Innovative Airport Responses to Threatened and Endangered Species (2014)

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11 Identification of Potential Conflicts with Airport Actions The ESA is primarily dedicated to species protection, but when drafting the Act, Congress also sought to avoid ESA confrontations between proposed federal actions and listed species where it could. As a result, the ESA incorporates seek- ing protection for species with accommodation of other pub- lic policy needs by attempting to identify “reasonable and prudent alternatives” that allow projects to go forward with- out harming the species in question. This section presents airport activities and plans that could affect listed species and an overview of how listed species could affect airport opera- tions and safety. Also included is a discussion of the appli- cable regulatory guidance, the roles and responsibilities of the airport sponsor, and known conflicts and challenges that airports routinely face related to the occurrence of listed (or potentially listed) species and their habitats. Roles and Responsibilities of the Airport Sponsor The FAA’s primary mission is to ensure aviation safety, secu- rity, and efficiency. Actions taken by the FAA reflect sensitiv- ity to regional ecological and economic needs but still support FAA’s mission to ensure aviation safety. Per statutory and regu- latory requirements, the FAA must evaluate the environmental consequences of all proposed developments under NEPA, the Clean Air Act, the ESA, the Airport and Airway Improvement Act, and other regulations. (See http://www.faa.gov/airports/ environmental/.) Prior to commencement of a project, it is important for air- port sponsors to confirm that proposed actions comply with all local, state, and federal regulations as they pertain to impacts to protected species and habitats. While the responsibility for environmental compliance under NEPA resides with the fed- eral action agency (typically the FAA), the airport sponsor is responsible for maintaining compliance with all relevant rules, regulations, and grant assurances and must provide the FAA with sufficient information to facilitate the appropriate level of coordination with the agencies responsible for management of listed species. Alternately, the airport sponsor may be primarily responsible for compliance in situations where there may not be a federal nexus (e.g., an action that would not trigger federal involvement for funding or project approvals, such as a locally funded project). Listed species may occupy and use natural areas, structures, stormwater facilities, and maintained areas on airport property and are not always readily visible. Prior to implementation of any new action, the airport should coor- dinate either directly with the relevant regulatory agencies, or work with a qualified environmental professional to determine the presence of listed species within the project area. Roles and Responsibilities of Regulatory Agencies As discussed previously, the ESA requires federal agencies to ensure that actions they authorize, fund, or perform are not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of designated critical habitat of such species. The Services’ mis- sion is to work with others to conserve, protect, and enhance fish, wildlife, and plants and their habitats for the continuing benefit of the American people. The Services’ two major goals are to (1) protect endangered and threatened species and then pursue their recovery and (2) conserve candidate species and species at risk so that list- ing under the ESA is not necessary. These goals are achieved through the various programs, which include the Candidate Conservation Program, consultations, grants, HCPs, listing and critical habitat, recovery plans, and other mechanisms. Typical Airport Actions that Could Create Conflict There are a variety of airport actions that could affect (or be affected by) listed species including, but not limited to: • Airport development projects, • Airport master planning, • Airport expansion or land acquisition, S E C T I O N 4

12 • Airport operations, • Airport maintenance, and • Mitigation for other impacts (e.g., wetlands). As this list encompasses many airport actions, it is impor- tant that airport sponsors understand the potential con- flicts and challenges as well as the regulatory implications of addressing those challenges. While it is not inclusive of all potential conflicts, Table 1 outlines three key areas of conflict that airport sponsors routinely face related to the occurrence of listed (or potentially listed) species and their habitats: (1) wildlife hazard management, (2) maintenance and opera- tional requirements, and (3) development of airport prop- erty. These three key areas are discussed in more detail in the following sections. Wildlife Hazard Management Whether or not an airport is regulated under FAR Part 139 (Title 14 CFR Part 139.337: Part 139), wildlife hazard assess- ments and management plans can be valuable tools for the determination of onsite and offsite listed species and their habitats and what potential for impacts to airport opera- tion and safety they may represent. Either through a formal wildlife hazard assessment (as detailed in the joint FAA/U.S. Department of Agriculture [USDA] document Wildlife Haz- ard Management at Airports: A Manual for Airport Person- nel [Cleary and Dolbeer 2005] and other FAA guidance) or more informally, it is important for airport sponsors to understand the wildlife and habitats that occur at the airport in order to coordinate effectively with agencies to obtain any required permits or clearances and to have the appropriate For all areas of potential conflict, coordination with ESA agencies and/or permits may be required. Key Issue Area Potential Conflict Potential Issue for Airport Wildlife Hazard Management Onsite breeding/nesting for listed species Direct: Strike hazard Indirect: Operational restrictions Wetland mitigation on or near airport Direct: Potential attractant for federally listed or non-listed hazardous wildlife Indirect: Operation and maintenance restrictions Stormwater management systems Direct: Potential attractant for federally listed or non-listed hazardous wildlife Indirect: Operation and maintenance restrictions Establishment of species preserve or conservation areas Direct: Potential attractant for federally listed or non-listed hazardous wildlife Indirect: Operation and maintenance restrictions Maintenance and Operations Onsite breeding/nesting for listed species Aircraft delays, increased congestion due to species protection buffers or operations limits (i.e., mowing), restricted access to safety systems (i.e., NAVAIDS) Mitigation, natural areas, or preserve areas on or near airport Mowing/vegetation clearing restrictions, deterrent use restrictions, temporal or seasonal limitations on access or uses, restricted access to safety systems Special events Short durations of increased airport activity can require additional maintenance or operational adjustments, timing could conflict with restrictions on managed habitat Onsite preservation of burrowing species Impacts to paved and non-paved surfaces, refugia for prey species Airport Development Construction, land acquisition, demolition Direct: Need to mitigate due to impacts to species or habitat, increased costs, and/or schedule for regulatory review and approvals Indirect: i.e., need for buffers or altered schedule due to construction noise impacts Natural habitat or conservation areas on or near airport Habitats onsite or required management could be incompatible with operations or safety Coordination with ESA agencies/permits often required Stormwater management systems Onsite or near-site mitigation may restrict development, maintenance, or operations Coordination with ESA agencies/permits and specific operations and maintenance actions required Table 1. How the presence of endangered species may affect typical airport activities.

13 training to effectively manage potential risks to operations or safety. Natural areas have a potential to attract both listed and non-listed hazardous wildlife or in the case of forested areas, can result in penetrations of protected airspace. Whether or not the natural areas on an airport are protected or slated for future development, it is important for the airport sponsor to ensure compatibility of these natural areas with the air- port’s ALP. The type of habitat and potential for occurrence of listed species may affect development potential, as well as the mechanisms available for management. Airports are obligated to develop and maintain facili- ties in a manner that complies with all FAA advisory cir- culars in order to ensure a safe and efficient operational environment. A wide variety of listed species (especially birds) have the potential to create wildlife hazard concerns as they transit airport property or airspace. Additionally, while specific species may not be a direct concern from a strike standpoint, they, or their habitat, may attract predators (e.g., coyotes) or other wildlife that could pose a significant risk to aviation. The FAA actively encourages the voluntary reporting of wildlife strikes and makes available information on the pro- cess and importance of reporting strikes (Advisory Circular 150/5200-32A: Reporting Wildlife Aircraft Strikes). Because strike reporting has not been consistent across the industry, it is expected that a number of strikes involving federally listed spe- cies are either not reported or reported incorrectly as other spe- cies within their guild. As strike reporting awareness increases, strike reports become more detailed and accurate, and wildlife conservation efforts result in population rebounds for listed species, there will likely be an increase in the reported number of conflicts between listed species and aircraft. Regulations, habitat conservation plans, mitigation lands, and other agreements related to listed species and protected habitats for those species may conflict with FAA guidance related to wildlife hazard management at airports. In addi- tion to ACRP publications (e.g., ACRP Report 32: A Guidebook for Addressing Aircraft/Wildlife Hazards at General Aviation Airports [Cleary and Dickey 2010]), the FAA and other agen- cies have regulatory guidance, agreements, and information related to wildlife hazard management readily accessible. A majority of these resources are publicly available through the FAA website (http://www.faa.gov/airports/airport_safety/ wildlife/guidance/) including the following: • Advisory Circular 150/5200-33B: Hazardous Wildlife Attractants On or Near Airports (provides guidance on certain land uses that have the potential to attract hazard- ous wildlife on or near public-use airports). • Certalert No. 98-05: Grasses Attractive to Hazardous Wildlife. • Certalert No. 04-09: Relationship between FAA and Wild- life Services. • Certalert No. 06-07: Requests by State Wildlife Agencies to Facilitate and Encourage Habitat for State-Listed Threat- ened and Endangered Species and Species of Special Con- cern on Airports. • Wildlife Hazard Management at Airports: A Manual for Airport Personnel (Cleary and Dolbeer 2005). In addition to these published documents, new documents— such as the pending AC discussing protocols for wildlife hazard assessments and plans—and updates and clarifications to exist- ing guidance are continually added to this resource repository. The FAA, the U.S. Air Force, the U.S. Army, the U.S. Environ- mental Protection Agency (EPA), the USFWS, and the USDA are parties to a memorandum of agreement (MOA) that recognizes each agency’s role in aircraft-wildlife strikes and establishes procedures to coordinate their missions to more effectively address environmental conditions contributing to aircraft-wildlife strikes. The MOA helps facilitate multi-agency, cooperative review of proposed activities that include, but are not limited to: (1) airport siting and expansion, (2) develop- ment of conservation/mitigation habitats or other land uses that could attract hazardous wildlife to airports or nearby areas, and (3) responses to known wildlife hazards or aircraft-wildlife strikes. The MOA directs the appropriate signatory agencies to cooperatively review proposed actions that would create or expand habitat areas that could attract hazardous wildlife and to develop mutually acceptable and consistent guidance, manuals, or procedures addressing the management of habitats attractive to hazardous wildlife. This MOA is included on CRP-CD-160: Airport Toolbox for ACRP Report 122, which is bound into this report and available on the ACRP Report 122 web page. (See also http://www.faa.gov/airports/environmental/ media/wildlife_hazard_mou_2003.pdf.) In some cases, a regional memorandum of understanding (RMOU) can be developed that addresses specific regional concerns. One example of this includes the RMOU developed for the Southern Region (includes Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Ten- nessee, the Commonwealth of Puerto Rico, and the U.S. Virgin Islands), which builds upon the national MOA discussed above. This region-specific agreement identifies coordination proce- dures established to minimize wildlife risks to aviation and human safety, while protecting the region’s valuable environ- mental resources. (See http://www.faa.gov/airports/southern/ airport_safety/media/so_wildlife_strikes_mou.pdf.) Maintenance and Operational Constraints The occurrence of listed species and/or protected habitat on an airport can pose operational and maintenance constraints

14 on activities such as stormwater management and mainte- nance of safety or navigational areas and equipment, as well as removal of penetrations into airspace protection surfaces. Some examples in which the occurrence of listed species could potentially conflict with airport operations include the following: • Temporary closures of portions of the airfield during nest- ing period(s) for onsite listed species can result in aircraft delays, increased congestion, and potential safety concerns. Restrictions on tree trimming and other vegetation man- agement activities can impact Part 77 obstruction surfaces (14 CFR Part 77, Safe, Efficient Use, and Preservation of the Navigable Airspace). This can result in an increase in approach minimums for an airport and also require relo- cation of runway landing thresholds. • Restricted access to airport navigational aids (NAVAIDS) due to nests and other wildlife activities can limit the abil- ity to properly maintain equipment and facilities and can potentially impact equipment effectiveness and reliability. • Listed species occurrence or management requirements may alter maintenance schedules for activities such as mow- ing, vegetation clearing, or trimming (e.g., nesting season restrictions). • Burrowing species, such as gopher tortoises, may impact the integrity of paved surfaces and non-paved safety areas and may also create refugia for both listed and non-listed prey species whose predators may pose a strike risk. Often airport operators are not fully aware of all of the implications that habitat management for listed species can have on maintenance and operations. Additionally, many wildlife agencies may not be familiar with the potential risks associated with creating, enhancing, or preserving some types of habitats on, or near, airports. For instance, in recent years, many state wildlife agencies have requested that airport opera- tors facilitate and encourage habitat on airports for state-listed threatened and endangered species or species of special con- cern. The FAA’s Certalert No. 06-07: Requests by State Wildlife Agencies to Facilitate and Encourage Habitat for State-Listed Threatened and Endangered Species and Species of Special Concern on Airports stresses that airport operators must exer- cise great caution in adopting new management techniques, particularly where they may create conditions attractive to hazardous wildlife and detrimental to aviation safety. Adopt- ing such techniques could place an airport operator in viola- tion of their grant obligations to maintain compatible land uses and subject them to an FAA enforcement action and possible civil penalties (49 U.S.C. §44706, as implemented by 14 CFR § 139.337). Although Certalert No. 06-07 addresses state-listed species, the same considerations apply in address- ing federally listed species and their habitats. It is important to note that not all habitat is considered an attractant for hazardous wildlife and that many habitats that are potentially attractants can often be managed to reduce the risk. In Certalert No. 06-07, the FAA identifies the key land management practices that could affect aviation safety and provides recommendations for each. These include the following: • Adhering to proper turf, landscaping, and habitat manage- ment practices that do not encourage the presence of, or attract, hazardous species; • Avoiding deliberate preservation or development of on- airport wildlife habitats that attract hazardous wildlife; • Adhering to the wildlife harassment and repellent techniques (where applicable) to prevent hazardous wildlife species from becoming established and complicating the ability to adhere to prescribed habitat management practices; • Disallowing hazardous species (including listed species) to remain on the airport if it requires managing the airport environment contrary to FAA recommendations; • Ensuring that existing and future agreements with federal, state, or local wildlife agencies are as consistent with fed- eral obligations concerning hazardous wildlife as possible; and • Mitigating wetland impacts off-airport, where possible (AC 150/5200-33A, §2-4.c (1)). Where the potential for conflict between operations and wildlife may occur, a wildlife hazard management plan (WHMP) can be a useful tool. The multi-agency MOA, refer- enced previously, provides a mechanism for cooperative sup- port from the agencies in developing these plans. In general, a WHMP can provide airport-specific recommendations for operational and/or maintenance activities that avoid impacts to wildlife populations or sensitive habitat to the greatest extent possible while maintaining safe operations consistent with those in Certalert No. 06-07. There are a number of ways that airports can be managed that are consistent with the FAA’s guidance (safe for aircraft) and consistent with the laws, regulations, and policies governing listed species and their habitat. Examples are included in Case Studies #2, #4, and #7. Development of Airport Property Airports have been designated as areas for aviation and aviation support uses (including revenue-generation proj- ects). In many cases, airports have a significantly positive effect on the local/regional economy. While airport operators strive to meet local, state, and federal regulations concerning environmental impacts (including wetlands, listed species, surface water, and landscaping requirements), in many cases,

15 protecting natural resources on the airport will conflict with the ability to accommodate future demand. Airport devel- opment projects that must address listed species coordina- tion and/or mitigation can have notably increased schedule delays and cost and can result in less-than-desired outcomes for the development of the airport facilities, if the endangered species issues are not addressed early in the planning pro- cess. By signing the MOA, the signatory agencies agreed to consult with airport proponents during early planning pro- cesses (initiated by the FAA) and work together to evaluate alternatives that avoid adverse impacts to regulated habitats or species. According to the MOA, if those habitats support hazardous wildlife and practical alternatives for site develop- ment do not exist, the agencies have agreed to work together to develop “mutually acceptable measures, to protect aviation safety and mitigate any unavoidable wildlife impacts.” The FAA estimates that “in 2009, civil aviation supported over 10 million jobs, contributed $1.3 trillion in total eco- nomic activity and accounted for 5.2 percent of the total U.S. Gross Domestic Product.” (FAA Office of Performance Analysis and Strategy 2011). As the global economy contin- ues to rapidly evolve, aviation linkages throughout the United States will become increasingly important for the transfer of passengers and goods. Airports represent significant infra- structure investments and require considerable land mass. They also raise significant compatibility considerations such as noise, airspace, safety areas, and so forth. As a result, very few new airports are being developed. The future growth of the aviation system relies almost exclusively on the expan- sion of existing facilities. With long-term projected growth in aviation demand both domestically and internationally, it is important to ensure that existing airport facilities can expand as appropriate without undue burden. There are several types of development actions that have the potential to affect federally listed species or their habi- tats. Those can be generally categorized as (1) construction, (2) land acquisition, and (3) mitigation. These are discussed in more detail below. Construction Impacts Construction projects at airports, such as facility improve- ments or expansions within existing property, are the most apparent way that potential impacts to federally listed spe- cies can occur. These impacts may be direct (e.g., physical removal of a species or habitat or a habitat component such as trees) or indirect (construction noise) and encompass a wide variety of airport actions. In general, airport construc- tion projects involve extensive planning and design prior to implementation. This process can work to the airport opera- tor’s advantage if environmental conditions are evaluated and identified in the early phases of the project. In Chapter 5 of Advisory Circular 150/5070-6B: Airport Master Plans, the FAA identifies the importance of including environmental reviews in planning and recommends that the planning pro- cess consider the needs of subsequent environmental review processes. It explains that “the consideration of environmen- tal factors in the planning process will typically result in an inventory (overview) of the airport’s environmental setting, the identification of potential environmental impacts of airport development alternatives, and the identification of environmentally related permits that may be required for rec- ommended development projects.” Documentation during the planning phase will allow airports to identify and address potential conflicts between projects and federally listed spe- cies well in advance of impact occurrence or construction commencement. Land Acquisition Airport operators may seek to acquire land to ensure cur- rent or future airport expansion and for both remedial and preventative land-use management. FAA’s Airport Improve- ment Program Handbook—Order 5100.38A sets forth FAA policy as follows: “The acquisition of land for future airport development must meet the requirements of the National Environmental Policy Act (NEPA) of 1969, as implemented by Orders 1050.1 and 5050.4” (FAA 1989, pp. 70–71). The Airport Improvement Program Handbook dictates that as part of the planning process and subsequent FAA approval of an airport layout plan depicting the land to be acquired, environmental issues must be assessed to comply with NEPA requirements (FAA 1989). It is important for airport spon- sors to review proposed land acquisitions for the occurrence of federally listed species as well as for habitats that might attract listed or non-listed hazardous wildlife. If these condi- tions exist on the acquisition parcel(s), it is critical for the airport to coordinate with all relevant agencies and establish future development plans with input from those agencies. This includes addressing endangered species issues early in the planning process and incorporating conservation mea- sures and mitigation requirements into those plans. Failure to do so could result in increased risk, unanticipated develop- ment costs, and project delays. Mitigation Protecting natural resources on an airport can conflict with the ability to accommodate future demand and com- pliance with ever-evolving safety mandates. If coordination has not occurred in the planning process, airport develop- ment projects that involve listed species coordination and/ or mitigation can run into notably increased schedule delays and costs and see modifications to the development plans for

16 airport facilities. Mitigation measures for impacts to listed species can include alteration of management actions, pres- ervation or creation of suitable habitat, or development of various mitigation strategies as part of an HCP. Additionally, impacts to other resources, such as wetlands, may also require mitigation that involves habitat management or establish- ment. While there are a number of ways that these mitigation actions can be accomplished that do not conflict with opera- tions or safety at airports, there are a large number of actions that have the potential to conflict. In the federal agency MOA addressing aircraft-wildlife strikes, the signatory agencies agree that while not all habitat types attract hazardous wild- life, one of the activities of most concern is the development of conservation or mitigation habitats or other land uses that could attract hazardous wildlife to airports or nearby areas. The MOA identifies the importance of collaborative review of proposals to develop or expand wetland mitigation sites or wildlife refuges that may attract hazardous wildlife. Addi- tional challenges arise when impacts involve habitats that provide unique ecological functions or values (i.e., critical habitat for federally listed endangered or threatened species). It is in those cases where innovative approaches may be nec- essary to overcome typical process challenges. Examples of these are included in several of the case studies in this primer.