CPANP Letterhead

 

October 1, 2021

Ms. Patricia Trap, Superintendent
National Park Service
Southeast Utah Group
2282 Resource Blvd.
Moab, UT 84532

Subject: Comments on Canyonlands National Park Proposed Air Tour Management Plan

Dear Superintendent Trap:

I am writing on behalf of over 1,900 members of the Coalition to Protect America’s National Parks (Coalition), whose membership is comprised of retired, former, or current National Park Service (NPS) employees. As a group we collectively represent over 40,000 years of experience managing and protecting America’s most precious and important natural and cultural resources. Among our members are former NPS directors, regional directors, superintendents, resource specialists, rangers, maintenance and administrative staff, and a full array of other former employees, volunteers, and supporters.

On behalf of our membership, we offer the following comments for your consideration regarding the proposed Air Tour Management Plan (ATMP) for Canyonlands National Park (CANY).

I. INTRODUCTION

The National Parks Air Tour Management Act of 2000 (the Act or NPATMA) requires the Federal Aviation Administration (FAA), in cooperation with the National Park Service (NPS), to develop an Air Tour Management Plan (ATMP) for each park or tribal land where air tour operations occur or are proposed. While the FAA has the sole federal authority to regulate airspace over the United States, at its core the NPATMA is a park protection law. It requires the agency of authority, the FAA, to cooperate with the NPS to jointly develop ATMPs “to mitigate and prevent the significant adverse impacts, if any, of commercial air tour operations upon the natural and cultural resources, visitor experiences, and tribal lands.” It is noteworthy that the NPATMA does not mandate that air tours are to occur over national parks. In fact, Section 40128(b)(3)(A) of the Act states, in part: “An air tour management plan for a national park… may prohibit commercial air tour operations in whole or in part.”

In contrast, the NPS Organic Act of 1916, as amended, and related management policies establish the NPS “conservation mandate” that should govern the agency’s decision process regarding park air tours. The 1916 Organic Act described the fundamental purpose of parks, which is to “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” See U.S.C., title 16, sec. 1.

In 1978, Congress clarified and reaffirmed the Organic Act, through the “Redwoods Amendment” (92 Stat 166) to the 1970 General Authorities Act (84 Stat. 825). The Redwoods amendment stated that “The authorization of activities shall be construed and the protection, management, and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established, except as…directly and specifically provided by Congress.” (Emphasis added.)

Section 1.4.2 of NPS Management Policies 2006, titled “Impairment and Derogation: One Standard,” states, in part: “Congress intended the language of the Redwood amendment to… reiterate the provisions of the Organic Act, not create a substantively different management standard. The House committee report described the amendment as a “declaration by Congress” that the promotion and regulation of the national park system is to be consistent with the Organic Act. The Senate committee report stated that under the Redwood amendment, “The Secretary has an absolute duty, which is not to be compromised, to fulfill the mandate of the 1916 Act to take whatever actions and seek whatever relief as will safeguard the units of the national park system.” (Emphasis added.)

Management Policies Section 1.4.3, titled “The NPS Obligation to Conserve and Provide for Enjoyment of Park Resources and Values,” states, in part: “The fundamental purpose of the national park system, established by the Organic Act and reaffirmed by the General Authorities Act, as amended, begins with a mandate to conserve park resources and values. This mandate is independent of the separate prohibition on impairment and applies all the time with respect to all park resources and values, even when there is no risk that any park resources or values may be impaired… Congress, recognizing that the enjoyment by future generations of the national parks can be ensured only if the superb quality of park resources and values is left unimpaired, has provided that when there is a conflict between conserving resources and values and providing for enjoyment of them, conservation is to be predominant. This is how courts have consistently interpreted the Organic Act.(Emphasis added.)

In addition, the Wilderness Act (16 U.S.C. 1133(b)) directs that “each agency administering any area designated as wilderness shall be responsible for preserving [its] wilderness character.” Wilderness character is the combination of biophysical, experiential, and symbolic ideals that distinguishes wilderness from other lands. The five qualities of wilderness character are (1) untrammeled, (2) undeveloped, (3) natural, (4) offers outstanding opportunities for solitude or primitive and unconfined recreation, and (5) other features of scientific, educational, scenic, or historical value.” See NPS Director’s Order # 41 Wilderness Stewardship (DO-41), Section 6.2.

Section 6.10 of DO-41 states, in part: “Opportunities to hear the sounds… are important components of wilderness character. Experiencing natural soundscapes…unmarred by human-caused noise… is critical to the primeval character of wilderness, giving the visitor a sense of remoteness and solitude… Anthropogenic noise… travel[s] long distances. In many wilderness areas, the only perceptible human influence on the landscape is the noise… from human activity, often occurring many miles away. Effective management of wilderness should involve careful attention to these important resources.” (Emphasis added.)

Under NPS Wilderness Stewardship guidance, “the term ‘wilderness’ includes the categories of eligible, proposed, recommended, and designated. Potential wilderness may be identified within the proposed, recommended or designated categories.” See DO-41, Section 1. It is NPS policy to manage any of the above categories of wilderness as if they were designated wilderness. Undoubtedly the single greatest impact of national park commercial air tours on wilderness character is the introduction of manmade mechanical noise from above into otherwise primitive and remote locations on the ground. For these reasons, we believe that park managers must give “careful attention” to minimizing air tour noise over park wilderness areas, as directed by NPS wilderness management policies. We will recommend alternatives for how to reduce air tour noise over wilderness in comments below.

Now, after 20 years of inaction and controversy since the passage of NPATMA, successful litigation has compelled NPS and the FAA to finally prepare ATMPs to address the adverse impacts of commercial air tours over certain national parks as required under the law. The current ATMP planning process provides NPS with its first real opportunity to have a say in how commercial air tours operate over units of the National Park System (i.e., the parks not excluded under the NPATMA).

The day of reckoning for the NPS regarding commercial air tours has come. Will the NPS live up to its “absolute duty, which is not to be compromised, to fulfill the mandate of the 1916 Act to take whatever actions and seek whatever relief as will safeguard the units of the national park system” as described in the Senate report for the Redwoods amendment? Will the NPS fulfill its mandate “to conserve park resources and values,” which “applies all the time with respect to all park resources and values, even when there is no risk that any park resources or values may be impaired” – a mandate that is separate from the prohibition on impairment, as described in Management Polices Section 1.4.3?  (Emphasis added.) Or will NPS follow the path of least resistance and allow air tours to continue to operate more or less the same as before, but maybe with a few new operating conditions, then rationalize that such action would not cause “impairment” of park resources and values, so it must be okay, right?

We know what we would do if we were in charge. We hope that the NPS will affirmatively follow its own mandates and policies and develop appropriate ATMPs that will markedly reduce air tour noise impacts and improve resource conditions in parks that have been adversely affected by commercial air tours during these past 20 years of inaction.

II. PARK OVERVIEW (adapted from Section 2.1 of the proposed ATMP)

Established by act of Congress in 1964, Canyonlands National Park preserves 337,598 acres of colorful canyons, mesas, buttes, fins, arches, and spires in the heart of southeast Utah’s high desert. The confluence of the Colorado and Green Rivers lies within the Park, dividing the Park into four distinct districts: The Needles, Island in the Sky, The Maze, and The Rivers of Canyonlands. The Park protects a striking geologic landscape composed of a diverse and multilayered assemblage of canyons, mesas, buttes, and spires, as well as many notable features of great scientific interest including Grabens and Upheaval Domes.

Approximately 85% of the land area of the Park is recommended wilderness and managed by NPS to preserve wilderness character, pursuant to the 2006 NPS Management Policies. Parts of the Park backcountry are free from human-caused sounds and natural sounds of the desert are predominant in these areas, providing opportunities to experience quiet and solitude in a remote natural setting.

Federally designated threatened and endangered species have been identified within the Park, including the Mexican spotted owl, southwestern willow flycatcher, and yellow billed cuckoo. Other notable wildlife within the Park includes bighorn sheep, birds of prey and other migrating birds, lizards, and rodents, many of which are either nocturnal or crepuscular (most active at dawn and dusk) in order to adapt to life in the desert environment within the Park.

Cultural resources in the Park span at least 10,000 years of human occupation and activity. The Park contains petroglyphs, pictographs, masonry structures, and other traces of Indigenous people who settled within the Park. The Salt Creek and Horseshoe Canyon Archaeological Districts contain significant world-class archaeological resources as well as sites of rock imagery, including the Great Gallery, an archetype of Barrier Canyon style pictographs. Numerous Native American tribes traditionally associate with the landscapes within the Park. The Park also contains many other historic properties, including twelve sites, one Historic District, and one Cultural Landscape listed on the National Register of Historic Places.

The Park offers a variety of recreational experiences including sightseeing, viewpoints and photography, hiking, interpretation, picnicking, camping, flatwater and white-water boating, and horseback riding for more than 73,000 annual visitors. The Park is primarily a backcountry park with limited accessibility. The purpose of the Park is to preserve striking geologic landscapes and associated ecosystems in an area encompassing the confluence of the Green and Colorado rivers possessing superlative scenic, scientific, and cultural features for the inspiration, benefit, and use of the public.

The following Park management objectives relate to the development of this ATMP:

• Protect individuals and populations of wildlife species known to be sensitive to the effects of aircraft overflights, including several species of diurnal raptors (such as the golden eagle and peregrine falcon) and the federally listed Mexican spotted owl, southwestern willow flycatcher, and the western yellow-billed cuckoo, as well as desert bighorn sheep, mule deer, mountain lion, black bear.
• Protect cultural resources and related cultural landscapes and ethnographic resources, such as viewscapes, that are important to Native American Tribes associated with the Park.
• Protect remote experiences for visitors and opportunities to experience quiet and solitude in a remote natural setting.

III. COMMENTS

With the above information as context, we offer the following comments about the proposed ATMP:

Comment # 1: Given the longstanding concerns and controversy regarding the impacts of air tours over national parks and the FAA and NPS’s 20 years of inaction in addressing them, the agencies’ significant departure from standard National Environmental Policy Act (NEPA) planning procedures raises major concerns about the credibility and legitimacy of agencies’ planning process.   

The planning process being followed by NPS and the FAA (“the agencies”) thus far is nearly unrecognizable to those of us NPS retirees who spent decades working on various NPS management plans and related National Environmental Policy Act (NEPA) compliance documents. Numerous significant shortcomings in the NEPA process include the following:

A. The agencies have issued a proposed action (the “plan”) for public comment without disclosing potential impacts or providing any environmental impact analysis regarding that proposed action.

B. The agencies have failed to conduct public scoping or otherwise consider reasonable alternatives to the proposed action.

C. The NPS has not made the case that its proposed action will effectively “mitigate” the adverse impacts of ongoing air tours at CANY that have been operating virtually unregulated over the past 20 years.

D. The agencies stated intention is to finalize the action (i.e., the ATMP) before actually issuing an appropriate level NEPA analysis of the action’s potential impacts violates well-established NEPA procedural requirements.

E. The agencies have improperly identified NPS categorical exclusion 3.3 A1 (“Changes or amendments to an approved action when such changes would cause no or only minimal environmental impact”) as the preliminary NEPA pathway for this ATMP.

We will elaborate on these concerns below.

A. The agencies have issued a proposed action (or “plan”) for public comment without disclosing potential impacts or providing any environmental impact analysis regarding the proposed action.

CEQ NEPA implementing regulations at 40 CFR §1501.2(b)(2) require Federal agencies to “[i]dentify environmental effects and values in adequate detail so the decision maker can appropriately consider such effects and values alongside economic and technical analyses. Whenever practicable, agencies shall review and publish environmental documents and appropriate analyses at the same time as other planning documents.” (Emphasis added.) Seehttps://www.law.cornell.edu/cfr/text/40/1501.2.

Similarly, NPS NEPA policies are described in its NEPA Handbook 2015. Section 1.4.A. Characteristics of NEPA Review, states, in part: “NEPA requires analysis and disclosure of the impacts an agency’s actions would have on the human environment” (see p. 13); and “The CEQ regulations state that agencies must apply NEPA early in the planning and decision-making process (1501.2). The NEPA process should begin when the NPS has a goal for which it is actively preparing to make a decision and has developed a proposal to the point where its environmental impacts can be meaningfully analyzed (1508.23; 46.100(b))” (see pp. 14-15). (Emphasis added.)  Seehttps://www.nps.gov/subjects/nepa/upload/NPS_NEPAHandbook_Final_508.pdf.

In addition, FAA’s NEPA policies are described in Order 1050.1F. Section 1-8 of the Order states, in part: “The FAA decision-making process must consider and disclose the potential impacts of a proposed action and its alternatives on the quality of the human environment… The FAA must integrate NEPA and other environmental reviews and consultations into agency planning processes as early as possible.” Section 2-3.1 states, in part: “Environmental issues should be identified and considered early in a proposed action’s planning process to ensure efficient, timely, and effective environmental review.”  Section 2-5 states, in part: “NEPA and the CEQ Regulations, in describing the public involvement process, require Federal agencies to: consider environmental information in their decision-making process; solicit appropriate information from the public; fully assess and disclose potential environmental impacts resulting from the proposed action and alternatives; and provide the public with this information and allow it to comment on these findings.” (Emphasis added.) Seehttps://www.faa.gov/documentLibrary/media/Order/FAA_Order_1050_1F.pdf.

In other words, by issuing the “plan” for public comment without releasing the “compliance,” the agencies have violated a basic principle of NEPA, which is to disclose potential impacts of a proposed action when asking the public to comment on that action. To make matters worse, the agencies have provided no explanation for this significant departure from NEPA procedural norms.

B. The agencies have failed to conduct public scoping or consider a “range of reasonable alternatives” to the proposed action.

The NPS NEPA Handbook 2015, Section 4.2, encourages the agency to engage “the interested and affected public early in the process on matters related to the proposed action, environmental issues that should be addressed, potential alternatives, and sources of data that should be considered.” Section 4.2 also encourages NPS to identify “a preliminary range of alternatives or preliminary alternative elements, including the proposed action that NPS intends to consider, at the public scoping phase” because “[i]ncluding such information can enhance the value of public scoping comments and create efficiencies by allowing you to address the public’s concerns about a proposed action and alternatives while you are still developing them, rather than waiting until a proposal and alternatives are fully developed.”  (Emphasis added.)

As described in the Handbook, Section 4.3, “The term ‘range of alternatives’ refers to the set of all reasonable alternatives as well as other alternatives considered but eliminated from detailed analysis (46.420(c).” “Alternatives are distinguished based on differences in their approach to resolving the purpose and need for action and the environmental impacts of implementing them.” “Reasonable alternatives are those alternatives that meet the purpose and need for action and are technically and economically feasible (46.420(b)).” “Reasonable alternatives must be rigorously explored and objectively evaluated during the decision-making process (1505.1(e); 46.420(c)).”  (Emphasis added.)

In brief, it is the NPS’s responsibility (not the public’s) to identify a preliminary range of alternatives or alternative elements for the public to comment on; and/or to conduct public scoping to solicit, among other things, public input on possible alternatives. Neither has occurred in this case.

C. The NPS has not made the case that its proposed action will effectively “mitigate” the adverse impacts of ongoing air tours at CANY that have been operating virtually unregulated over the past 20 years.

As defined in the Council on Environmental Quality (CEQ) NEPA implementing regulations, “Mitigation” means measures that avoid, minimize, or compensate for effects caused by a proposed action or alternatives as described in an environmental document or record of decision and that have a nexus to those effects. While NEPA requires consideration of mitigation, it does not mandate the form or adoption of any mitigation. Mitigation includes:

(1) Avoiding the impact altogether by not taking a certain action or parts of an action.

(2) Minimizing impacts by limiting the degree or magnitude of the action and its implementation.

(3) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.

(4) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.

(5) Compensating for the impact by replacing or providing substitute resources or environments.

(Emphasis added.) See 40 CFR Part 1508.

By not providing a NEPA review to evaluate potential impacts of the proposed action as well as other reasonable alternatives, the NPS has not provided any information or evidence, much less persuasive evidence, that its proposed action would significantly reduce air tour noise impacts that have been occurring over CANY during the past 20 years. There are relatively few and fairly benign operating conditions proposed in the ATMP, which suggests the proposed action would not increase the existing level of harm caused by air tours. However, in the absence of any impact analysis, it seems doubtful that the plan would result in a marked reduction in air tour noise or a demonstrable improvement in resource conditions, particularly in park areas managed as wilderness.

Given the NPS conservation mandate, the burden is placed on the Park Service to make the case that its proposed action (the ATMP) will effectively conserve park resources and values, not just prevent impairment. However, based on the documentation released to date, the NPS has not presented any impact analysis or other credible evidence to support its proposal.

D. The agencies stated intention is to finalize the action (i.e., the ATMP) before actually issuing an appropriate level NEPA analysis of the action’s potential impacts. This sequencing violates well-established NEPA procedural requirements.

40 CFR § 1501.2 of the CEQ NEPA implementing regulations requires federal agencies to apply NEPA early in the planning process. Sub-section (a) states: “Agencies should integrate the NEPA process with other planning and authorization processes at the earliest reasonable time to ensure that agencies consider environmental impacts in their planning and decisions, to avoid delays later in the process, and to head off potential conflicts.” (Emphasis added.) Sub-section (b)(2) states, in part: “Each agency shall… Whenever practicable, agencies shall review and publish environmental documents and appropriate analyses at the same time as other planning documents.” (Emphasis added.)

Similarly, the NPS NEPA Handbook 2015, Section 1.4 A. Characteristics of NEPA Review, states, in part: “While various aspects of planning may take place prior to initiating the NEPA process, the appropriate level of NEPA review must be completed before the NPS takes an action that has the potential to affect the quality of the human environment” (see p. 12); “NEPA requires analysis and disclosure of the impacts an agency’s actions would have on the human environment” (see p. 13); and “The CEQ regulations state that agencies must apply NEPA early in the planning and decision-making process (1501.2). The NEPA process should begin when the NPS has a goal for which it is actively preparing to make a decision and has developed a proposal to the point where its environmental impacts can be meaningfully analyzed (1508.23; 46.100(b))” (see pp. 14-15). (Emphasis added.)  See https://www.nps.gov/subjects/nepa/upload/NPS_NEPAHandbook_Final_508.pdf.

            In sum, finalizing the plan before preparing the NEPA analysis, as NPS has repeatedly stated it plans to do, is fundamentally flawed and violates fundamental NEPA process requirements. Inevitably, these flagrant “process flaws” have become the center of public attention and comment, when the focus really should be on the substance of the proposed action and its comparison to other alternatives. Our collective experience tells us that the current planning process will not withstand legal scrutiny and NPS should make an immediate course correction to address these process concerns.

Lastly, we strongly recommend that NPS turn over coordination of the planning effort itself to a highly qualified NEPA project manager at the NPS Environmental Quality Division (EQD).While there is no doubt the Natural Sounds Program staff has expertise when it comes to acoustic science and the technical content and substance of the proposed ATMPs, the significant flaws in the planning process to date raise doubts about the staff’s knowledge and ability to manage the NEPA process and other compliance requirements (NHPA, ESA, etc.).

E. The agencies have improperly identified NPS categorical exclusion 3.3 A1 (“Changes or amendments to an approved action when such changes would cause no or only minimal environmental impact”) as the preliminary NEPA pathway for this ATMP.

In multiple communications, the NPS has stated that they have “identified NPS Categorical Exclusion (CE) 3.3 A1 (“Changes or amendments to an approved action when such changes would cause no or only minimal environmental impact”) from the NPS National Environmental Policy Act Handbook as the preliminary NEPA pathway for the ATMP.”

Given the history of this issue as well as the directives provided in NPATMA, it is quite curious why the NPS would consider a pre-existing air tour to be an “approved action” eligible for NPS CE 3.3 A1. While there is no formal definition of “approved action” in the CEQ NEPA implementing regulations (see 40 CFR § 1508.1), the issue’s history and common sense tells us that NPS has never formally “approved” national park air tours in the first place (i.e., has never signed or had the authority to sign, or otherwise “approved” authorizations, permits, plans or other documents allowing national park air tours to occur). In fact, NPATMA was passed, in part, to create a mechanism for NPS to have a formal role in the ATMP approval process. Similarly, there never has been any NEPA review conducted by any federal agency of the existing air tour operations. In simple terms, (No Previous Authority to Approve) + (No Previous NEPA review) = (No previously “Approved Action”) that would support the use of NPS CE 3.3 A1.

Under NPATMA, an IOA was intended as a stopgap “authorization” of an existing air tour pending completion of an ATMP to determine if the air tour should be allowed; and, if so, what operating conditions should apply to mitigate the adverse impacts of air tours at any particular park. As explained in the June 23, 2005 FAA Federal Register Notice of Interim Operating Authority Granted to Commercial Air Tour Operators Over National Parks and Tribal Lands Within or Abutting National Parks, “[t]he Act requires that the FAA grant IOA to existing commercial air tour operators “[u]pon application for operating authority,” 49 U.S.C. 40128(c)(1), thus allowing these operators to continue to operate without a break in service.” The Notice further states,” [t]he requirement in the Act that the FAA grant IOA “upon application for operating authority” also makes impossible compliance with the National Environmental Policy Act. See, e.g., City of New York v. Mineta, 262 F.3d 169, 178 (2nd Cir. 2001).” (Emphasis added.)

In brief, the Act required the FAA to issue IOAs to any existing air tour operations upon application; while rendering it impossible for the agency to conduct any NEPA review. There was no choice nor any NEPA analysis involved when the FAA “authorized” the air tours to continue nearly 20 years ago. IOAs were clearly meant to serve only as temporary measures until the agencies could develop proper ATMPs and conduct an appropriate level of NEPA review to determine whether air tours at any particular park should be prohibited or allowed to continue under certain operating conditions, as provided under the NPATMA.

As a result, the NPS claim that an existing air tour is a previously “approved action” that justifies use of NPS categorical exclusion 3.3 A1 is simply not credible. Similarly, NPS’s expressed intent to categorically exclude the ATMP from a more robust level of NEPA review (such as an EA or EIS) is altogether unjustified. This further convinces us that the planning process for this project is seriously flawed.

Recommendation: We urge NPS to turn management of the ATMP planning process itself over to a highly qualified NEPA project manager at the NPS Environmental Quality Division (EQD).

Comment #2: Similar to the NEPA process concerns described above, the proposed ATMP provides no information regarding FAA and/or NPS compliance with Section 106 of the National Historic Preservation Act (NHPA), which should include consultation with potentially affected Native American Tribes.

Given the various significant cultural and historical resources at CANY identified in the “Park Overview” provided in Section 2.1 of the ATMP, and given the numerous references in the various status reports to the Court regarding Section 106 (NHPA) consultation with affected Tribes, the proposed ATMP surprisingly lacks any information regarding the results of such consultation. As described in CEQ’s NEPA implementing regulations and FAA and NPS NEPA policies, NHPA compliance and other forms of compliance with other applicable federal statutes (such as the Endangered Species Act) should be integrated into the NEPA document prepared for the same proposed action. Since there has been no NEPA document issued with the proposed ATMP, there obviously has been no integration of the required compliance processes, which violates various well-established NEPA process requirements.

First, CEQ regulation 40 CFR §1502.25 (a) states that “[t]o the fullest extent possible, agencies shall prepare draft environmental impact statements concurrently with and integrated with environmental impact analyses and related surveys and studies required by the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.), the National Historic Preservation Act of 1966 (16 U.S.C. 470 et seq.), the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), and other environmental review laws and executive orders.” (Emphasis added.)

Second, FAA Order 1050.1F, Section 2-4.4, requires FAA, when preparing a NEPA document on a proposed action that may impact Native American Tribes, to conduct government-to-government consultation with the Tribe(s) “in accordance with the requirements of FAA Order 1210.20, American Indian and Alaska Native Tribal Consultation Policy and Procedures.” Seehttps://www.faa.gov/about/office_org/headquarters_offices/arc/programs/grand_canyon_overflights/documentation/FAAOrder1210.20.pdf

Last but not least, Section 4.14 of the NPS NEPA Handbook 2015 states: “There are a variety of federal, state, and local environmental review and consultation requirements that can overlap with the NEPA process. The CEQ and DOI regulations direct that NEPA reviews should be integrated with analyses used to meet such other requirements.” (Emphasis added.)

To reiterate, since there is no NEPA review presented with the proposed ATMP, there is likewise no NHPA discussion or analysis nor any other evidence that Section 106 consultation requirements have been met. Our collective experience tells us that the current planning process is fundamentally flawed and will not withstand legal scrutiny unless NPS makes an immediate course correction in the planning process.

Recommendation: Again, we urge NPS to turn over management of the ATMP planning process itself to a qualified EQD project manager, who is highly experienced and capable of ensuring proper integration of multiple consultation and compliance requirements into one legally defensible planning document.

Comment # 3: The NEPA review for this ATMP should include an “appropriate use analysis,” as described in NPS Management Policies 2006, Sections 1.5 and 8.1.2.

As discussed previously, under the Organic Act and the Redwoods amendment the NPS has “a mandate to conserve park resources and values. This mandate is independent of the separate prohibition on impairment and applies all the time with respect to all park resources and values, even when there is no risk that any park resources or values may be impaired…Congress, recognizing that the enjoyment by future generations of the national parks can be ensured only if the superb quality of park resources and values is left unimpaired, has provided that when there is a conflict between conserving resources and values and providing for enjoyment of them, conservation is to be predominant. This is how courts have consistently interpreted the Organic Act.(Emphasis added.)  See Management Policies Section 1.4.3.

As stated previously, NPATMA mandated that the FAA grant Interim Operating Authority (IOA) for existing air tours over certain parks. An IOA does not provide any operating conditions (e.g., routes, altitudes, time of day, etc.) for air tours other than an annual limit. In essence, commercial air tours over those parks up until this point have been “allowed” to operate, but have not been actively managed or regulated in any meaningful way.

Preparation of this ATMP under NPATMA now provides the NPS with its first real opportunity to decide whether to authorize and manage air tours at CANY or to prohibit them. The fact that air tours have been previously occurring at the park does not automatically establish that those tours are, in fact, “appropriate” in the context of the NPS conservation mandate.

In fact, Congress contemplated that air tours over national parks may be inappropriate in some cases and therefore provided the agencies with the mechanism in the Act to address such situations. Section 40128(b)(3)(A) of the Act states, in part: “An air tour management plan for a national park…  may prohibit commercial air tour operations in whole or in part.” (Emphasis added.) However, the NPS has never formally considered whether air tours are an appropriate use over any park. This suggests that NPS has also never considered the basic question addressed in Section 40128(b)(3)(A) of the Act, which is whether air tours of any amount should be allowed or prohibited at any particular park.

Instead of assuming that previously existing air tours must be appropriate and then adopting the status quo number of air tours, as proposed in this ATMP, it is incumbent upon the NPS to prepare an “appropriate use analysis” as part of its planning document(s) to determine if such use should be allowed, and if so, under what operating conditions; or should air tours be prohibited as provided for in Section 40128(b)(3)(A) of the NPATMA.

Recommendation: As part of the planning process, NPS should prepare an “appropriate use analysis” in accordance with NPS Management Policies that serves, in part, as the basis for determining whether air tours of any amount should be allowed or prohibited at CANY.

Comment # 4: The adverse impacts of aircraft overflight noise on park resources and values, including wilderness, are well known. Noise is the primary adverse impact of air tours that requires the most direct management intervention to minimize or mitigate the adverse effects.

The adverse impacts of aircraft overflight noise on park resources and values are well known. In a 1994 “Report to Congress on Effects of Aircraft Overflights on the National Park System,” the NPS described multiple adverse impacts from aircraft noise, including the following:

  • Aircraft overflights can and do produce impacts both on visitors and on park resources.
  • Natural quiet is an important natural resource in units of the National Park System that can be adversely impacted by aircraft noise.
  • At historical and cultural sites, the setting, ambiance, feeling or association can be disrupted, and vibrations may be induced that can be damaging to structures.
  • The primary concern about low-level overflights related to wildlife is that the flights may cause physiological and/or behavioral responses that in turn reduce the wildlife’s fitness or ability to survive. Overflights may interfere with raising young, habitat use, and physiological energy budgets.
  • Visitors report interference with enjoyment, annoyance, and interference with appreciation of natural quiet, depending upon the levels of overflight sound which the visitors may have experienced. Backcountry visitors consistently show greater sensitivity to the sound of overflights than do front-country visitors.
    See –  https://www.nonoise.org/library/npreport/intro.htm#TABLE%20OF%20CONTENTS.

More recently, a 2017 article in Science reported that “noise pollution is now pervasive in U.S. protected areas,” such as national parks. Using continental-scale sound models, the investigators found that “anthropogenic noise doubled background sound levels in 63% of U.S. protected area units and caused a 10-fold or greater increase in 21%, surpassing levels known to interfere with human visitor experience and disrupt wildlife behavior, fitness, and community composition. Elevated noise was also found in critical habitats of endangered species, with 14% experiencing a 10-fold increase in sound levels.” (Emphasis added.) See https://www.science.org/doi/full/10.1126/science.aah4783.

The same study found that “12.1% of wilderness areas still experienced anthropogenic sound levels 3 dB above predicted natural levels, indicating that they are not entirely “untrammeled by man” as defined by the Wilderness Act (U.S. C. 1131-1136, sec. 3c, 1964). Wilderness areas are often remote sites with low background sound levels that enhance the audibility of distant sound sources; thus, minimizing the intrusion of anthropogenic noise in wilderness will require noise management at larger scales.” (Emphasis added.)

In addition, there are literally hundreds of research studies that have documented the impacts of noise, including aircraft noise, on wildlife. See “A synthesis of two decades of research documenting the effects of noise on wildlife”; Graeme Shannon et al; 26 June 2015. https://onlinelibrary.wiley.com/doi/10.1111/brv.12207.

Last but not least, even the FAA recognizes that national park units, such as CANY, as well as wilderness areas are “noise sensitive areas” that should be managed to minimize noise impacts. Previously cited FAA Order 1050.1F, p. 11-3, defines “noise sensitive area” as:

An area where noise interferes with normal activities associated with its use. Normally, noise sensitive areas includeresidential, educational, health, and religious structures and sites, and parks, recreational areas, areas with wilderness characteristics, wildlife and waterfowl refuges, and cultural and historical sites.” (Emphasis added.)

The issue of adverse impacts of excessive aircraft noise to “noise sensitive areas” is described in detail in FAA Advisory Circular (AC) No. 91-36D. Section 6.a. of the AC states, in part:

“Excessive aircraft noise can result in annoyance, inconvenience, or interference with the uses and enjoyment of property, and can adversely affect wildlife. It is particularly undesirable in areas where it interferes with normal activities associated with the area’s use, including residential, educational, health, and religious structures and sites, and parks, recreational areas (including areas with wilderness characteristics), wildlife refuges, and cultural and historical sites where a quiet setting is a generally recognized feature or attribute. Moreover, the FAA recognizes that there are locations in National Parks and other federally managed areas that have unique noise-sensitive values.” (Emphasis added.) See https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC_91-36D.pdf.  

The implication of these many studies and directives is that air tour noise over parks is one of the most significant environmental concerns about park air tours. In essence, aircraft noise is the primary adverse effect of air tours in terms of significance, context, and intensity that requires the most direct management intervention to reduce the adverse effects. As a result, it is critical that NPS and the FAA consider measures in the respective ATMPs that go well beyond simply rubber stamping the status quo. A much more appropriate objective of an ATMP for a unit of the National Park System such as CANY would be to actually improve resource conditions by markedly reducing the ambient level of air tour noise, especially in areas managed as wilderness.

Furthermore, the NPS Natural Sounds Program has a strong reputation for its technical capability to collect acoustic data in the field and to prepare credible scientific analysis of noise impacts. For example, that office has previously prepared Natural Sounds Acoustic Monitoring Reports for many of the parks required to issue ATMPs. See https://www.nps.gov/subjects/sound/acousticmonitoring_reports.htm.

In addition, we call your attention to a study published in the Journal of Forestry in 2016 titled, “A Framework to Assess the Effects of Commercial Air Tour Noise on Wilderness.” See https://doi.org/10.5849/jof.14-135. As you undoubtedly know, its authors include a number of NPS Natural Sounds Program staff. As described in the article:

Natural sounds are one of the many components of wilderness, and remoteness from sights and sounds of people has been identified as an indicator for the wilderness quality “solitude or primitive and unconfined recreation” (Landres et al. 2008, p. 7– 8). Further, natural sounds are a key attribute for how visitors define wilderness character (Watson et al. 2015), and wildlife depends on natural sounds for basic life functions (Barber et al. 2010). The addition of human-made noise degrades wilderness character by interfering with natural sounds (NPS 2006, Marin et al. 2011). Noise from commercial air tours is one source of noise that is known to occur in wilderness (Miller 2008, Lynch et al. 2011), and the consequences to visitor experience have been quantified (Mace et al. 2013, Rapoza et al. 2014).

Given the technical expertise of the Natural Sounds Program staff and the extensive body of scientific literature and other information available regarding the adverse impacts of aircraft noise on wildlife, wilderness characteristics, and visitor experience opportunities, it is quite puzzling that the NPS has provided no analysis with the ATMP regarding the potential noise impacts of the proposed action.

Comment # 5: As required under NEPA, NPS should fully consider a “range of reasonable alternatives” in addition to the proposed action.

 Per ATMP Sections 3.1 and 3.2, the Proposed Action would allow 101 air tours per year, based on the average number of flights that occurred in 2017-2019. This number of flights would all be conducted by one air tour operator using 7* different flight routes (*two of the seven routes maybe flown in either direction).  At the Park, air tours will fly no lower than 2,600 feet (ft.) AGL, referencing the topographic high-point within 1/2 mile of the flight path. The minimum altitude applies to the entirety of the routes.

In addition to considering the Proposed Action and a No Action Alternative, NPS should fully consider a range of reasonable action alternatives, including the following:

A. “No air tours” alternative – Under this alternative, low altitude commercial air tours would not be authorized under the ATMP. In effect, all air tours could only occur at least ½ mile outside of the park boundary or at least 5,000 ft. AGL above the park. This alternative is self-explanatory and would undoubtedly be considered “the environmentally preferable alternative” as defined under the CEQ NEPA implementing regulations.

B. “30% phased reduction of air tours over a 3 year period” alternative – Under this alternative, the number of air tours allowed would be reduced by 10% of the original total of 101 (i.e., 10) each year for 3 years, resulting in a total of 71 flights allowed for the one operator after the 3-year 30% phased reduction period. The reduced number of flights (71) would remain in effect thereafter until the ATMP is formally updated or amended.

Rationale – The justification for implementing a “30% phased reduction” alternative is as follows:

  • In accordance with CEQ, NPS and FAA NEPA implementing guidance, NPS is obligated to consider a range of reasonable alternatives for each ATMP. After 20 years of inaction, it is incumbent upon NPS to consider several action alternatives that would result in a marked decrease or elimination of air tour noise impacts compared to the proposed action.
  • Popular visitor activities include hiking, picnicking, photography, bird-watching, backpacking, and camping. Most visitors are day users and spend their time visiting archeological sites in Frijoles Canyon. Reducing the number of flights permitted is a practical way to reduce overall air tour noise impacts to the visitor experience.
  • Approximately 70% of the Park is managed as wilderness, which includes most of the park’s 70+ miles of trails. Reducing the number of flights permitted is a practical way to reduce air tour noise impacts to wilderness character.
  • A 30% reduction in the number of air tours at CANY is consistent with the park’s stated management objectives related to this ATMP.
  • Phasing the reduction of air tours over a 3 year period gives air tour operator a reasonable amount of time to adjust to the change. This may include offering “bird’s eye view” tours at 5,000+ ft. AGL or ½ mile outside the park boundary at a lower price point once “FAA and NPS approved low altitude” tours are reduced in number and less available.

C. “Reduction and eventual elimination of air tours through attrition” alternative – Under this alternative, air tours at CANY would be eliminated entirely if the sole operator closes its business, sells its business, or otherwise ceases operations. No New Entrants would be permitted. To describe this alternative, the following two sections of the ATMP should be added and revised respectively:

  • (add) Section 3.7F Annual Allocation Adjustment: If the sole air tour operator closes its business, sells its business, or otherwise ceases operations, then all air tours would be eliminated at CANY. Operating authority or allocations under this ATMP may not be assumed by a successor purchaser of an air tour operator’s business or transferred under any other circumstances.
  • (revise as follows) Section 6.0 New Entrants: For the purposes of this ATMP, a “new entrant” is a commercial air tour operator that has not been granted any operations under this ATMP. The management objectives of the Park include preservation of wilderness character and values, natural soundscapes, wildlife and visitor experience which supports phasing out commercial air tours through attrition, and therefore, the agencies will not consider applications from new entrant operators and will not authorize commercial air tours by a successor in interest to any of the operators identified in Table 1, by purchase, merger, or otherwise.

Rationale – The justification for implementing a “reduction and eventual elimination of air tours through attrition” alternative is as follows:

  • In accordance with CEQ, NPS and FAA NEPA implementing guidance, NPS is obligated to consider a range of reasonable alternatives for each ATMP. After 20 years of inaction, it is incumbent upon NPS to consider several action alternatives that would result in a marked decrease or elimination of air tour noise impacts compared to the proposed action.
  • The preservation of natural sounds, protection of natural and cultural resources, wilderness character, and preserving visitor experience by addressing air tour noise issues are priority NPS management objectives for the Park.
  • Reduction and eventual elimination of air tours at CANY through attrition is consistent with the park’s stated management objectives related to this ATMP.

Comment # 6:  Section 3.7 Additional Requirements

Section 3.7A of the ATMP provides that, “when made available by Park staff,” air tour pilots will attend at least one training course per year conducted by NPS staff. While we commend the intent of this provision, we are concerned that, as written (i.e., “when made available by park staff”), it sounds as if the park may choose to skip the training entirely. We believe it is essential that each air tour park actually provide such training.

We also believe it would be beneficial and appropriate to require air tour operators to inform and educate air tour passengers regarding the special places they are flying over. See recommendation below.

Recommendation: In addition to ensuring that the park provide annual pilot training, we recommend that NPS require air tour operators to provide air tour passengers with an educational brochure or rack card (e.g., jointly prepared by the FAA and NPS) that informs the public they will be flying over a noise sensitive area, which may include wildlife habitat, wilderness areas and cultural sites; and special restrictions (such as AGL requirements) are in effect to minimize the adverse impacts of aircraft noise on the environment below.

Comment # 7: Section 3.8 Quiet Technology Incentives

While we applaud the concept, this provision in the ATMP is meaningless if it cannot be defined and measured. We wonder if NPS intended for this section to adopt FAA Advisory Circular No. AC-93-2 guidance “for determining the…quiet aircraft technology designation status for each aircraft” used for air tours at Grand Canyon National Park; or some other FAA guidance?  See https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC-93-2.pdf.  If this is not the intended reference, then what is it?

Frankly, the reader (whether it is us, the interested public, or a prospective air tour operator) should not have to wonder what NPS means when it refers to “quiet technology aircraft” in the ATMP. NPS should define, either directly or by reference, the terminology used in the ATMP.

In addition, “quiet technology incentives” are not an adequate substitute for effective and direct management action to demonstrably reduce air tour noise over parks, especially parks with large areas managed as wilderness such as CANY. Direct action, such as decreasing the number of flights allowed through a phased reduction process or attrition are practical measures with immediate effect. In contrast, quiet technology incentives depend upon air tour operators voluntarily making significant financial commitments to replace their aircraft with newer models, which may never happen or could take years or decades to occur.

Recommendation: Section 3.8 of the ATMP should include a definition or at least a reference to FAA guidance defining what “quiet technology aircraft” is. For example, assuming the guidance NPS is referring to is correctly surmised above, the opening sentence of the section could be revised to state: “This ATMP incentivizes the adoption of quiet technology aircraft, (add) “as described in FAA Advisory Circular AC-93-2”, by the commercial air tour operator conducting commercial air tours over the Park.”

Comment #8: Section 6.0 New Entrants

Section 6.0 indicates that, in addition to existing air tour operators, New Entrants may be accommodated under the park’s ATMP. However, by not mentioning here the annual cap on the number of air tour flights that was established in Section 3.1, the ATMP seems to leave open the possibility that the total number of flights could be increased if/when additional operators are brought on board. We hope such an increase was not the NPS intent. Regardless, NPS should make it clear in Section 6.0 that the designated annual cap remains in effect no matter how many New Entrants are granted air tour permits.

Recommendation: To address this concern, we request that Section 6 be clarified to say that, “While the allotment of annual flights may be redistributed from existing operator(s) to accommodate new entrants, the cap on the total number of annual flights will remain the same as stated in Section 3.1 of the plan.”

Note: See Comment # 5.C. above regarding a proposed “reduction and eventual elimination of air tours through attrition” alternative. That alternative would allow no New Entrants, as described in the alternative’s proposed language in Comment # 5.C.

Comment # 9: Section 8 Adaptive Management

            This section indicates that minor modifications may be made to this ATMP in the future without a formal ATMPamendment “if the impacts of such changes are within the impacts already analyzed by the agencies under the NationalEnvironmental Policy Act, the National Historic Preservation Act, and the Endangered Species Act.” As described, such modifications may be made if: 1) the NPS determines they are necessary to avoid adverse impacts to Park resources, values, or visitor experiences; 2) the FAA determines the need for such changes due to safety concerns; or 3) the agencies determine that appropriate, minor changes to this ATMP are necessary to address new information or changed circumstances.

While we concur that a systematic adaptive management “program” is an appropriate approach for NPS to apply to air tours operations, this section of the ATMP is vague and unsystematic regarding how that process would be employed. For example, would there be a pre-defined and systematic adaptive management “program” with indicators, desired future conditions, periodic review time frames, or other metrics that would trigger an NPS review to determine if changes are needed to the ATMP, as is commonly done with many adaptive management programs? If so, what are those indicators or metrics?

It would be helpful if NPS would provide more detail about how it envisions the proposed adaptive management program would be implemented. Absent such information, this section of the ATMP comes across as if NPS is simply using “adaptive management” as a planning buzzword, rather than as a well-reasoned mechanism for modifying the plan if appropriate.

Last but not least, to repeat a recurring concern with this planning process, there has been no NEPA, NHPA, or ESA analysis presented to date with this ATMP. To say that the ATMP may be modified based on existing compliance when that compliance does not yet exist is premature. Asking the public to comment on a proposed federal action now without disclosing potential impacts of that action, as NPS and the FAA have done, is a fundamental flaw in this planning process. It is even more egregious for the agencies to suggest that they may make future modifications to the ATMP without any further compliance since the proper initial compliance is already lacking.

The proposal to modify the ATMP without additional NEPA compliance when no NEPA has been done and the lack of description of a well-reasoned adaptive management program related to this ATMP raise additional concerns about the management of this planning process in accordance with NEPA and other compliance requirements (NHPA, ESA, etc.).

Recommendation: The proposed adaptive management program must be adequately described in an appropriate level NEPA document.

IV. CLOSING COMMENT

In closing, the NPS and FAA are nearly half-way through the process of introducing proposed ATMPs for 23 parks as directed by the Court. Thus far the agencies’ unconventional approach of presenting the proposed action (the ATMP) for public comment in advance of and apart from the required compliance documents and without any analysis of alternatives has not been explained and is neither understandable nor acceptable. This is particularly concerning given the NPS’s and FAA’s 20 years of inaction in addressing air tour noise concerns, as required under NPATMA of 2000.

For such a significant and longstanding issue, the NPS and FAA flawed approach of separating the “plan” from the “compliance” sets a harmful procedural precedent for future planning efforts and is very likely to be counterproductive to the necessary completion of all the ATMPs by the court-approved deadline. It is likely that many of the public comments submitted on this proposed ATMP will focus on the major procedural flaws rather on the substantive details of the proposal. It is also very likely that this approach to NEPA compliance will invite further legal challenge, if not by the Petitioners in the existing case, then by other conservation groups who are equally concerned about the process.

Equally important, to ensure compliance with basic NEPA requirements NPS should fully consider a range of reasonable alternatives for the ATMP. Since NPS has offered no preliminary alternatives or alternative elements other than the proposed action, we have identified several reasonable alternatives in our comments above. It is highly likely that any of these alternatives would result in fewer, less significant, and less severe resource impacts than the NPS proposed action.

To be frank, the seriously flawed planning process to date raises doubts about the Natural Sounds Program staff’s ability to effectively manage this complex planning process in accordance with NEPA and other compliance requirements (NHPA, ESA, etc.). While we respect Program staff’s technical expertise regarding acoustic science and its application to conserving natural sounds, we urge NPS to turn management of this ATMP planning process itself over to an experienced NEPA project manager at the NPS Environmental Quality Division (EQD).

We appreciate the opportunity to comment on this important issue.

Sincerely,

Phil Francis Signature

 

 

 

Philip A. Francis, Jr., Chair
Coalition to Protect America’s National Parks
2 Massachusetts Ave NE, Unit 77436
Washington, DC 20013

cc:
Mike Reynolds, Regional Director, Regions 6,7, and 8, National Park Service
Ray Sauvajot, Associate Director, Natural Resource Stewardship and Science, NPS
Karen Trevino, Chief, Natural Sounds and Night Skies Division, NPS