Council seeks and receives assurances from Louisville Regional Airport Authority and FAA concerning easements at Bowman Field

Tuesday, February 28, 2012

Phil Lynch, Chair
Louisville Regional Airport Authority
700 Administration Drive
Louisville, KY 40209

Charles T. "Skip" Miller, Director
Louisville Regional Airport Authority
700 Administration Drive
Louisville, KY 40209

By email only

Dear Chairman Lynch and Mr. Miller:

I am writing out of caution concerning the recent approval by the Board for the acquisition of ?avigation” easements in furtherance of the “Bowman Field Area Airport Safety Plan.”

Inasmuch as the project is largely funded with federal dollars, the National Environmental Policy Act requires that environmental documentation in the form of an Environmental Impact Statement or Environmental Assessment be prepared and be completed prior to the FAA approving a course of action under the program.

Since the LRAA has not yet completed the survey of potential “obstructions” and the FAA has not yet made a determination as to the mitigation measures, if any, needed to address the existence of any obstructions (which could include changes in configuration of arrival and departure paths, etc.), it would be inappropriate for the LRAA to begin a program of seeking to acquire or condemn any additional avigation easements.

Beyond being inappropriate to begin implementation of a program prior to completion of the survey and environmental documentation under NEPA and the FAA recommendation on actions to address potential obstructions, attempts to acquire easements to support the Bowman Field Area Airport Safety Program would appear to violate the prohibitions in the Council on Environmental Quality regulations concerning “Limitations on actions during NEPA process.”

40 CFR 1506.1 provides in full that:

"(a) Until an agency issues a record of decision as provided in § 1505.2 (except as provided in paragraph (c) of this section), no action concerning the proposal shall be taken which would:
(1) Have an adverse environmental impact; or
(2) Limit the choice of reasonable alternatives.
(b) If any agency is considering an application from a non-Federal entity, and is aware that the applicant is about to take an action within the agency's jurisdiction that would meet either of the criteria in paragraph (a) of this section, then the agency shall promptly notify the applicant that the agency will take appropriate action to insure that the objectives and procedures of NEPA are achieved.
(c) While work on a required program environmental impact statement is in progress and the action is not covered by an existing program statement, agencies shall not undertake in the interim any major Federal action covered by the program which may significantly affect the quality of the human environment unless such action:
(1) Is justified independently of the program;
(2) Is itself accompanied by an adequate environmental impact statement; and
(3) Will not prejudice the ultimate decision on the program. Interim action prejudices the ultimate decision on the program when it tends to determine subsequent development or limit alternatives.
(d) This section does not preclude development by applicants of plans or designs or performance of other work necessary to support an application for Federal, State or local permits or assistance. Nothing in this section shall preclude Rural Electrification Administration approval of minimal expenditures not affecting the environment (e.g. long leadtime equipment and purchase options) made by non-governmental entities seeking loan guarantees from the Administration."

There is no doubt that the acquisition of avigation easements at this time would have the effect of limiting the choice among reasonable alternatives, since premature acquisition of easements presupposes that the outcome of the survey and the FAA review and recommendations will necessitate particular easements.

Additionally, to the extent that the relative ease of implementation is a factor in the FAA review and recommendation on options to mitigate obstructions, such acquisitions could prejudice the outcome relative to other strategies to address “obstructions.”

NEPA procedures “must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken.” A program of easement acquisition to support the Bowman Field Airport Area Safety Program would violate the limitations imposed on acting before completion of environmental documentation

I am copying the FAA in order to make that agency aware that the Board has approved acquisition of avigation easements, in order that it may fulfill its obligations under 40 CFR 1506.1(b). Previously, Mr. Dupree of the Memphis ADO, FAA, indicated that “no federal dollars beyond those necessary for the environmental process and the aeronautical survey can be used until an EA is approved by the FAA.” Use of LRAA dollars to begin acquisition would likewise be impermissible, since 40 CFR 1506.1 is a limitation on actions during the development of NEPA documentation irrespective of the source of funding for the actions.

In closing, I respectfully request that the LRAA provide assurances that it will refrain from attempting to acquire additional avigation easements in support of the Bowman Field Airport Area Safety Program until after a record of decision is issued by the FAA.

Cordially,

Tom FitzGerald
Director

Cc: LRAA Board
Tommy Dupree Memphis ADO, FAA

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