L O N G B E A C H, C A

Dean McMath Regional Environmental Programs Manager FAA – Southwest Region NEPA Essentials Selected Special Purpose Laws L O N G B E A C H, C A

Selected Special Purpose Laws If NEPA is the umbrella, then Special purpose laws are the supports. If a special purpose law is missing, then The umbrella fails and Your project is all wet!

Selected Special Purpose Laws Let’s Stay Dry!

Selected Special Purpose Laws Air Quality Section 106 Tribal Consultation Wetlands Floodplains

Air Quality Requirements driven by –the Clean Air Act and –40 CFR, Parts 9, 50-53, 60, 61, 66, 67, 81, 82, & 93. Two (2) initial considerations for impact assessment –Is the project in a NAAQS attainment area or –In a NAAQS nonattainment or maintenance area.

Air Quality What is NAAQS? Standards that are safe for human health, public welfare, and the environment National Ambient Air Quality Standards –carbon monoxide (CO) –lead (Pb) –nitrogen dioxide (NO 2 ) –ozone (O 3 ) –particulate matter (PM) –sulfur dioxide (SO 2 )

Air Quality What is an Attainment Area? –A geographical area where the levels of all criteria air pollutants meet the NAAQS. What is a Nonattainment Area? –A geographical area where the levels of one or more of the criteria air pollutants do not meet the NAAQS. What is a Maintenance Area? –A previously designated nonattainment area that has been re- designated because air pollution levels have improved above NAAQS levels. This re-designation could last as long as 20 years.

Air Quality Considerations for projects in Attainment Areas –Is the project causing an increase in operations at the airport? –Are annual operations above 180,000 for general aviation and air taxi operations? –Are annual enplanements over 1.3 million? –A combination of the above? See Air Quality Handbook for formula. –Is the project causing an increase in surface traffic coming to the airport and/or increase of congestion at off-airport highway intersections?

Air Quality Considerations for projects in Non-attainment and Maintenance Areas –General Conformity Questions. Is the project exempted from General Conformity? Is the project on the Presumed to Conform List? Is the project included in the State Implementation Plan? If none of the above apply, an emissions inventory needs to be done. –Direct and indirect emissions of project versus –Emissions of no action. –Models – EDMS, MOBILE 6 and NONROAD2008a. Does the project exceed de minimus thresholds? –If no, document –If yes…

Air Quality You Must Follow The General Conformity Process. Section 176 of the CAA states: “No department, agency, or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to an approved State Implementation Plan (SIP).”

Air Quality A SIP is a state’s plan to EPA to bring a nonattainment area back into attainment status within legally required timeframes. –The SIP will usually address specific pollution sources (industrial activities, surface transportation sources, commercial activities, etc…). –Pollution “budgets” are assigned to each of those sources, usually reducing over time, recognizing growth in the area. –Airport operations are often included (but also often underestimated) in the SIP. –Future airport projects are rarely included in the SIP.

Air Quality General Conformity Process –Compile analysis into a Draft General Conformity Determination (DGCD). –A public advertisement announcing DGCD must be made. –The DGCD must be made available for public review for 30 days and provided opportunity to submit written comments. –FAA must respond to all comments received. –FAA must issue a final GCD to the public with another advertisement prior to project approval. Combining with NEPA process is preferable.

Section 106 Requirements driven by –the National Historic Preservation Act and –36 CFR, Part 800. Words of advice –Project = Undertaking. –Don’t confuse NEPA and NHPA. –NEPA does not trump NHPA. –There can never be too early or too much consultation. –Combine the NEPA and Section 106 processes whenever possible.

Section 106 May the undertaking affect properties on or eligible for inclusion on the National Register of Historic Places (NRHP)? If so, the FAA must determine if the undertaking –does not have the potential to affect protected historic properties, –would not adversely affect NRHP-listed or eligible properties, or –would adversely affect NRHP-listed or eligible properties.

Section 106 –What typical undertakings may affect properties on or eligible for inclusion on the NRHP? building or expanding terminal and hangar facilities, runways and taxiways, installing navaids, building or moving access roadways, remote parking facilities, rental car lots, or other activities requiring construction.

Section 106 –In consultation with the State Historic Preservation Officer or the appropriate Tribal Historic Preservation Officer, identify an Area of Potential Effect (APE). –The APE is the geographic area or areas in which an undertaking may directly or indirectly affect the character of historic resources. –Knowledge of historic properties within the APE is not necessary at this point.

Section 106 –Identify any NRHP-listed or eligible properties located within the APE. –Research of documents and consultation with SHPO, THPO, other traditional communities and local historic groups will help to identify potentially eligible properties. –FAA, through consultation with the SHPO or THPO to determine property eligibility using NRHP eligibility criteria found at 36 CFR Section 60.4.

Section 106 –If NHRP-listed or eligible properties are located within the APE, the FAA, in consultation with the SHPO will determine if properties are affected by the undertaking. –An effect would occur when an undertaking would change the characteristics qualifying a historic resource for inclusion in the NRHP. –Adverse effects are determined using criteria found in 36 CFR Section

Section 106 –No Properties Affected Determination Determination made after consultation with SHPO or THPO concludes no impacts to NRHP-listed or eligible properties. SHPO or THPO and any other consulting parties are sent notice of determination. SHPO or THPO has 30 days to concur or object. If SHPO or THPO concurs or does not respond, process is complete. If SHPO or THPO objects, FAA may further consult to resolve disagreement or send finding to ACHP for 30 day review and comment period. If ACHP concurs with FAA or does not respond, process is complete.

Section 106 –No Properties Affected Determination (continued) If ACHP objects, FAA and sponsor may alter undertaking to address ACHP’s concerns and complete the process, or FAA can proceed with the project after sending ACHP, SHPO or THPO and any consulting parties documentation of its final decision, including how FAA considered the ACHP’s opinion.

Section 106 –No Adverse Effect Determination Determination may be made when NRHP-listed or eligible properties are located in the APE. Determination made after consultation with SHPO or THPO and other consulting parties on the application of the adverse effect criteria found in 36 CFR concludes the undertaking would not trigger any of the criterion. SHPO or THPO and any other consulting parties are sent notice of determination. They all have 30 days to agree or object. If all agree or no one responds, process is complete. If someone objects, FAA may further consult to resolve disagreement or ask the ACHP for a 15 day review period. If ACHP concurs with FAA or does not respond, process is complete.

Section 106 –No Adverse Effect Determination (continued) If ACHP issues an opinion, FAA must consider the opinion and determine if it will include the opinion in the undertaking. FAA can proceed with the project after sending ACHP, SHPO or THPO and any consulting parties documentation of its final decision, including how FAA considered the ACHP’s opinion.

Section 106 –Adverse Effect Determination Determination may be made when NRHP-listed or eligible properties are located in the APE. Determination made after consultation with SHPO or THPO and other consulting parties on the application of the adverse effect criteria found in 36 CFR concludes the undertaking will trigger any of the criterion. Consultation will occur to resolve adverse effects Resolution of adverse effects will be documented in a Memorandum of Agreement (MOA). The MOA is distributed to all signing parties, including ACHP if they were not a signatory, completing the process

Section 106 –Adverse Effect Determination (continued) If parties fail to resolve adverse effects, consultation may be terminated by the FAA, SHPO or THPO, or the ACHP. If SHPO or THPO terminate, the process can continue with ACHP acting in their stead. If FAA terminates, ACHP shall be requested to comment and notify all other consulting parties of the request. –ACHP has 45 days to comment to DOT. –DOT shall take into account ACHP comments and document a final decision, making the record available for public inspection. If ACHP terminates, the comment and documentation process described above applies.

Notes On Other Special Purpose Laws Tribal Consultation –You are dealing with a sovereign nation. –Trust is a constant issue. –Early and often contact is never too much. –The Highest ranking official available should attend at least the first meeting. –Western European thinking is often not translatable to their culture/values. –Federal timelines and schedules are often irrelevant. –Combine Tribal consultation and Section 106 whenever possible.

Notes On Other Special Purpose Laws Wetlands –Jurisdictional or non-jurisdictional is irrelevant to the impact and Federal responsibilities. –Avoid, minimize, THEN mitigate. –Public involvement is required by E.O –Written finding is required by E.O and DOT Order A –Combine wetlands process with NEPA whenever possible.

Notes On Other Special Purpose Laws (continued) –Floodplains –Avoid, minimize, THEN mitigate. –Public involvement is required by E.O and DOT Order –Public notice to authorize an action in a base floodplain is required by DOT Order –Combine floodplains process with NEPA whenever possible