[Federal Register Volume 60, Number 53 (Monday, March 20, 1995)]
[Proposed Rules]
[Pages 14701-14705]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6754]
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DEPARTMENT OF TRANSPORTATION
14 CFR Part 150
[Docket No. 28149]
Policy on Approval and Funding of Part 150 Program Noise
Mitigation Measures
AGENCY: Federal Aviation Administration, DOT.
ACTION: Proposed policy; request for comment.
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SUMMARY: This notice requests comments on a proposed change in the
Federal Aviation Administration's (FAA) policy concerning approval and
eligibility for Federal funding of certain noise mitigation measures.
The proposed policy would increase the incentives for airport operators
to prevent the development of new noncompatible land uses around
airports and assure the most cost effective use of Federal funds spent
on land use measures. The revised policy would more clearly distinguish
between measures that are appropriate for application to existing
noncompatible development and measures that are appropriate for
application to new noncompatible development. This differentiation
between the use of remedial measures for existing noncompatible
development and preventive measures for new noncompatible development
is necessary for the FAA to determine the appropriate approval or
disapproval of actions on proposed land use measures in an airport's
noise compatibility program.
DATES: Comments must be received on or before April 19, 1995.
ADDRESSES: Comments on this notice should be mailed, in triplicate, to
the Federal Aviation Administration (FAA), Office of Chief Counsel,
Attn.: Rules Docket (AGC-10), Docket No. 28149, 800 Independence Avenue
SW., Room 915G, Washington, DC 20591. Comments may be inspected in Room
915G between 8:30 a.m. and 5:00 p.m., weekdays, except Federal
holidays.
Commenters who wish the FAA to acknowledge the receipt of their
comments must submit with their comments a pre-addressed, stamped
postcard on which the following statement is made: ``Comments to Docket
No. 28149.'' The postcard will be date-stamped by the FAA and returned
to the commenter.
for further information contact:Mr. William W. Albee, Policy and
Regulatory Division (AEE-300), Office of Environment and Energy, FAA,
800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-
3553, facsimile (202) 267-5594.
SUPPLEMENTARY INFORMATION:
Background
The Airport Noise Compatibility Planning Program (14 CFR part 150,
hereinafter referred to as part 150 or the part 150 program) was
established under the Aviation Safety and Noise Abatement Act of 1979
(49 U.S.C. 47501 through 47509, hereinafter referred to as ASNA). The
part 150 program allows airport operators to submit noise exposure maps
and a noise compatibility program to the FAA voluntarily. According to
the ASNA, a noise compatibility program sets forth the measures that an
airport operator has taken or has proposed for the reduction of
existing noncompatible land uses and the prevention of additional
noncompatible land uses within the area covered by noise exposure maps.
The ASNA embodies strong concepts of local initiative and
flexibility. The submission of noise exposure maps and a noise
compatibility program is left to the discretion of local airport
operators. Airport operators may also choose to submit noise exposure
maps without preparing and submitting a noise compatibility program.
The types of measures that airport operators may include in a noise
compatibility program are not limited by the ASNA, allowing airport
operators substantial latitude to submit a broad array of measures--
including innovative measures--that respond to local needs and
circumstances.
The criteria for approval or disapproval of measures submitted in a
part 150 program are set forth in the ASNA. The ASNA directs the
Federal approval of a noise compatibility program, except for measures
relating to flight procedures: (1) If the program measures do not
create an undue burden on interstate or foreign commerce; (2) if the
program measures are reasonably consistent with the goal of reducing
existing noncompatible land uses and preventing the introduction of
additional noncompatible land uses; and (3) if the program provides for
its revision if necessitated by the submission of a revised noise
exposure map. Failure to approve or disapprove a noise compatibility
program within 180 days, except for measures relating to flight
procedures, is deemed to be an approval under the ASNA. Finally, the
ASNA sets forth broad eligibility criteria, consistent with the ASNA's
overall deference to local initiative and flexibility. The FAA is
authorized, but not obligated, to fund projects via the Airport
Improvement Program (AIP) to carry out measures in a noise
compatibility program that are not disapproved by the FAA.
In establishing this new program, which became embodied in FAR part
150, the ASNA did not change the legal authority of state and local
governments to control the uses of land within their jurisdictions.
Public controls on the use of land are commonly exercised by zoning.
Zoning is a power reserved to the states under the U.S. Constitution.
It is an exercise of the police powers of the states that designates
the uses permitted on each parcel of land. This power is usually
delegated in state enabling legislation to local levels of government.
Neither the FAA nor any other agency of the Federal government has
zoning authority.
Many local land use control authorities (cities, counties, etc.)
have not adopted zoning ordinances or other controls to prevent
noncompatible development (primarily residential) within the noise
impact areas of airports. An airport's noise impact area, identified
within noise contours on a noise exposure map, may extend over a number
of different local jurisdictions that individually control land uses.
For example, at five airports recently studied, noise contours overlaid
portions of from two to twenty-five different jurisdictions.
While airport operators have included measures in noise
compatibility programs submitted under part 150 to prevent the
development of new noncompatible land uses through zoning and other
controls under the authorities of appropriate local jurisdictions,
success in implementing these measures has been mixed. A study
performed under contract to the FAA, completed in January 1994,
evaluated sixteen airport case studies for the implementation of land
use control measures. This study found that of the sixteen airports,
six locations have implemented the recommended zoning measures, seven
locations have not implemented the recommended zoning measures, and
three are in the process of implementation.
Another recent independent study evaluated ten airports that have
FAA approved part 150 programs in place and found that four locations
have [[Page 14702]] prevented new noncompatible land use development
and six locations have not prevented such new development. At the
latter six locations the study reported that twenty-six nonairport
sponsor jurisdictions have approved new noncompatible development and
twenty-eight nonairport sponsor jurisdictions and one airport sponsor
jurisdiction have vacant land that is zoned to allow future
noncompatible development.
The independent study identified the primary problem of allowing
new noncompatible land uses near airports to be in jurisdictions that
are different from the airport sponsor's jurisdiction. This is
consistent with observations by the FAA and with a previous General
Accounting Office (GAO) report that observed that the ability of
airport operators to solve their noise problems is limited by their
lack of control over the land surrounding the airports and the
operator's dependence on local communities and states to cooperate in
implementing land use control measures, such as zoning for compatible
uses.
The FAA's January 1994 study explored factors that contribute to
the failure to implement land use controls for noise purposes. A major
factor is the multiplicity of jurisdictions with land use powers within
airport noise impact areas. The greater the number of different
jurisdictions, the greater the probability that at least some of them
will not implement controls. Some jurisdictions have not developed
cooperative relationships with the airport operator, which impedes
appropriate land use compatibility planning. Some jurisdictions are not
aware of the effects of aircraft noise and of the desirability of land
use controls. This appears to be caused by a lack of ongoing education
and communication between the airport and the jurisdictions, and to be
worsened by lack of continuity in local government.
Some jurisdictions do not perceive land use controls as a priority
because the amount of vacant land available for noncompatible
development within the airport noise impact area is small, perhaps
constituting only minor development on dispersed vacant lots, or
because the current demand for residential construction near the
airport is low to nonexistent. In such areas land use control change
are not considered to have the ability to substantially change the
number of residents affected by noise. Jurisdictions may also give
noise a low priority compared to the economic advantages of developing
more residential land or the need for additional housing stock within a
community. A zoning change from residential to industrial or commercial
may not make economic sense if little demand exists for this type of
development opportunity. Therefore, a zoning change is viewed as
limiting development opportunities and diminishing the opportunities
for tax revenues.
In some cases, compatible land use zoning has met with organized
public opposition by property owners arguing that the proposed zoning
is a threat to private property rights, and that they deserve monetary
compensation for any potential property devaluation. Further, basic
zoning doctrine demands that the individual land parcels be left with
viable economic value, i.e., be zoned for a use for which there is
reasonable demand and economic return. Otherwise, the courts may
determine a zoning change for compatibility to be a ``taking'' of
private property for public use under the Fifth Amendment to the U.S.
Constitution, requiring just compensation.
One or more of the factors hindering effective land use controls
may be of sufficient importance to preclude some jurisdictions from
following through on the land use recommendations of an airport's part
150 noise compatibility program. When either an airport sponsor's or a
nonairport sponsor's jurisdiction allows additional noncompatible
development within the airport's noise impact area, it can result in
noise problems for the people who move into the area. This can, in
turn, result in noise problems for the airport's operator in the form
of inverse condemnation or noise nuisance lawsuits, public opposition
to the expansion of the airport's capacity, and local political
pressure for airport operational and capacity limitations to reduce
noise. Some airport operators have taken the position that they will
not provide any financial assistance to mitigate aviation noise for new
noncompatible development. Other airport operators have determined that
it is a practical necessity for them to include at least some new
residential areas within their noise assistance program to mitigate
noise impacts that they were unable to prevent in the first place--
particularly if they have airport expansion plans. Over a relatively
short period of time, the distinctions blur between what is ``new'' and
what is ``existing'' residential development with respect to airport
noise issues.
Airport operators currently have the local discretion to include
new noncompatible land uses, as well as existing noncompatible land
uses, within their part 150 noise compatibility programs and to
recommend that remedial land use measures--usually either land
acquisition or noise insulation--be applied to both situations. These
recommendations have been considered to be approvable by the FAA under
part 150. The part 150 approval enables noise mitigation measures to be
eligible for Federal funding, although it does not guarantee that
Federal funds will be provided.
Proposed Change in Policy
At issue is whether the FAA should revise its part 150 approval
policy and its AIP noise set aside funding policy so as to approve and
fund only preventative noise mitigation measures for new noncompatible
land use development. The FAA's goal is to have a policy in place that
provides airport operators with the maximum possible incentive
available under the ASNA and the part 150 program, and the FAA with the
maximum possible leverage to prevent the introduction of additional
noncompatible development within an airport's noise contours. The FAA
also seeks to make the most cost-effective use of limited Federal
dollars that have been set aside for projects to implement part 150
programs. It is the FAA's intent to revise its policy within the
parameters of the ASNA, but future legislative initiatives should not
be ruled out.
Discussion
The continuing development of noncompatible land uses around
airports is not a new problem. The FAA, airport operators, and the
aviation community as a whole have for some years expended a great deal
of effort to deal with the noise problems that are precipitated by such
development.
With respect to the part 150 program and Airport Improvement
Program (AIP) noise grants, the FAA considered in the 1989-1990 time
frame whether to disallow federal assistance for new noncompatible
development. The choice posed at that time was either (1) allow Federal
funding for airport operator recommendations in part 150 programs that
included new noncompatible land uses within the parameters of land use
measures targeted for financial assistance from the airport (e.g.,
acquisition, noise insulation), or (2) disallow all Federal funding for
new noncompatible development that local jurisdictions fail to control
through zoning or other land use controls. No other alternatives were
considered.
The FAA selected the first option--to continue to allow Federal
funds to be [[Page 14703]] used to mitigate new noncompatible
development as well as existing noncompatible development if the
airport operator so chose. Several factors supported this decision. One
factor was lack of authority by airport operators to prevent new
noncompatible development in nonairport sponsor jurisdictions, although
airport sponsors bear the brunt of noise lawsuits. Intense local
opposition to an airport can be detrimental to its capacity, especially
if any expansion of airport facilities is needed. The FAA also
considered the plight of local citizens living with a noise impact that
they may not have fully understood at the time of home purchase. Land
use noise mitigation measures, funded by the airport either with or
without Federal assistance, may be the only practical tool an airport
operator has to mitigate noise impacts in a community. The FAA was
hesitant to deny airport operators and the affected public Federal help
in this regard. In addition, the FAA gave deference to the local
initiative, the flexibility, and the broad eligibility for project
funding under the ASNA.
Since this review in 1989-1990, the FAA has given extensive
additional consideration to the subject of noncompatible land uses
around airports. In 1993, the FAA established a study group on
Compatible Land Use to assist in the development of a national strategy
to prevent and reduce noncompatible land uses. Pending review of
recommendations from this study group on future initiatives that may
require legislation, the FAA is considering whether immediate modest
changes in part 150 policy and funding, within the parameters of
existing legislation, would be an appropriate interim step. The
proposal presented here involves a more measured and multi-faceted
approach than the proposal considered in 1989-1990.
A primary criterion in the ASNA for the FAA's approval of measures
in an airport's part 150 noise compatibility program is that the
measures must be reasonably consistent with obtaining the goal of
reducing existing noncompatible land uses and preventing the
introduction of additional noncompatible land uses. Until now, the FAA
has applied this criterion as a whole when issuing determinations under
part 150; that is, if a measure either reduces or prevents
noncompatible development, no matter when that development occurs, it
may be approved as being reasonably consistent. No distinction has been
made by the FAA between remedial land use measures that reduce
noncompatible development and preventive land use measures that prevent
noncompatible development. Airport operators may, therefore, recommend
and receive FAA approval under part 150 for remedial acquisition or
soundproofing of new residential development.
The FAA is now considering whether it would be more prudent to
distinguish between (1) Land use measures that are reasonably
consistent with the goal of reducing existing noncompatible land uses
(i.e., remedial measures) and (2) land use measures that are reasonably
consistent with the goal of preventing the introduction of additional
noncompatible land uses (i.e., preventive measures). Using such a
distinction, airport operators would need to clearly identify within
the area covered by noise exposure maps the location of existing
noncompatible land uses versus the location of potentially new
noncompatible land uses. Many airport operators currently record this
distinction in their noise exposure map submissions, when identifying
noncompatible land uses. Potentially new noncompatible land uses could
include (1) areas currently undergoing residential or other
noncompatible construction; (2) areas zoned for residential or other
noncompatible development where construction has not begun; and (3)
areas currently compatible but in danger of being developed
noncompatibly within the time frame covered by the airport's noise
compatibility program.
The purpose of distinguishing between existing and potential new
noncompatible development is for airport operators to restrict their
consideration of remedial land use measures to existing noncompatible
development and to focus preventive land use measures on potentially
new noncompatible development. The most commonly used remedial land use
measures are land acquisition and relocation, noise insulation,
easement acquisition, purchase assurance, and transaction assistance.
The most commonly used preventive land use measure are comprehensive
planning, zoning, subdivision regulations, easement acquisition
restricting noncompatible development, revised building codes for noise
insulation, and real estate disclosure. Acquisition of vacant land may
also be a preventive land use measure. Often, combinations of these
measures are applied to assure the maximum compatibility.
In a revised FAA policy, airport operators would not be limited to
applying the most commonly used land use measures in their noise
compatibility programs. Local flexibility to recommend other measures,
including innovative measures, under part 150 would be retained.
However, all land use measures applied to existing noncompatible
development must clearly be remedial and serve the goal of reducing
existing noncompatible land uses. Similarly, all land use measures
applied to potential new noncompatible development must clearly be
preventive and serve the goal of preventing the introduction of
additional noncompatible land uses.
Any FAA determinations issued under part 150 would be consistent
under this policy. The FAA's approval of remedial land use measures
would be limited to existing noncompatible development. The FAA's
approval of preventive land use measures would be applied to potential
new noncompatible development. The FAA recognizes that there will be
gray areas which will have to be addressed on a case-by-case basis
within these policy guidelines. For example, minor development on
vacant lots within an existing residential neighborhood, which clearly
is not extensive new noncompatible development, may for practical
purposes need to be treated with the same remedial measure applied to
the rest of the neighborhood. Another example would be a remedial
situation in which noise from an airport's operation has significantly
increased, resulting in new areas that were compatible with initial
conditions becoming noncompatible. Airport operators would be
responsible for making the case for exceptions to the policy guidelines
in their part 150 submittals.
Federal funding of noise projects through the noise set aside of
the Airport Improvement Program (AIP) would follow the same policy as
the FAA's part 150 determinations--remedial funding for existing
noncompatible development and preventive funding for potential new
noncompatible development. The FAA would apply the same policy to those
few types of noise projects, such as soundproofing of schools and
health care facilities, that are eligible for AIP funds under the noise
set aside without an approved part 150 program.
The impact of revising the FAA's policy on part 150 land use
determinations and AIP funding would be to preclude the use of the part
150 program and AIP funds to remediate new noncompatible development
within the noise contours of an airport after the effective date of
such a policy revision. By precluding this option while at the same
time emphasizing the array of preventive land use measures
[[Page 14704]] that may be applied to potential new noncompatible
development, the FAA seeks to focus airport operators and local
governments more clearly on using these Federal programs to the maximum
extent to prevent noncompatible development around airports, rather
than attempting to mitigate noise in such development after the fact.
The FAA has determined that such a policy will better serve the public
interest. Unlike the FAA's previous consideration of this issue in
1989-1990, Federal funding would be available to assist airport
operators in dealing with new noncompatible development that is not
being successfully controlled by local jurisdictions, so long as the
airport's methods prevent the noncompatible development rather than
mitigating it after development has occurred. This should be a more
cost effective use of limited Federal dollars since remedial land use
measures generally cost more for a given unit than preventive measure.
In selecting a date to implement this policy revision, the FAA must
balance a desire to implement a perceived beneficial program change as
rapidly as possible with practical transition considerations of ongoing
part 150 programs. One approach would be to implement it on an airport-
by-airport basis, selecting either the date of the FAA's acceptance of
an airport's noise exposure maps or the date of the FAA's approval of
an airport's noise compatibility program under part 150.
This approach would have the advantage of directly tying this
policy to a point in time for which an airport operator has defined, in
a public process, the size of the airport's noise impact area and has
consulted with local jurisdictions on measures to reduce and prevent
noncompatible land uses. There are, however, disadvantages to this
approach. Approximately 200 airports have participated in the part 150
program, beginning in the early 1980's. Thus, selecting either the
noise exposure map's acceptance date or the noise compatibility
program's approval date for these airports, which includes the great
majority of commercial service airports with noise problems, means
either applying this policy revision retroactively or applying it
prospectively at some future date as such airports update their maps
and programs.
Retroactive application has been suggested, which could present
serious legal issues. There is also an equity issue in applying new
policy retroactively, especially in view of the FAA's reaffirmation of
the 1989-1990 policy. This alternative would require the FAA and
airport operators to review previous part 150 maps and programs,
historically reconstructing which land use development was ``existing''
at that time and which development is ``new'' since then, to
potentially withdraw previous FAA part 150 determinations approving
remedial measures for ``new'' development, and not issue new AIP grants
for any ``new'' development (which by 1995 may have already been built
and in place for a number of years and be regarded locally as an
integral part of the airport's mitigation program for existing
development). There is the further practical consideration of benefits
to be achieved. It may now be too late to apply preventive land use
measures to noncompatible land uses that have been developed since an
airport's noise exposure maps have been accepted or noise compatibility
program has been approved. If remedial land use measures are now
determined not to be applicable to such areas, the areas would be left
in limbo, having had no advance warning of a Federal policy revision.
There are also disadvantages to applying this policy revision
prospectively on an airport-by-airport basis as an airport either
updates a previous part 150 program or completes a first-time part 150
submission. The major disadvantages would be in the timeliness of
implementing the policy revision and the universality of its coverage.
Since part 150 is a voluntary program, airport operators may select
their timing of entry into the program and the timing of updates to
previous noise exposure maps and noise compatibility programs. The
result would be a patchwork implementation, with some airports
operating under the new policy regarding part 150 land use measures and
funding and other airports operating under the old policy for an
unspecified number of years. An unintended and counterproductive side
effect could be the postponement by some airports of updated noise
exposure maps and noise compatibility programs in order to maintain
Federal funding eligibility under the previous policy.
A better option appears to be to select one prospective date
nationwide as the effective date for this policy revision rather than
to implement it based on an individual airport's part 150 activities,
either maps or program. A specific date would insure nationwide
application on a uniform basis and would provide a more timely
implementation than prospective airport-by-airport implementation
dates. A specific date would also eliminate any perceived advantages in
postponing new or updated part 150 programs. The selection of a
specific date could either be (1) the date of issuance of a final
policy revision following evaluation of comments received on this
proposal or (2) a date, 180 days to a year after publication of the
revised policy, allowing some amount of transition time for airport
operators to accommodate previously approved part 150 programs, recent
part 150 submissions, or those programs or submissions under
development.
While the date of issuance of a policy revision has the advantage
of timeliness, this may be outweighed by the disadvantage of too abrupt
a transition from one policy to another without giving airport
operators and local communities a chance to react. The FAA currently
anticipates implementing a transition period from the date of issuance
of a policy revision of at least 180 days to avoid disrupting airport
operators' noise compatibility programs that have already been
submitted to the FAA and undergoing statutory review. Provision for
this period plus an additional margin of time beyond 180 days would
allow airport operators adequate opportunity to amend previously
completed noise compatibility programs or programs currently underway,
in consultation with local jurisdictions, to make the appropriate
adjustments in remedial and preventive land use measures in the
programs. The revision of land use strategies submitted in a part 150
program cannot be accomplished overnight. Accordingly, the FAA is
seeking comment on how long to extend a transition period beyond the
180 days noted--to a possible maximum of an additional 180 days, or 12
months from the date of issuance of the policy revision. Any time frame
implemented will be established only after the careful consideration of
public comments on this proposal.
The potential future expenditure of AIP funds for projects to
remediate new noncompatible development during a transition period is
believed to be minimal, based upon the FAA's review of the sample of
airports included in the FAA's recent study and in an independent
study, as well as general program knowledge. Not all airports have a
problem of continuing uncontrolled noncompatible development. Among
those that do have a problem, not all of them offer to provide remedial
financial assistance for the new development, as shown in their part
150 submissions. Even in those cases where financial assistance for
remediation is recommended for new noncompatible development, it is
[[Page 14705]] generally limited in scope and identified as a lower
priority than funding remediation for existing noncompatible
development. Further, funding for such new noncompatible development
may only be anticipated in the latter years of an airport's part 150
program when it may not be needed because of shrinking noise contours
resulting from the national transition to the use of Stage 3 aircraft.
Since part 150 is a voluntary program, each airport operator has
the discretion to make its own determinations regarding the impact of a
revised policy on its noise compatibility program. If an impact is
found, each operator could determine whether to immediately amend its
program during the allowed transition period or to wait until the
program is otherwise updated. However, any remedial land use measures
for noncompatible development that are allowed to occur within the area
of an airport's noise exposure maps after the effective date of a
revised policy would not be approved under part 150 and would have to
be funded locally, since they would no longer be eligible for AIP
assistance from the noise set aside.
Accordingly beginning (not more than 12 months from the date of
issuance of a revised policy), the FAA will approve under part 150 only
remedial land use measures for existing noncompatible development and
only preventive land use measures in areas of potential new
noncompatible development. As of the same date, criteria for
determining AIP eligibility under the noise set aside that are
consistent with this policy will be applied by the FAA. Specifically,
no remedial land use measures for new noncompatible development that
occur after the effective date of the revised policy be eligible for
AIP funding under the noise set aside, regardless of previous FAA
determinations under part 150, the status of an individual airport's
part 150 program, or whether the project is eligible for AIP funding
under the noise set aside without a part 150 program.
Alternatives to the Proposed Policy
Depending on the comments received in response to this proposal,
the FAA will consider several alternatives to the proposed policy
revision, as listed below. All comments received on these alternatives,
as well as other suggestions, will be considered prior to the adoption
of any policy revision. Comments should focus on the extent to which an
alternative would assist in preventing the development of new
noncompatible land uses around airports and in assuring cost effective
use of Federal funds spent on land use measures for noise purposes.
1. Retain the present policy of approving and funding under part
150 remedial land use measures without regard to the date the
noncompatible development occurs.
2. Retain the present policy of approving and funding under part
150 remedial land use measures for those areas not under the control of
either the airport of the airport's sponsor and for which the airport
operator has taken earnest but unsuccessful steps to persuade the
controlling jurisdiction to prevent the addition of new noncompatible
development. New noncompatible development in areas under the land use
control jurisdiction of either the airport or the airport operator
would not be approved under part 150 nor be eligible for funding under
the AIP.
3. Retain the present policy only with respect to noncompatible
land uses that will remain within the DNL 65 dB contour after the
transition to an all Stage 3 fleet.
4. Retain the present policy with respect to part 150 approval, but
eliminate Federal funding eligibility for remedial measures for new
noncompatible development.
5. Implement the proposed policy on an airport-by-airport basis,
selecting either the date of the FAA's acceptance of an airport's noise
exposure maps or the date of the FAA's approval of an airport's noise
compatibility program under part 150. Includes consideration of whether
implementation should be retroactive or prospective.
Issued in Washington, DC on March 14, 1995.
Paul R. Dykeman,
Acting Director of Environment and Energy.
[FR Doc. 95-6754 Filed 3-17-95; 8:45 am]
BILLING CODE 4910-13-M
