiations to acquire the lease. Even if the PANYNg is successful in acquiring Stewart, it is unclear whether airlines would be willing to operate at Stewart, especially in light of a recent announce- ment by American Airlines, the last scheduled pas- senger air carrier with service at Stewart, that it was ceasing service to the airport. This proposal is specu- lative and not reasonably foreseeable, thus was not considered in the evaluation of cumulative impacts. The FAA also considered other airspace redesign projects in evaluating the potential for cumulative impacts. The FAA has issued RODs for airspace re- design projects for the Chicago Terminal Area (CTAP), and the Potomac Consolidated TRACON Airspace Redesign after completion of an EIS for each project. There was no overlap in the study areas for each of the projects with the study area of the selected project, and the CTAP and Potomac projects will not induce growth or increase capacity. The se- lected project will not result in significant cumulative impacts in combination with these projects. App. 119 The FAA issued a FONSI/ROD based on an Envi- ronmental Assessment (EA) for the Midwest Airspace Enhancement Airspace Redesign in the Cleveland/ Detroit Metropolitan Areas. The study area for this project does not overlap the study area for the se- lected project and will not induce growth or increase capacity. No significant cumulative impacts will result from the selected project in combination with this project. B. Ambient Comparison FAA also looked at the potential for cumulative noise impacts by considering total noise, ambient noise, and aircraft noise. Noise measurement data, pre- sented in Final EIS Appendix D, was analyzed in conjunction with the noise modeling computations for each noise measurement she in the study area. Such an analysis permitted FAA to consider the contribu- tion of aircraft noise, including traffic operating under Visual Flight Rules, to the total noise at each site. This type of analysis can only be conducted specific to each noise measurement location, however it does provide insights into how the selected project contributes to the noise in the area. Measured noise levels at each of the 18 noise meas- urement sites contains contributions from all noise sources, including both aircraft and non-aircraft sources. After completing the analysis, the details of which can be found in Section 4.18.2 of the Final EIS, App. 120 it was clear that the changes in the total noise envi- ronment as a result of the selected project would be very small in the context of the total noise environ- ment for locations that are not situated very near a major airport. This analysis supports the FAA’s determination that there are no significant cumula- tive impacts as a result of the selected project in combination with other past, present, or reasonably foreseeable future actions. VII. Public and Agency Involvement The FAA followed NEPA guidelines and involved the public and other agencies in the impact assessment process. The public and agencies were given the opportunity to assist in determining the scope of issues to be addressed in this EIS during the informal pre-scoping and formal scoping period. After the scoping meetings, the FAA held a number of agency meetings, distributed newsletters, and created a website to educate, inform, and receive feedback from concerned citizens and organizations. The pre-scoping process included a series of airspace redesign workshops. Thirty-one workshops were held throughout the Study Area between September 22, 1999, and February 3, 2000. A total of 1,174 people attended the workshops and 712 comments were received. The formal scoping period was January 22, 2001 through June 29, 2001. The scoping process consisted App. 121 of 28 public meetings and three agency meetings held in various locations throughout the Study Area. A total of 1,031 people attended the scoping meetings and 901 comments were received. In addition to formal scoping meetings, the FAA met with agencies with jurisdiction or special knowledge relative to the Airspace Redesign project on an as needed basis. Typically, each meeting consisted of introductions, a slide show presentation, and a video on the NY/NJ/PHL Metropolitan Airspace Redesign project. The agencies were encouraged to share their concerns or comments regarding the Airspace Rede- sign. The agency comments and concerns were used by the FAA ir assembling the materials needed for the Draft EIS. Throughout the development of the EIS, the FAA consulted with interested agencies and organizations. Table ES.7 of the Final EIS provides a sampling of the agencies and organizations consulted. (See Ap- pendices L and M for additional information regard- ing agency consultation.) Periodic briefings were also given to members of Congress, the New Jersey and Delaware Congressional delegations, and various Governors’ offices. The Draft EIS was distributed to interested federal, state, and local agencies, and citizens for review and comment. (See Chapter Nine for a comprehensive list.) Public information meetings were held for the Draft EIS from February 2006 through May 2006. On February 16, 2006 emails were sent to over 580 App. 122 residents listing the specific meeting locations and on February 24, 2006 postcards were sent to over 3,200 residents with specific meeting locations. Each meet- ing was publicized through multiple local newspapers and radio stations. The public meeting process con- sisted of 30 meetings held in various locations throughout the Study Area. A total of 1,166 people attended the public meetings, and a total of 321 written and oral comments were received. The FAA reviewed and responded to all comments received during the comment period. On April 6, 2007, the FAA published its Noise Mitiga- tion Report, providing detailed information on mitiga- tion measures for its Preferred Alternative. FAA informed the public of its availability through the FAA website and provided copies of the report to 71 libraries within the Study Area. FAA conducted seven public information meetings to discuss the Preferred Alternative and the proposed mitigation measures. The FAA accepted comments on the Noise Mitigation Report through May 11, 2007. Comments were also accepted at the Mitigation public information meet- ings held in June. Over 2,200 people attended the meetings, and approximately 1,700 written and oral comments were received. The FAA engaged in several other initiatives to educate and involve the public in the Airspace Rede- sign Project. One of the primary initiatives was the project website. The project website was established in 2002 and provided both important project related information and the opportunity to submit comments App. 123 to the FAA. Another initiative was the video format that was used to explain various stages throughout the study. Volume 4 of the video series specifically outlines noise abatement strategies and identifies the Preferred Alternative. Although the public comment period had closed, at the request of Congressman Eliot Engle, FAA agreed to attend a meeting held in Rockland County, New York on July 30, 2007 to respond to questions and hear the concerns raised by citizens. Approximately one thousand people attended the meeting. A trans- cript of the meeting was taken by Rockland County and is posted on the project web site at: www.faa.gov/ nynjphl_airspace_redesign. A large majority of the people expressed a desire for FAA to adopt the No Action Alternative. Others expressed an interest in moving the arrival flight track which passes over Rockland County further to the west between 3 to 5 miles. Questions raised included whether FAA could increase the altitude of the flight tracks over Rockland County. One inquiry that was raised was whether the FAA could include a stipulation in the FAA’s Record of Decision requiring commercial air- craft using the approach track to EWR be Stage 4 compliant by a specified year. In addition, there were a number of quality of life concerns. The comments at the Rockland County meetings were consistent with the comments received at the other meetings. These comments did not change the outcome of our decision. App. 124 VIII. Comments on the FEIS The FAA received six comment letters on the FEIS. Aithough not required, the FAA reviewed the com- ments and to the extent the commenter raised a new issue, the FAA herein provides a response. Mr. Tim Stull, Manager of Air Traffic Systems at United Parcel Post (UPS) EWR Night-time Ocean Routing would cause a significant operational burden to UPS, likely cause an increase in emissions over parts of Staten Island area and add significant com- plexity to the New York Metro Air Traffic Area, increase flight time for departures which in- crease costs and potential for significant down- line disruption to our nework. The commenter is correct that nighttime ocean rout- ing will likely increase flight time for departures, fuel burn, and emissions and will require greater sophis- tication in traffic management. The increase in de- mand at JFK since the operational analysis of this mitigation measure was completed has changed in the operating environment. Appendix O of the Final EIS states, “Since there are so few JFK flights affected during the nighttime hours between 0230 and 1000 GMT (Greenwich Mean Time), [night-time ocean routing] would not have an impact on the operations.” This is no longer a completely accurate description of the night-time operations at JFK. Bad weather and volume during the day push JFK arri- vals late into the night. On 32 days in June and July, App. 125 JFK was accepting arriving aircraft at a rate of 30 per hour until midnight (0400 GMT). On 15 days, that rate continued until 1 AM (0500 GMT). These arrival rates are not compatible with ocean routing from EWR, since when the over-water airspace is already occupied by JFK arrivals, it is very inefficient to use it for crossing flows of EWR departures. In this operating environment, predictability also suffers. It will frequently not be known until the evening whether the ocean route is safe or not on any given night, so the dispatchers will not know in advance whether to plan for the extra flying time or not. As to increased fuel consumption, FEIS Appendix R shows that night-time ocean routing causes the fleet to burn (on average) seven metric tons per day of extra fuel. This reduces the fuel-consumption benefit of the pre- ferred alternative by some 3.5%. The FAA will care- fully monitor traffic levels at JFK after we implement this mitigation measure to determine whether there are new circumstances that make it operationally infeasible. If it is necessary to revise or eliminate this measure then we will reevaluate the FEIS, undertake appropriate environmental review, and amend this ROD. App. 126 Kroposki Mr. Michael Kroposki, Esq. makes five points: 1) The acquisition of Stewart International Airport by the Port Authority means that future demand will be directed there. Traffic at EWR will not grow high enough to make redesigned airspace beneficial. Stewart International Airport is far from New York City. History shows that when a new airport farther from the population center is opened, it takes decades for traffic to build to levels that rival the old, close-in airport, even when laws are passed restricting use of the old airport. Examples are Dulles International and National Airport in Washington, and JFK and LaGuardia in New York. In Dallas, when Dallas-Ft. Worth International Airport opened, Love Field was scheduled to be closed. Despite this, demand for close- in air service remained high enough that, thirty years later, Love Field is still an important airport, han- dling two-thirds as much traffic as LGA. It can not be assumed that the availability of Stewart will reduce demand at EWR in the foreseeable future. App. 127 2) The forecast levels of traffic at EWR are too high. Realistic future traffic levels will be low enough that the delay savings in the Preferred Alternative will not be worth the extra mileage that aircraft must fly. The forecast levels of traffic for EWR used in the operational analysis were 1575 arrivals and depar- tures on the 90th percentile day in 2006 and 1634 on the 90th percentile day in 2011. It is important to compare these numbers to high-traffic days, not to monthly or yearly totals. According to the FAA’s official traffic reporting system, the Operations Net- work (or “OPSNET”), on the 90th percentile day of July 2006 EWR worked 1572 operations. The forecast was right on. The comparable number for July 2007 was 1554, less than 2% below the forecast. It is cor- rect that traffic at EWR has effectively leveled off, but it has leveled off at the forecast level. The forecast growth in demand between 2006 and 2011 can not be refuted by pointing to counts of traffic actually han- dled, since the traffic actually handled is limited by the inefficiency of the current system. EWR was not forecast to be able to run dual arrivals in 2006, so actual counts match the forecast fairly well. Without dual arrivals, actual traffic at EWR may remain at the current plateau (with small increases for im- proved technology), but unmet demand will continue to accumulate, dragging down the local economy. The 3-4% increase anticipated in the 90th percentile day in this study is a reasonable and prudent assumption. App. 128 3) The 2011 forecast is not far enough in the future to satisfy the requirements of a five-year horizon for future traffic. This assertion seems to contradict the second point. If the traffic forecasts are too high for 2011, then they are certainly on target for some year after 2011. The increase in traffic between 2011 and 2012 will not be great enough to change the qualitative conclusions of this study, so the study remains valid. 4) The forecasts are too high because future year forecasts are based on an assump- tion of good weather on all days. A sub- stantial portion of the delay savings can not be realized, because the airport is sometimes closed due to severe weather. It is not the purpose of an airspace redesign to in- crease efficiency at an airport that is closed by thun- derstorms. The efficiency of the airspace design is most important on high-traffic days. When annual- ized benefit numbers are quoted, they include the effect of days when severe weather limits the traffic the modeled airports can handle. 5) Given that the dual arrivals at EWR are what necessitates the realignment of LGA traffic that is his particular concern, the LGA realignment should not be imple- mented until such time as EWR traffic has grown to require it. This is a valid point, and is well taken. As indicated above, EWR traffic has already grown to a point App. 129 where dual arrivals would be a benefit to users of the airspace and to the local economy. New Jersey Coalition Against Aircraft Noise (NJCAAN) The letter from NJCAAN makes three points, since most of their cited sources discuss various techniques of demand management. First, the study did not include demand management, which can reduce delays more effectively than an airspace redesign. Second, that the Integrated Noise Model has been shown to underestimate noise from several types of aircraft, so the noise estimates in the study are in- correct. Third, that the increased flying distances in the Preferred Alternative will increase fuel consump- tion to a point that the fuel savings from decreased delay will be more than offset, and the result will be increased emissions from aircraft engines. 1) Demand Management obviates the need for airspace redesign. In Appendix Q, comments on demand management received the response that the FAA did not include demand management as an alternative because “Changing access to the airport is the responsibility of the airport proprietor. The airport proprietor is unlikely to force its customers to operate in a manner that seems to them less profitable.” The Port Author- ity of New York and New Jersey appears much closer to a demand management program in August 2007 than when Appendix Q was written, but the funda- mental fact remains true: An airport operator is App. 130 unlikely to let airport capacity go to waste. A change to larger aircraft will absorb the increase in passen- ger demand, but will not reduce the number of opera- tions. For reasons stated above in the responses to Mr. Kroposki, the opening of Stewart International Airport is unlikely to affect EWR operations in the forecast time frame. The INM underestimates aircraft noise. Noise modeling with the INM and NIRS necessarily makes simplifying assumptions. The cited research shows that, under atmospheric conditions that cause the least attenuation of noise from aircraft, the INM underestimates single-event noise levels from Boeing 767-300 and 737-400 aircraft. The INM is almost exact for B747-400, and has some overestimates and some underestimates for the A320-111. This study was conducted in accordance with the techniques set out in FAA Order 1050.1E, which mandates the use of DNL estimates calculated by INM and NIRS for noise studies, and sets thresholds for reportable noise changes. The thresholds are defined in terms of INM and NIRS results, not in terms of measured sound levels. Therefore, a systematic bias in the INM will not affect the validity of the study, since the same bias is present in the measurements and in the thresholds against which they are compared. The differences between the estimated noise levels and the thresholds will be correct. App. 131 The Preferred Alternative will increase fuel consumption. The Preferred Alternative requires some extra flying distance in order to avoid congestion, much the same way a freeway bypasses the traffic lights in town. When traffic levels are low, it is not worth it to take the freeway. However, as mentioned above, traffic levels in the summer of 2007 are already high enough that the extra mileage would be worth flying to reduce delays, and total fuel consumption will de- crease. Rockland County The letter from the Chair of the Rockland County Legislature makes five points. 1) The Noise Mitigation Analysis in Appen- dix P does not compare the mitigation of the Preferred Alternative with Future No Action, but only with the Preferred Alter- native without mitigation. This is incorrect. Tables 4, 5, 8, 9, 11, 12, 13, and 14, and Figures 4, 5, 12, 13, 18, 19, 23, 24, 26, 27, 29, and 32 of Appendix P contain this information. 2) The Modifications Alternative should be investigated, since “This would eliminate the “controversial Newark Runway 22 flight path over Rockland”. The Modifications Alternative was thoroughly investi- gated in Appendices C and E of the EIS. Its benefits App. 132 to the aviation system were found to be insufficient to make it the Preferred Alternative. 3) Does the FAA have hard evidence on how 600 flights per day over Rockland County will affect air quality? Aircraft emissions affect air quality in two different ways. First, aircraft on the ground and at altitudes below the so-called “mixing layer” (usually about 1500-2000 feet above ground level) emit exhaust that behaves like car exhaust. It stays in the vicinity where it is generated, and can pollute the air near the airport. These low-altitude fuel emissions are reduced by the Preferred Alternative, but this is irrelevant to Rockland County, since the aircraft never come low enough. Above the mixing layer, winds blow aircraft emissions around freely, so the effect is not localized. These emissions could affect Rockland County, as well as all other counties in the area. The fuel burn analy- sis in Appendix R shows that these emissions will decrease under the Preferred Alternative. 4) How will flights over Rockland County, and the attendant risk of an aircraft dis- aster, affect the quality of the water in their aquifer? Flights over Rockland County are high enough that normal operations will not affect aquifers, which are underground. An aircraft crash could, as a tertiary effect, cause a small amount of toxins to get into the ground, which may affect an aquifer. The FAA is App. 133 dedicated to reducing aircraft disasters as far as is humanly possible. 5) “Increased airplane noise will have a negative effect on the enjoyment of our open spaces as well as a negative effect on the fauna of our parks.” The noise exposures in Rockland County under the Preferred Alternative, are higher than in the Future No Action Alternative, but they are at the bottom of the thresholds set in Federal regulations. Those thresholds were set by considering outdoor enjoy- ment, among other factors. When mitigation meas- ures such as Continuous-Descent Approaches are included, Rockland County noise exposures fall below the thresholds, and are not forecast to cause such negative effects. Congressman Eliot L. Engel, dated 8/31/07 Comments noted. The points expressed in Congress- man Eliot Engel’s letter have been addressed indi- vidually in the Final EIS. A transcript of the July 30, 2007 public meeting held at the request of Congressman Eliot Engle is availa- ble for review on the project web site at www.faa.gov/ nynjphl_airspace_redesign On August 31, 2007, the FAA received an additional comment letter from attorneys representing Rockland County, New York. The FAA has completed a prelimi- nary review of this letter and its attachments. The letter raises issues that have already been addressed App. 134 by the FAA during the public comment process. As such, the FAA is not providing additional responses to this letter. A copy of this letter and attachments is included in Appendix D. IX. Agency Findings In accordance with all applicable laws, the FAA makes the following finding for this selected Project. These findings are based on a careful review of the EIS, appropriate supporting evidence and other rele- vant portions of the administrative record. A. Airspace redesign will ensure the safety of aircraft and the efficient use of airspace. (49 U.S.C. 40103(b)) The Federal Aviation Act of 1958 gives the Adminis- trator the authority and responsibility to assign by order or regulation the use of the navigable airspace in order to ensure the safety of aircraft and the effi- cient use of the airspace. In its effort to continually ensure safety of aircraft and improve the efficiency of transit through the navigable airspace, the FAA will modify aircraft routes and air traffic control proce- dures used in a 31,180 square miles area encompass- ing the entire state of New Jersey and portions of four other states: Connecticut, Delaware, New York, and Pennsylvania (the study area). The selected project will more efficiently deliver aircraft to and from airports in the study area, with limited affect on ether airports in the study area. This will enhance App. 135 the efficiency of the navigable airspace, while reduc- ing the future environmental impact of aircraft operations in the NY/NJ/PHL metropolitan area. In choosing the selected project, the FAA evaluated a full range of alternatives for airspace redesign. The selected alternative will best accomplish the goals of airspace redesign, enhance the safety of aircraft, protect persons and property on the ground, and improve the efficiency of the airspace. Additionally, not only is the selected alternative effective at reduc- ing overall noise exposure as compared to the original Preferred Alternative, but it also reduces noise rela- tive to the Future No Action Airspace Alternative for persons exposed to 65 DNL or greater noise levels in 2011. B. This project does not involve the use of any historic sites or other proper- ties protected under Department of Transportation Section -303(e), also known as Section 4(f) or convert rec- reation areas protected under Land and Water Conservation Act Section 6(f). The selected project does not involve physical devel- opment or modification of facilities and therefore results in no actual, physical use of resources pro- tected under DOT Section 4(f) or conversion of prop- erties protected under Land and Water Conservation Act Section 6(f). However, it would change airspace App. 136 design and flight paths at some high and low alti- tudes to make more efficient use of existing airspace and airport runways. It has the potential to cause constructive use because it would increase flights over some areas and decrease flights over others, eliminate some flight paths and create some new flight paths. The determination that the selected project would not cause a use of historic properties listed on or eligible for listing on the National Register of Historic Places is based upon consultation under Section 106 of the National Historic Preservation Act with the State Historic Preservation Officers in each State within the Study area. As to constructive use of other 4(f) resources, the analysis in the EIS and the additional analysis in- cluded in the ROD in response to DOI comments, confirm that the selected project would not cause increases in noise or other proximity impacts suffi- cient to impair the value of those resources. The additional analysis in the ROD focused upon parks and historic properties identified as having a quiet setting as a generally recognized purpose and attribute that were projected to experience increases in noise of 3 DNL dB or greater and those having important vistas. As a safeguard the FAA commits in this ROD to apply an adaptive management approach in implementing the selected project. Unlike putting a highway next to a sacred site, these revised flight paths are somewhat flexible and lend themselves to the use of adaptive management techniques. App. 137 C. There are no disproportionately high or adverse human or environmental effects from the project on minority or low-income populations. (Execu- tive Order 12898) The environmental justice analysis in the EIS ex- amined the areas significantly impacted by noise for disproportionately high and adverse human and environmental impacts to low income and minority communities. FEIS Section 5.3.2 indicated that the addition of mitigation measures to the preferred alternative (the selected project) would cause signifi- cant noise impacts in a residential area west of PHL in 2006. However, the selected project would elimi- nate all potentially significant noise impacts by 2011. The population in the area significantly impacted in 2006 is not 50% minority, nor does the significantly impacted area contain a meaningfully greater percen- tage of minorities than the surrounding area. The median income in the significantly impacted area is above the poverty level. Additionally, reasonable efforts were made to involve minority and low-income populations in the EIS process. Therefore, the se- lected project would not cause a disproportionately high and adverse human or environmental impact on minority or low income populations in 2006 or 2011. App. 138 D. Clean Air Act, Section 176(c)(1) Con- formity Determination (42 U.S.C. §7506(c)) The DEIS, FEIS, and this ROD address general conformity requirements under the Clean Air Act. The selected project is an air traffic control activity and adoption of approach, departure, and en route procedures for air operations which is either exempt under 40 CFR 93.153(c) or presumed to conform and not regionally significant under 72 Fed. Reg. 41565, July 30 2007. The fuel burn analysis in FEIS Appen- dix R confirms that the selected project will reduce fuel and emissions in comparison to the No Action Alternative and is therefore exempt from detailed analysis under the Clean Air Act. The analysis indi- cated that the Preferred Alternative with and without mitigation reduced fuel burn when compared to the Future No Action Alternative. The NY/NJ/PHL Airspace Redesign would not result in development of physical facilities. Nor will it be likely to induce, change, or redistribute traffic in the airspace or at the airports in the study area. Air and vehicular traffic will continue to be governed by passenger preferences based upon ticket prices, airport location, and service to desired destinations, not the efficiency of air traffic procedures and air- space design. In sum, detailed analysis was not necessary to conclude that the selected project con- forms with the purposes of the SIPs in the six States within the Study Area. By its very nature it will not cause a new violation of the NAAQS, worsen an App. 139 existing violation, or delay meeting the standards of the carbon monoxide, ozone, sulfur dioxide, and particulate matter NAAQS in the six states within the Study Area. E. The FAA has given this proposal the independent and objective evalua- tion required by the Council on Envi- ronmental Quality (40 CFR §1506.5) As described in the NY/NJ/PHL Airspace Redesign Final EIS and in Section IV of this ROD [when al- most complete, double check that Alternatives are still discussed in Section 3], FAA employed a detailed process in identifying reasonable alternatives that led to identification of a preferred alternative. Through- out, numerous FAA air traffic control specialists provided expertise and guidance on technical matters that arose during the formative steps. The FAA evaluated the technical feasibility of the Proposed Action and determined the alternatives to be evalu- ated for potential implementation. The proposed NY/NJ/PHL Airspace Redesign represents the best judgment of the FAA in its key area of expertise: the safe, orderly and expeditious movement of air traffic. Similarly, the FAA has conducted an independent review of the factual assumptions contained in the NY/NJ/PHL Airspace Redesign Final EIS. The process began with a competitive selection of an independent EIS contractor, continued throughout preparation of a Draft EIS and Final EIS and culminated in this ROD. App. 140 Individuals from the FAA have devoted many hours to ensure compliance with NEPA and _ other environmental requirements. The Agency’s responses to the public comments on the environmental impacts of the Proposed Action are _ detailed and comprehensive. This ROD also describes the great care and attention that was paid to public environ- mental concerns, particularly noise. Accordingly, the independent and objective evaluation called for by the Council on Environmental Quality has been provided. F. Endangered Species Act, 16 U.S.C. Sections 1531-1544. Pursuant to the Endangered Species Act (ESA), the FAA contacted the Fish and Wildlife Service and local authorities to compile a list of federally and stated endangered and threatened species in the Study Area. This list is set forth in Appendix G of the EIS, in the DEIS and the FEIS, the FAA concluded that the proposed action will not have a significant impact on fish or plants because the proposed action does not require ground disturbance and does not modify critical habitat. Subsequent to that finding, the FAA agreed to con- sider the Department of Interior’s request to impose flight restrictions over piping plover, bald eagle and roseate tern nesting sites. The piping plover and bald eagle have established nests under the current air traffic situation and have demonstrated a tolerance App. 141 for such activity. There is no currently no documented nesting sites for the roseate tern. The FAA has determined that the bald eagle, a spe- cies that is no longer listed pursuant to the Endan- gered Species Act, is not affected by the selected project. The FAA has also determined that the se- lected project as compared to the no-action alterna- tive does not affect the piping plover or the roseate tern. On September 5, 2007, the FAA responded to the FWS and obtained FWS concurrence that the selected project is not likely to adversely affect these two species. G. Responsibilities of Federal Agencies to Protect Migratory Birds (Execu- tive Order 13186). Executive Order 13186, enacted to further the pur- poses of the Migratory Bird Treaty Act (MBTA), recognizes the importance of migratory birds. The selected project includes changes in aircraft routes and thus the potential for bird strikes (for migratory and non-migratory) was assessed in the EIS. The Bird Strike Impact Assessment found that various bird categories are already impacted from operations at EWR, HPN, ISP, JFK, LGA and PHL. Each of these airports has a Wildlife Hazard Management Plan and are subject to a 2003 Memorandum of Agreement with the Fish and Wildlife Service and other federal agencies to address aircraft wildlife strikes. The selected project will not increase existing App. 142 impacts to migratory birds. There are no significant impact to migratory birds from the selected Project. X. Decision and Order In the Final EIS, the FAA identified the Integrated Airspace Alternative Variation with ICC as the Pre- ferred Alternative for the NY/NJ/PHL Metropolitan Area Airspace Redesign Project. Among the alterna- tives studied, the Integrated Airspace Alternative with ICC best meets the purpose and need of the project, which is to improve the efficiency and relia- bility of the airspace structure and air traffic control system from southern Connecticut to eastern Dela- ware. Only the Integrated Airspace Alternative with ICC provides for considerable operational benefit. The Integrated Airspace Alternative with ICC is a new concept in airspace design. Currently, the air- space is a layered structure, consisting of en route and terminal airspace. Each layer includes a finite piece of airspace defined by lower and upper altitude limits and defined geographic boundaries. The Inte- grated Airspace Alternative with ICC would alter the limits of these finite pieces of airspace such that several operational benefits would occur including: ¢ A reduction in the complexity of the cur- rent air traffic system operation in New York/New Jersey/ Philadelphia, ¢ A reduction in delays and the expedi- tious arrival and departure of aircraft, ¢ Improved flexibility in routing aircraft, App. 143 ¢ A more balanced controller workload, and ¢ An increase in the FAA’s ability to meet system demands. The FAA identified mitigation measures to minimize the potentially significant noise impacts of the pre- ferred alternative, without substantially diminishing its benefits. Benefits of the selected project (the Integrated Airspace Alternative with ICC with miti- gation) include: e¢ An estimated 20% reduction in airport delay, once implementation is complete, compared to the No Action Alternative. ROD Table 2.6 e Aijr traffic congestion nationwide is ex- pected to cost $46 billion to the nation’s economy in 2010. This includes costs to airlines and passengers, loss of service to people who wish to travel, and over 200,000 lost jobs in aviation and other industries. NY/NJ/PHL airspace will handle 15-20% of all the air traffic in the nation in 2011, so the inefficiencies addressed here could yield benefits to air carriers, passengers, and local busi- nesses of $7 billion to $9 billion in 2011. * Projected reduction in fuel consumption and emissions, including carbon dioxide and other greenhouse gas emissions. Once completely implemented, it is ex- pected to reduce annual operating costs App. 144 (largely fuel consumption) by $248 mil- lion and severe weather delay costs by another $37 million. ¢ Reduced noise exposure for more than one half million compared to the No Ac- tion Alternative. Decision After careful and thorough consideration of the facts contained herein, the undersigned finds that the proposed Federal action is consistent with existing national environmental policies and objectives as set forth in Section 101(a) of the National Environmental Policies Act of 1969 (NEPA) and that it will not sig- nificantly effect the quality of the human environ- ment or otherwise include any condition requiring consultation pursuant to Section 192(2)(C) of NEPA. Having carefully considered the uviation safety and operational objectives of this action, as well as being properly advised as to the anticipated environmental impacts, under the authority delegated to me by the Administrator of the FAA, | find that the action is reasonably supported, and I, therefore, direct the NY/NJ/PHL metropolitan area airspace redesign be implemented. Implementation of the selected project will begin as soon as practicable after the ROD. Based on information from specialists in the agency, I estimate full implementation of the selected alterna- tive to take five years. App. 145 Original signed on Seniember 5, 2007. /s/ Date: John G. McCartney Acting Director, Terminal Operations Eastern Service Area Federa! Aviation Administration Right of Appeal: This decision is taken pursuant to 49 U.S.C. §§40101 et seqg., and constitutes an order of the Administrator which is subject to review by the Courts of Appeal of the United States in accordance with the provisions of 49 U.S.C. §46110. Any party seeking to stay the implementation of this ROD must file an application with the FAA prior to seeking judicial relief, as provided in Rule 18(a), Federal Rules of Appellate Procedure. I have reviewed the changes contained in the Errata to the Record of Decision dated September 14, 2007. The changes contained in the Errata are not substan- tive and have been incorporated within this corrected version of the ROD. The Corrected ROD does not alter the decision of September 5, 2007 in any way and is issued merely for case of reference. /s) John McCartney __ Date: 10/4/07 John G. McCartney Acting Director, Terminal Operations Eastern Service Area Federal Aviation Administration App. 146 United States Court of Appeals For THE DISTRICT OF COLUMBIA CIRCUIT No. 07-1363 September Term 2008 County of Rockland, FAA-ROD09/05/07 New York, Filed On: Petitioner August 19, 2009 v. Federal Aviation Administration, Respondent Consolidated with 07-1437, 07-1493, 07-1494, 07-1495, 07-1496, 07-1497, 07-1498, 07-1499, 08-1105, 08-1106, 08-1107 BEFORE: Sentelle, Chief Judge, and Ginsburg, Circuit Judge, and Randolph, Senior Circuit Judge ORDER Upon consideration of the petitions for panel rehearing filed by petitioners County of Rockland, New York, et al., County of Delaware, Pennsylvania, et al., and City of Elizabeth, New Jersey, et al., it is ORDERED that the petitions be denied. App. 147 Per Curiam FOR THE COURT: Mark J. Langer, Clerk By: /s/ Michael C. McGrail Deputy Clerk App. 148 United States Court of Appeals For THE DISTRICT OF COLUMBIA CIRCUIT No. 07-1363 September Term 2008 County of Rockland, FAA-ROD09/05/07 New York, Filed On: Petitioner August 19, 2009 0 Federal Aviation Administration, Respondent Consolidated with 07-1437, 07-1493, 07-1494, 07-1495, 07-1496, 07-1497, 07-1498, 07-1499, 08-1105, 08-1106, 08-1107 BEFORE: Sentelle, Chief Judge, and Gins- burg, Henderson, Rogers, Tatel, Garland, Brown, Griffith, and Kavanaugh, Circuit Judges, and Randolph, Senior Circuit Judge ORDER Upon consideration of the petitions for rehearing en banc filed by petitioners County of Rockland, New York, et al., County of Delaware, Pennsylvania, et ai., and City of Elizabeth, New Jersey, et al., and the App. 149 absence of a request by any member of the court for a vote, itis ORDERED that the petitions be denied. Per Curiam FOR THE COURT: Mark J. Langer, Clerk By: /s/ Michael C. McGrail Deputy Clerk App. 150 TITLE 42. THE PUBLIC HEALTH AND WELFARE CHAPTER 55. NATIONAL ENVIRONMENTAL POLICY POLICIES AND GOALS 42 USCS § 4332 § 4332. Cooperation of agencies; reports; availability of information; recommendations; international and national coordination of efforts The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be inter- preted and administered in accordance with the policies set forth in this Act [42 USCS §§ 4321 et seq.j, and (2) all agencies of the Federal Government shall — (A) utilize a systematic, interdisciplinary ap- proach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision-making which may have an impact on man’s environment; (B) identify and develop methods and proce- dures, in consultation with the Council on Environ- mental Quality established by subchapter II of this Act [42 USCS §§ 4341 et seq.], which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations; (C) include in every recommendation or report on proposals for legislation and other major Federal App. 151 actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on — (i) the environmental impact of the pro- posed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be imple- mented, (iii) alternatives to the proposed action, (iv) the relationship between local short- term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable com- mitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of title 5, United States Code, and shall accompany the _ proposal through the existing agency review processes; App. 152 (D) Any detailed statement required under sub- paragraph (C) after January 1, 1970, for any major Federal action funded under a program of grants to States shall not be deemed to be legally insufficient solely by reason of having been prepared by a State agency or official, if: (i) the State agency or official has statewide jurisdiction and has the responsibility for such action, (ii) the responsible Federal official fur- nishes guidance and participates in such preparation, (iii) the responsible Federal official inde- pendently evaluates such statement prior to its approval and adoption, and (iv) after January 1, 1976, the responsible Federal official provides early notification to, and solicits the views of, any other State or any Federal land management entity of any action or any alter- native thereto which may have significant impacts upon such State or affected Federal land manage- ment entity and, if there is any disagreement on such impacts, prepares a written assessment of such im- pacts and views for incorporation into such detailed statement. The procedures in this subparagraph shall not relieve the Federal official of his responsibilities for the scope, objectivity, and content of the entire state- ment or of any other responsibility under this Act [42 USCS §§ 4321 et seq.]; and further, this subparagraph does not affect the legal sufficiency of statements App. 153 prepared by State agencies with less than statewide jurisdiction.[;] (E) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts con- cerning alternative uses of available resources; (F) recognize the worldwide and longrange character of environmental problems and, where con- sistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind’s world environment; (G) make available to States, counties, munici- palities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment; (H) initiate and utilize ecological information in the planning and development of resource-oriented projects; and (I) assist the Council on Environmental Quality established by title IT of this Act [42 USCS §§ 4341 et seq.|. App. 154 TITLE 49. TRANSPORTATION SUBTITLE I. DEPARTMENT OF TRANSPORTATION CHAPTER 3. GENERAL DUTIES AND POWERS SUBCHAPTER I. DUTIES OF THE SECRETARY OF TRANSPORTATION § 303. Policy on lands, wildlife and waterfowl refuges, and historic sites (a) Itis the policy of the United States Government that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfow! refuges, and historic sites. (b) The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States, in developing transportation plans and programs that include measures to main- tain or enhance the natural beauty of lands crossed by transportation activities or facilities. (c) Approval of programs and projects. Subject to subsection (d), the Secretary may approve a transpor- tation program or project (other than any project for a park road or parkway under section 204 of title 23) requiring the use of publicly owned land of a public park, recreation area, or wildlife and waterfow] refuge of national, State, or local significance, or land of an historic site of national, State, or local signifi- cance (as determined by the Federal, State, or local officials having jurisdiction over the park, area, refuge, or site) only if — App. 155 (1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use. (d) De minimis impacts. (1) Requirements. (A) Requirements for historic sites. The requirements of this section shall be considered to be satisfied with respect to an area described in para- graph (2) if the Secretary determines, in accordance with this subsection, that a transportation program or project will have a de minimis impact on the area. (B) Requirements for parks, recreation areas, and wildlife or waterfowl refuges. The require- ments of subsection (c)(1) shall be considered to be satisfied with respect to an area described in para- graph (3) if the Secretary devermines, in accordance with this subsection, that a transportation program or project will have a de minimis impact on the area. The requirements of subsection (c)(2) with respect to an area described in paragraph (3) shall not include an alternatives analysis. (C) Criteria. In making any determination under this subsection, the Secretary shall consider to be part of a transportation program or project any avoidance, minimization, mitigation, or enhancement measures that are required to be implemented as a App. 156 condition of approval of the transportation program or project. (2) Historic sites. With respect to historic sites, the Secretary may make a finding of de minimis impact only if — (A) the Secretary has determined, in accor- dance with the consultation process required under section 106 of the National Historic Preservation Act (16 U.S.C. 470f), that — (i) the transportation program or proj- ect will have no adverse effect on the historic site; or (ii) there will be no historic properties affected by the transportation program or project; (B) the finding of the Secretary has re- ceived written concurrence from the applicable State historic preservation officer or tribal historic pres- ervation officer (and from the Advisory Council on Historic Preservation if the Council is participating in the consultation process); and (C) the finding of the Secretary has been developed in consultation with parties consulting as part of the process referred to in subparagraph (A). (3) Parks, recreation areas, and wildlife or waterfowl refuges. With respect to parks, recreation areas, or wildlife or waterfowl refuges, the Secretary may make a finding of de minimis impact only if — (A) the Secretary has determined, after public notice and opportunity for public review and App. 157 comment, that the transportation program or project will not adversely affect the activities, features, and attributes of the park, recreation area, or wildlife or waterfowl refuge eligible for protection under this section; and (B) the finding of the Secretary has re- ceived concurrence from the officials with jurisdiction over the park, recreation area, or wildlife or water- fowl refuge. TITLE 49. TRANSPORTATION SUBTITLE VII. AVIATION PROGRAMS PART A. AIR COMMERCE AND SAFETY SUBPART IV. ENFORCEMENT AND PENALTIES CHAPTER 461. INVESTIGATIONS AND PROCEEDINGS § 46110. Judicial review (a) Filing and venue. Except for an order related to a foreign air carrier subject to disapproval by the President under section 41307 or 41509(f) of this title [49 USCS § 41307 or 41509(f)], a person disclosing a substantial interest in an order issued by the Secretary of Transportation (or the Under Secretary of Transportation for Security with respect to security duties and powers designated to be carried out by the Under Secretary or the Administrator of the Federal Aviation Administration with respect to aviation duties and powers designated to be carried out by the Administrator) in whole or in part under this part [49 App. 158 USCS §§ 40101 et seq.], part B [49 USCS §§ 47101 et seq.], or subsection (1) or (s) of section 114 [49 USCS § 114] may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business. The petition must be filed not later than 60 days after the order is issued. The court may allow the petition to be filed after the 60th day only if there are reasonable grounds for not filing by the 60th day. (b) Judicial procedures. When a petition is filed under subsection (a) of this section, the clerk of the court immediately shall send a copy of the petition to the Secretary, Under Secretary, or Administrator, as appropriate. The Secretary, Under Secretary, or Administrator shall file with the court a record of any proceeding in which the order was issued, as provided in section 2112 of title 28. (c) Authority of court. When the petition is sent to the Secretary, Under Secretary, or Administrator, the court has exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order and may order the Secretary, Under Secretary, or Adminis- trator to conduct further proceedings. After reason- able notice to the Secretary, Under Secretary, or Administrator, the court may grant interim relief by staying the order or taking other appropriate action when good cause for its action exists. Findings of fact by the Secretary, Under Secretary, or Administrator, if supported by substantial evidence, are conclusive. App. 159 (d) Requirement for prior objection. In reviewing an order under this section, the court may consider an objection to an order of the Secretary, Under Secretary, or Administrator only if the objection was made in the proceeding conducted by the Secretary, Under Secretary, or Administrator or if there was a reasonable ground for not making the objection in the proceeding. (e) Supreme Court review. — A decision by a court under this section may be reviewed only by the Supreme Court under section 1254 of title 28. TITLE 40 — PROTECTION OF ENVIRONMENT CHAPTER V ~- COUNCIL ON ENVIRONMENTAL QUALITY PART 1506 —- OTHER REQUIREMENTS OF NEPA § 1506.6 Public involvement. Agencies shall: (a) Make diligent efforts to involve the public in preparing and implementing their NEPA procedures. (b) Provide public notice of NEPA-related hearings, public meetings, and the availability of environmen- tal documents so as to inform those persons and agencies who may be interested or affected. (1) In all cases the agency shall mail notice to those who have requested it on an individual action. (2) In the case of an action with effects of national concern notice shall include publication in the Federal App. 160 Register and notice by mail to national organizations reasonably expected to be interested in the matter and may include listing in the 102 Monitor. An agency engaged in rulemaking may provide notice by mail to national organizations who have requested that notice regularly be provided. Agencies shall maintain a list of such organizations. (3) In the case of an action with effects primarily of local concern the notice may include: (i) Notice to State and areawide clearinghouses pursuant to OMB Circular A-95 (Revised). (ii) Notice to Indian tribes when effects may occur on reservations. (iii) Following the affected State’s public notice procedures for comparable actions. (iv) Publication in local newspapers (in papers of general circulation rather than legal papers). (v) Notice through other local media. (vi) Notice to potentially interested community organizations including small business associations. (vii) Publication in newsletters that may be expect- ed to reach potentially interested persons. (viii) Direct mailing to owners and occupants of nearby or affected property. (ix) Posting of notice on and off site in the area where the action is to be located. App. 161 (c) Hold or sponsor public hearings or public meet- ings whenever appropriate or in accordance with statutory requirements applicable to the agency. Criteria shall include whether there is: (1) Substantial environmental controversy concern- ing the proposed action or substantial interest in holding the hearing. (2) A request for a hearing by another agency with jurisdiction over the action supported by reasons why a hearing will be helpful. If a draft environmental impact statement is to be considered at a public hearing, the agency should make the statement available to the public at least 15 days in advance (unless the purpose of the hearing is to provide infor- mation for the draft environmental impact state- ment). (d) Solicit appropriate information from the public. (e) Explain in its procedures where interested per- sons can get information or status reports on environ- mental impact statements and other elements of the NEPA process. (f{) Make environmental impact statements, the comments received, and any underlying documents available to the public pursuant to the provisions of the Freedom of Information Act (5 U.S.C. 552), without regard to the exclusion for interagency memoranda where such memoranda transmit com- ments of Federal agencies on the environmental impact of the proposed action. Materials to be made App. 162 available to the public shall be provided to the public without charge to the extent practicable, or at a fee which is not more than the actual costs of repro- ducing copies required to be sent to other Federal agencies, including the Council. App. 163 Appendix B - Additional Analysis In Section 5.3.5.1 of the FEIS the FAA committed to conduct further evaluation, in consultation with appropriate federal and state officials, to determine whether predicted noise increases or visual changes over affected areas of the 4(f) resources listed in Table B.1 would result in a constructive use. FAA further indicated that it would include the results of this evaluation and any necessary additional 4(f) analysis and determination in this Record of Decision. The additional analysis is provided below. Table B.i 4(f) Properties Subject to Additional Noise/Visual Evaluation 4(f) Property Noise |} Visual Appalachian National Scenic Trail, 4 x Delaware and Lehigh National ».4 Heritage Corridor 7 Delaware Water Gap National X Recreation Area Home of Franklin D. Roosevelt xX National Historic Site and the Vanderbilt Mansion Nationa! Historic Site Hopewell Furnace National Historic X Site, _ Upper Delaware Scenic & X Recreational River Weir Farm National Historic Site, Wallkill River National Wildlife Refuge, 241 PS App. 164 Catskill Park (Big Indian — Beaverkill X Range Wilderness Area, Slide Moun- tain Wilderness Area, Westkill Mountain Wilderness Area). Additional Noise Evaluation If any point within one of the subject Section 4(f) properties would experience a change in noise level as a result of the selected Project greater than 3.0 DNL, the FAA conducted further evaluation of the property in consultation with the NPS and New York State Department of Environmental Conservation. Additional 409 Resources To Which Part 150 Guidelines Apply. Upon additional review, the FAA has determined that a quiet setting does not appear to be a generally recognized feature or attribute of the significance for several of the sites that were identified for further study in the FEIS, These sites are the Hopewell Furnace National Historic Site, Upper Delaware Scenic and Recreational River, and the Delaware and Lehigh Canal National Heritage Corridor. Hopewell Furnace National Historic Site. The purpose of the Hopewell Furnace National Historic Site is to preserve and interpret iron plantation life and operations, and to enhance public understanding of the American evolution of American iron-making and its impact on the region and the nation. Based on this purpose and the characteristics of the site, the FAA App. 165 has concluded that for the Hopewell Furnace National Historic Site a quiet setting is not a generally recog- nized feature or attribute of this site’s significance and therefore the thresholds listed in the Part 150 guide- lines apply. The noise exposure levels resulting from the selected project at all the points within the site are 40.0 DNL, or less. This is well below the Part 150 noise exposure level compatibility guidelines and 5 decibels lower than the target level for soundproofing the interior of homes. Additionally, since the Hopewell Furnace National Historic Site is a historic property, the finding under Section 106 may be used to determine whether there would be a constructive use. The Hopewell Furnace National Historic Site is outside of the area of potential effect (APE). The boundaries of the APE were determined in consultation with the Pennsylvania SHPO. Therefore, the Hopewell Furnace National Historic Site would not be affected by the selected project. The FAA has concluded that the selected project would not result in a constructive use of the Hopewell Furnace National Historic Site because the noise exposure levels would be well below the Part 150 compatibility guidelines and the site is located outside of the APE. Upper Delaware Scenic and Recreational River. The Upper Delaware Scenic and Recreational River’s Final River Management Plan (MP) does not discuss noise levels or aircraft overflight. Hunting is per mitted on much of the publicly owned land along the Upper Delaware. Additionally, motorboats are allowed on the River. According to the MP residential use, App. 166 agricultural use and hunting and fishing cabins are considered compatible for all of the river segments. Finally, one of the planning goals of the MP is to “Provide for the continued public use and enjoyment of a full range of recreational activities, as is compatible with the other goals.” A quiet setting is not a generally recognized feature or attribute of this site’s significance, rather this site appears to be devoted to traditional recreational activities, and pursuant to Order 1050.1E, the Part 150 guidelines should be used to evaluate whether there is a constructive use. The noise exposure levels resulting from the selected project at all the points within the site are 35.0 DNL or less — far below Part 150 compatibility guidelines. Therefore, the change in noise resulting from the selected project would not be a constructive use of Upper Delaware Scenic and Recreational River. Delaware and Lehigh Canal National Heritage Cor- ridor The Delaware and Lehigh Canal National Heritage Corridor is more than 150 miles in length and encompasses approximately 100 municipalities. The Management Action Plan for the Delaware and Lehigh Canal National Heritage Corridor and State Heritage Park establishes a framework for steward- ship in order to preserve significant historic sites, conserve the natural and cultural environments, as well as provide opportunities for capitalizing on heritage development. The Corridor follows the historic routes of the Lehigh and Susquehanna Railroad, the Lehigh Navigation System, and the Delaware Canal. According to the Management Action Plan, ‘The Corridor dramatically illustrates both the first steps App. 167 and the milestones in the social development of young America, the anthracite coal mining era, the Industrial Revolution, the development of systematic canal and rail transportation, and the evolution of natural conservation.” Recreational activities include driving tours, tourism, bicycling, canal boat mdes, canoeing, white water rafting, fishing, hiking, hunting, snow- mobiling and cross country skiing. The Management Action Plan states, “In addition to the value of the natural resources and open lands of the Corridor for environmental health and habitat for plant and animal species, these resources have superlative recreation value. Natural and recreational resources cover large areas of the Corridor, and accommodate high user demand. At the center of the most densely populated area of the United States, the Corridor provides expansive open spaces and unique recreational to millions of people — opportunities that are nationally significant. The Management Action Plan also discusses promoting appropriate economic develop- ment, “A given in promoting tourism and economic development in the Corridor is the concept of ‘synergy’: when the Corridor’s substantial recrea- tional resources are better developed and more, accessible, when its fascinating history and cultural traditions are more visible through improved inter- pretation, and when the physical and intellectual linkages among its attractions are better developed, the greater potential for sustained economic growth and regeneration. Thus, tourism and economic develop- ment become integral inseparable pieces of the whole of the Corridor effort.” Given that many of the recreational activities are not conducive to quiet, that App. 168 the Management Action Plan includes promoting tourism and economic development, and that much of the historic context is linked to industrial develop- ment it appears that a quiet setting is not a generally recognized feature or attribute of this park’s significance. Therefore, pursuant to Order 1050.1E, the Part 150 guidelines should be used to evaluate whether there is a constructive use. The range of noise exposure levels resulting from the selected project at the locations shown on Figures 5.24, 5.25, and 5.26 is 25.3 DNL to 57.3 DNL. This range of noise exposure levels is below Part 150 compatibility guidelines and nearly the same of the ranges of noise exposure levels resulting from the 2006 No Action Airspace Alternative and the 2011 Future No Action Airspace Alternative.. Additionally, since the Delaware and Lehigh Canal National Heritage Corridor is a historic property, the finding under Section 106 may be used to determine whether there would be a constructive use. The Delaware and Lehigh Canal National Heritage Corridor is outside of the area of potential effect (APE). The boundaries of the APE were determined in consultation with the Pennsylvania and New Jersey SHPOs. Therefore, the Delaware and Lehigh Canal National Heritage Corridor would not be affected by the selected project. The FAA has concluded that the selected project would not result in a constructive use of the Delaware and Lehigh Canal National Heritage Corridor because the noise exposure levels would be below the Part 150 App. 169 compatibility guidelines and the Corridor is outside the APE. Lands for which a quiet setting is an attribute of the land. With respect to the remaining Section 4(f) sites for which a quiet setting is an attribute of the land, a review of the data showed that with the selected project, the aircraft noise exposure levels at the points evaluated would remain within a range of 44.0 DNL at the highest to 15.5 DNL at the lowest. This range in noise level is low to extremely low. A few illustrations are of value to provide context regarding levels of noise. For example, FHWA has determined that a constructive use would not occur for “Lands on which serenity and quiet are of extraordinary significance and serve an important public need and where the preservation of those qualities is essential if the area is to continue to serve its intended purpose.” when the project noise does not exceed 57Leq(h).' This can be conservatively equated to 43.2 DNL,’ In other ' 23 CFR §771.135and Table 1 of 23 C.F.R. §772. * The criteria are based on the l-hour Leg (Leq(h)) metric for peak hour traffic. The DNL metric is a 24-hour cumulative noise metric with an added 10 dB penalty for events that occur during nighttime hours. Translating the 1-hr Leq threshold to a 24-hour Leq can be done conservatively (finding the lowest 24-hr threshold level) by assuming that the threshold value (Leq(h) 57 dB) would occur of only one hour during the day and then no noise for the remaining 23 hours of the day. This would result in a 24 hour Leq of 43.2dB. The comparison of DNL values to 24-hour Leq (Continued on following page) App. 170 words, any location that has an aircraft DNL value of 43.2 DNL or less could not possibly have a peak hour Leg(h) level of greater than 57 dB. For an additional point of context, FAA sound insu- lation guidelines are based on the goal of reducing the interior noise level to 45 DNL for residences. Lastly, the EPA Levels Document reported that an annual outdoor noise exposure level of 55 DNL (with a 5 DNL margin of safety) is sufficient to protect public health and welfare from the effects of environmental noise. Table B.2 compares th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1264%3A1. Public record. Not legal advice.