Understanding Airspace, Objects, and Their Effects on Airports (2010)

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This chapter describes the who, what, where, when, and how of airspace protection. Specifi- cally, it outlines the mechanisms and processes, and the roles and responsibilities of the various parties to the process. Please refer to Chapter 4 for recommendations and best practices related to these processes. Roles and Responsibilities of the Authority Having Jurisdiction to Issue Construction Permits The evaluation of any proposed object that may affect navigable airspace, particularly within close proximity to an airport, should begin with the staff on the local planning agencies and per- mitting authorities recognizing that such an evaluation may be necessary. At a minimum, any proposed object that would exceed the heights in the notification criteria found in FAR Part 77 must be formally evaluated by the FAA. Additionally, proposed objects in the approach-departure corridors or meeting other alignment and/or height criteria as requested by the FAA or the local airport should be evaluated. The local authority having jurisdiction has the responsibility of working in partnership with the FAA and the local airport management to protect airspace vital for the airport’s operations. This protection is achieved by incorporating airspace protection considerations in height zoning regulations and the construction permit process, whether through direct height limits or through indirect means such as requiring a favorable determination from the FAA. Roles and Responsibilities of the Construction Proponent The construction proponent (a generic term for owner, real estate developer, or other indi- vidual or partnership) is required to file notice with the FAA when the height of the proposed construction would exceed the heights specified in the “notification requirements” in FAR Part 77.13. Because the FAA aeronautical review process can be lengthy and cannot be expedited through paying premium fees (it is free of charge), notice should be filed as early as possible in the planning stages of the project, when the location of the structure and its desired maximum height are established. The construction proponent is responsible for providing (1) complete and accurate data on the notification form; (2) timely responses to any questions from the FAA that may arise during 25 C H A P T E R 3 Mechanisms and Processes of Airspace Protection A good starting point for assessing whether a proposed structure ought to be checked for air- space compatibility issues is when it exceeds any of the heights specified in the “Notification Requirements” in FAR Part 77.13. File notice with the FAA as early as pos- sible in the project planning process, because the FAA aeronautical study process can be lengthy.

the aeronautical review process; and (3) when the structure is complete, notification of actual construction. Although perhaps not required by laws or regulations, it may be advantageous for the con- struction proponent to notify the local airport(s) that may be affected by the proposed construc- tion, including smaller general aviation airports that may be affected as well. An informal meeting to discuss early ideas and alternatives can often build trust between the parties and help avoid or mitigate potential conflicts before spending significant time and effort in the planning and design of construction that may be incompatible with airspace protection standards. The FAA’s OE/AAA Process As set forth in Title 49 of the U.S. Code of Federal Regulations, §40103, “The United States Government has exclusive sovereignty of airspace of the United States.” In protecting and administering the use of U.S. airspace, The Administrator [of the FAA] shall prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitudes) for— (A) navigating, protecting, and identifying aircraft; (B) protecting individuals and property on the ground; (C) using the navigable airspace efficiently; and (D) preventing collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects. The FAA carries out these responsibilities through a variety of means. The primary means by which the FAA analyzes proposed construction or alteration (“protecting individuals and prop- erty on the ground”) that may affect navigable airspace is through the OE/AAA process. The following paragraphs highlight the major steps of the OE/AAA process. A more detailed description of the multiple steps, choices, and potential outcomes can be found in Appendix C, The FAA’s Obstruction Evaluation/Airport Airspace Analysis Process. The formal airspace evaluation process begins with the submission of FAA Form 7460-1, Notice of Proposed Construction or Alteration. This form may be submitted on paper via U.S. mail, or online at http://oeaaa.faa.gov. Filing online expedites processing. Any individual may create a user account on this website, which can be used to file notices and track the progress of pending cases and also to submit comments on pending cases. The OE/AAA website is a user interactive system that not only allows for the electronic sub- mittal of Form 7460-1 information, it also provides background and context information that various types of users may find useful regarding the processes and regulations applicable to aero- nautical studies. The website also allows subscribers to specify certain geographic boundaries within which they would be automatically notified when OE/AAA cases are circularized under Public Notice and issued final determinations. This feature is of particular utility to airport management, so that they may become aware of proposals in the vicinity of their airport that may be of concern. Figure 3.1 illustrates the major steps that occur following the submission of a Form 7460-1, resulting eventually in a final determination. The following is a brief summary of the major steps in the FAA’s OE/AAA process. Numbered steps refer to Figure 3.1. (1) Any proponent planning on any new construction or alteration that might affect naviga- ble airspace, as defined in FAR Part 77.13, must file an FAA Form 7460-1, Notice of Proposed Construction or Alteration. 26 Understanding Airspace, Objects, and Their Effects on Airports Consider informally notifying the local airport, who can be a good source of information, and a potential ally in the FAA review process. The OE/AAA website allows anyone to create a user account, to file notices and receive automatic updates. For good background information, review the documents in the “Information Resources” links.

Mechanisms and Processes of Airspace Protection 27 Sources: FAR Part 77, FAA Order 7400-2 Prepared by: Jacobs Consultancy Figure 3.1. Major steps in the FAA’s Obstruction Evaluation/Airport Airspace Analysis (OE/AAA) Process.

(2) When the Form 7460-1 has been filed, the FAA acknowledges receipt, assigns an aeronau- tical study number (ASN), and conducts an initial analysis to determine whether the proposal would exceed any of the five types of obstruction criteria, as defined in FAR Part 77.23. (3A) If the proposal would not exceed any of the five types of obstruction criteria, including basic heights, effects to instrument or en route procedures, or imaginary surfaces, the FAA issues a Determination of No Hazard (DNH) with Does Not Exceed (DNE). This type of DNH takes the shortest amount of time to obtain. (3B) If the proposal would exceed obstruction criteria, a Notice of Presumed Hazard (NPH) is issued, and the proponent is requested to lower the height of the proposed construction or alteration to the height not exceeding obstruction criteria. (4A) If the proponent agrees to lower the height of the proposed construction or alteration to the height not exceeding obstruction criteria, the FAA routinely issues DNH with DNE. This type of DNH takes somewhat longer to obtain. (4B) If the proponent does not agree to lower the height of the proposed construction or alteration to the height not exceeding obstruction criteria, the proponent requests the FAA to perform further aeronautical study in order to assess whether the proposal would consti- tute a hazard to air navigation. FAA Order 7400.2, Procedures for Handling Airspace Matters, articulates the primary methods for conducting aeronautical studies to ensure the safety of air navigation and the efficient use of the navigable airspace by aircraft. Multiple lines of business within the FAA (and the U.S. military, if applicable) evaluate the proposal against multiple types of criteria protecting specific operations at and near the airport(s) that may be affected. These criteria routinely include instrument flight procedures (TERPS and related criteria), visual flight procedures, navigational aids and radar, control tower line-of-sight, and air traffic control procedures. If the FAA deems the proposal may be controversial, complex, or otherwise require addi- tional outside input, the proposal may be circularized under Public Notice, whereby stake- holders may comment on the potential aeronautical effects. This is the main opportunity for airport management and other aviation stakeholders to provide input. Comments submitted under Public Notice must be of a significant aeronautical nature in order to be considered by the FAA. A “hazard to air navigation” is indicated if the FAA concludes that the proposal would cause a “substantial adverse effect” to a “significant volume of aeronautical operations.” FAA Order 7400.2 defines the criteria for determining “substantial adverse affect” and “significant volume of aeronautical operations.” Typical triggers of hazard status include the following: ✈ Height: the primary focus of this research—the object would be an obstacle that would affect published instrument procedures (TERPS and related criteria), and/or visual flight proce- dures, and/or runway end siting surfaces. ✈ Electromagnetic interference: the object, due to its size, position, material composition, or electromagnetic emissions, would block or distort electromagnetic signals to or from critical navigation aids, satellites, radar, or aircraft. ✈ Visual impediments: the object would block or otherwise interfere with FAA control tower line of sight, or would cause pilot or controller distraction due to glare, smoke, dazzling lights, sun reflection, or other factors. ✈ Wildlife attractants: the object—or, more commonly, use—would attract birds or other wildlife that could jeopardize aircraft operations. The most common example is a garbage dump that would likely attract a large number of birds. 28 Understanding Airspace, Objects, and Their Effects on Airports Because of limited FAA staff resources and the complexities involved with aero- nautical study, spe- cific timelines cannot be guaranteed in the OE/AAA process. The construction proponent can help expedite the process by filing online, pro- viding complete and accurate data, responding to FAA in a timely manner, and agreeing to lower the height of the proposal if it is likely to be deter- mined to be a haz- ard to air navigation.

(5A) At the conclusion of further aeronautical study, if the FAA determines that the original proposal would not constitute a hazard to air navigation, the FAA issues a DNH with obstruc- tion marking and lighting requirements. This type of DNH takes longer to obtain, due to coor- dination with multiple reviewers. (5B) If the FAA determines that the original proposal would constitute a hazard to air navi- gation, the proponent is requested to lower the height of the proposed construction or alteration to some negotiated height not exceeding hazard criteria. (6A) If the proponent agrees to lower the height of the proposed construction or alteration to a negotiated height not exceeding hazard criteria, the FAA issues a DNH with obstruction marking and lighting requirements. This type of DNH takes the longest to obtain, because it requires the most coordination with multiple FAA lines of business, other stakeholders, and the construction proponent’s team. (6B) If the proponent does not agree to lower the height of the proposed construction or alteration to some negotiated height not exceeding hazard criteria, the FAA issues a Determina- tion of Hazard (DOH). (7) The FAA final determinations are referenced by various authorities and stakeholders for a variety of purposes. DNHs have an 18-month expiration period, although an 18-month extension can sometimes be granted if requested in writing. The DNH becomes permanent once actual construction has begun. Actual construction is defined as foundations or structure; site clearing and earthwork are not considered actual construction. The elevations and heights stated in the DNH, which began with the data on the Form 7460-1 notice and may have been adjusted through negotiation, represent the tallest physical object on the building, including any parapets, obstruction lighting, appurtenances, antennas, elevator housings, flagpoles, mechanical equipment, window washing equipment, etc., whether temporary or permanent, frangible or not. Separate Form 7460-1 notices should be filed for temporary cranes and other equipment required for the construction of the building. These are often granted conditional DNHs for heights slightly taller than the permanent building, subject to lowering at night or in inclement weather, and special marking and lighting. The construction proponent is required to file FAA Form 7460-2, Notice of Actual Construc- tion, as directed on the DNH letter. Roles and Responsibilities of the Airport Management The airport management—a term used generically in this Guidebook to refer to the person or persons on the airport sponsor’s staff authorized to act on the airport’s behalf in airspace pro- tection matters—can assume a role that is active or passive, proactive or reactive. The decision of what role to take depends on a variety of technical, regulatory, political, and legal factors, and may be different at different times and for different construction proposals. If local height zoning restrictions adequately addressed airspace protection, and the FAA OE/AAA process always resulted in favorable determinations for heights no greater than would be acceptable to the airport and all its users, the airport management would have theoretically little-to-no role in the airspace analysis and construction permit process. In practice, this is rarely the case, for several reasons. ✈ Local height zoning restrictions often contain inadequate airspace protection considerations, or none at all, and the state’s DOT often does not provide adequate backup regulations where Mechanisms and Processes of Airspace Protection 29 Depending on a variety of local conditions, airport management can take a more active or passive role in the airspace protection process.

local regulations may be lacking. In these cases, the airport manager must coordinate with local authorities to encourage construction proponents to file FAA Form 7460-1 where required, and work with construction proponents and other stakeholders to mitigate or remove object- airspace conflicts. ✈ Even when appropriate height zoning restrictions are in place, civic, political, or other types of outside pressures can encourage local authorities to grant exceptions, which would allow tall structures that could conflict with airport operations. In these cases, the airport manage- ment must provide full information to the local authorities regarding the potential negative effects the proposed construction would have on aviation, so that fully informed compro- mises can be achieved. Proactive education of municipal authorities can be beneficial in minimizing the number of exceptions granted and/or involve airport management in the dis- cussion of potential exceptions early in the process. ✈ There may be airspace protection needs that are not considered in the FAA OE/AAA process. In many cases, these are airline’s OEI emergency procedures. The airport manager can discuss these needs with tenant airlines and can coordinate with local authorities to establish (1) air service capability objectives for the airport and (2) airspace protection measures required to meet these objectives, that are in some areas more restrictive in certain locations than the heights that would receive a favorable determination from the FAA. Otherwise, there is a chance that obstacles will be constructed in OEI flight path areas that discourage or preclude particular routes, as detailed elsewhere in this Guidebook. ✈ The airport sponsor is a department of a municipal organization (city, county, port, or other), another department of which is the construction permit authority. In these cases, the airport management may be routinely consulted regarding airspace protection issues in the development of General Plans, redevelopment efforts, and specific project proposals. When a construction proposal is presented to the airport management for review, it should be reviewed against all known airspace protection criteria, both in parallel with the FAA OE/AAA process, and applying any known necessary additional criteria such as OEI. If the proposal would exceed certain airspace protection criteria that airport management is concerned the routine OE/AAA process may not take into account, airport management may provide a height limit rec- ommendation or other expression of concern through formal channels, such as submitting a comment to the case when it is circularized under Public Notice in the OE/AAA process or in writing to the construction permit authority. In rare cases, when a DNH is issued for a proposed structure that the airport management considers significantly objectionable for aeronautical rea- sons, the airport management can petition for discretionary review of the determination. Any such messages conveying the airport management’s desired height limits should clearly state the technical aeronautical reason(s) that the proposal may be of concern. Airport manage- ment should consult legal counsel if there is a chance that the recommendation could be per- ceived as placing an undue burden on the construction proponent. Summary The mechanisms and processes of airspace protection are complex, and can occasionally lead to conflicts between the requirements of aviation and the economic or civic pressures of vertical construction. 1. Local authorities having jurisdiction to issue construction permits may or may not recognize airspace protection. Ideally, they should reference universal FAA notification requirements, and require a favorable determination from the FAA as a condition for permit approval. 2. Construction sponsors must file notice (Form 7460-1) with the FAA when required, provid- ing accurate data and timely responses. 30 Understanding Airspace, Objects, and Their Effects on Airports When presented with a proposal that would negatively affect airport opera- tions, the airport manager should be ready to provide technically-based input regarding any objections. Caution: because there is the chance that height limit recommendations could be perceived as undue burden, it may be prudent to consult with legal counsel.

3. When a specific structure proposal is submitted to the FAA, the FAA provides its assessment of the proposal through the OE/AAA process, concluding with a final determination. This process can include stakeholder input through the Public Notice function. 4. Local airport management should support municipalities and the FAA in the above processes where appropriate and can provide proactive or reactive input where the processes in place may not afford full protection. The nature of the airport management’s role depends on a variety of local factors. Because height limit recommendations may be construed as burden- some, input regarding these should be undertaken with advice from legal counsel. 5. It is ultimately up to the local authorities (occasionally backed by a state DOT), with input from all stakeholders, to determine the most appropriate compromise that best serves the community in the near- and long-term. Chapter 4, Conclusions, Recommendations, and Best Practices, will discuss some of the issues, conflicts, and resolutions that arose in the authors’ collective experience and in the Case Study examples documented in Appendix D. Mechanisms and Processes of Airspace Protection 31