Comments on Air Tour Management Plans for Golden Gate National Recreation Area, Muir Woods National Monument, Point Reyes National Seashore, and San Francisco Maritime National Historical Park

November 10, 2021

(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, 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 GOGA, PORE, and SAFR 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, the existing level of harm has not been characterized. Furthermore, it is very doubtful that the ATMP 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. NPS’s 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 publishenvironmental 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.

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, and prompted further legal action against NPS and the FAA. NPS’s mismanagement of “the process” to date has detracted significantly from what should actually be a healthy public discourse on the content and substance of the ATMPs.

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. NPS has 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, NPS has stated that they have “identified NPS Categorical Exclusion (CE) 3.3 A1 (“Changes or amendments to be 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 the NPATMA and by the Court, it is quite curious why the NPS would consider a pre-existing air tour to be a previously “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, the NPATMA was passed, in part, to create a mechanism for NPS to have a formal role in the ATMP approval process, which NPS has heretofore never exercised. Similarly, there never has been any NEPA review conducted by any federal agency (e.g., neither NPS nor the FAA) 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, which rendered it impossible for the agency to conduct any NEPA review related to the IOAs. In fact, 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 # 3: 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 the Bay Area parks 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.”
See
https://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 # 4: 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, the 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, hours of operation, 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 continue, but have not been actively managed or regulated in any meaningful way.

Preparation of this ATMP under the NPATMA now provides the NPS with its first real opportunity to decide whether to authorize and manage air tours at the respective Bay Area parks 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 any amount of air tours should be allowed or prohibited at each of the respective Bay Area parks.

Comment # 5: 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. Yet the ATMP provides no acknowledgment or analysis of the noise impacts of current air tours on resources and values at the Bay Area parks.

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 frontcountry 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 the Bay Area parks, 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. 91-36D¹https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC_91-36D.pdf 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.

As a result of these concerns about noise impacts, the FAA recommends that: “Avoidance of noise-sensitive areas, if practical, is preferable to overflight at relatively low altitudes”; and “[p]ilots operating noise producing aircraft (fixed-wing, rotary-wing and hot air balloons) over noise sensitive areas should make every effort to fly not less than 2,000 feet above ground level (AGL), weather permitting.” (Emphasis added.) See FAA AC No. 91-36D, section 8.

The implication of these many studies, recommendations, 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 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. It is equally puzzling that NPS has not offered any alternatives for public consideration that are designed to markedly reduce the existing level of air tour noise impacts.

Comment # 6: 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 authorize 2,548 commercial air tours per year over GOGA and SAFR, including 1,280 helicopter tours and 1,125 airplane tours. Of the latter, only 143 commercial airplane tours may fly over PORE. No commercial air tours would be authorized over Muir Woods National Monument. The flights allowed over GOGA and SAFR would be conducted by two air tour operators using 11 different flight routes; and over PORE by 1 operator using 1 route.

At the parks, air tours conducted with fixed wing aircraft will fly no lower than 1,500 to 2,500 feet (ft) AGL, depending on location over the Parks. Air tours conducted with helicopters will fly no lower than 1,000 to 1,500 ft AGL, depending on location over the Parks. All commercial tours will fly no lower than 2,000 ft AGL over land-based wilderness and maintain at least 1,000 ft lateral avoidance of Alcatraz Island and 1,000 ft lateral avoidance of nesting shorebird colonies, peregrine falcon nests or marine mammal haul outs.

In contrast to the above altitude requirements proposed by the NPS, the FAA recommends that pilots fly not less than 2,000 ft AGL over “noise sensitive areas,” including units of the National Park System and wilderness areas. See Comment # 5 above and FAA AC No. 91-36D. For NPS to propose allowing several thousand air tour flights to occur annually over the Bay Area parks at less than the FAA recommended 2,000 ft AGL is ill-conceived and incongruous with the NPS conservation mandate. At the very least, NPS should fully consider an alternative that adopts the FAA “recommendation” of 2,000 ft AGL as a “requirement” for commercial air tours over these parks.

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. “40% phased reduction of air tours over a 4 year period” alternative – Under this alternative, the number of air tours allowed would be reduced by 10% of the original total of 2,548 (i.e., 259) each year for 4 years, resulting in a total of 1,512 flights allowed after the 4-year 40% phased reduction period. At PORE, the number of air tours allowed would be reduced by 14 each year times 4 years, resulting in a total of 87 flights per year after the 4-year phased reduction period. The reduced numbers of air tours available would be distributed proportionately among the two tour operators based upon their current allotments of flights. Once reached, the reduced number of flights (1,512 at GOAG and SAFR; and up to 87 at PORE) would remain in effect until the ATMP is formally updated or amended.

Rationale – The justification for implementing a “40% 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.
  • Reducing the number of flights permitted is a practical way to reduce overall air tour noise impacts to wildlife and to the visitor experience.
  • Parks with higher numbers of air tours generally need the greatest amount of relief from air tour noise impacts. A progressive phased reduction in the number of air tours, based on the current number of allowable tours, is a systematic way to provide such relief. See “Note” below.
  • At PORE, approximately 46% of the Park is managed as wilderness, which includes many of the park’s 150 miles of hiking trails. Reducing the number of flights permitted is a practical way to reduce air tour noise impacts to wilderness character.
  • A 40% reduction in the number of air tours at the Bay Area parks is consistent with the NPS’s stated management objectives related to this ATMP.
  • Phasing the reduction of air tours over a 4-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.

Note: In general, the Coalition supports an action alternative methodology that would provide a “progressive phased reduction” of air tours based on the parameters described below. The Bay Area parks fall within the middle category, based on the current numbers of air tours occurring:

• For parks currently with 500-999 air tour flights per year, reduce the total number of flights allowed by 30% at a rate of 10% per year* for 3 years (for a total reduction of 30% after 3 years). *Note: Each annual reduction would be based on 10% of the original total number of flights, not on each subsequent year’s reduced number.
• For parks currently with 1001-4,999 air tour flights per year, reduce the number of flights allowed by 10% per year for 4 years (for a total reduction of 40% after 4 years).
• For parks currently with 5,000 or greater flights per year, reduce the number of flights allowed by 10% per year for 5 years (for a total reduction of 50% after 5 years).

C. “Reduction of air tours through attrition” alternative – Under this alternative, air tours at the Bay Area parks would be incrementally reduced if either air tour operator closes its business, sells its business, or otherwise ceases operations. Should that happen, the operator’s allotment of air tours would be reduced by 50% before New Entrants would be permitted. To describe this alternative, the following section should be added to the ATMP:

• (add) Section 3.7F Annual Allocation Adjustment: If either current air tour operator closes its business, sells its business, or otherwise ceases operations, then the former operator’s allotment of air tours would be automatically reduced by 50%. Prior to being authorized to conduct air tours at that 50% reduced level, a successor purchaser of an air tour operator’s business must apply as a New Entrant in accordance with Section 6.0. In the event of no successor operator, the FAA and NPS may, at their discretion, conduct a competitive bidding process, as described in Section 7.0, in order to award the 50% remaining flights to a new operator.

Rationale – The justification for implementing a “reduction 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 Bay Area parks.
• Reduction of air tours at Bay Area parks through attrition and the resulting reduction in noise impacts is consistent with the NPS’s stated management objectives related to this ATMP.

D. Alternative that would adopt the FAA’s “recommendation” that pilots fly at least 2,000 ft. AGL over “noise sensitive areas” as a “requirement under this ATMP. (See AC No. 91-36D.) – We have discussed this concern earlier in this letter. In brief, it is utterly perplexing why NPS would not at least consider an alternative adopting the FAA’s recommendation that pilots fly at least 2,000 ft. AGL over national parks and wilderness areas. After all, the NPS, not the FAA, is responsible for protecting park resources and values under the Organic Act’s conservation mandate.

Comment # 7: Section 3.2 Commercial Air Tour Routes.

We are concerned about unnecessary and avoidable impacts of the proposed air tour route over portions of Point Reyes NS, as indicated in ATMP Figure 2 below:

We propose the route be revised as follows:

• Delete leg 6 to 7 to avoid crossing the Point. Keep the flight path offshore. Re-direct flight path from 6 directly south to rejoin leg 8;
• Delete leg 5. Re-direct leg 3 and 4 and at Bolinas Ridge go directly south to pick up at leg 10 on the southeast edge of solid line;

Justification: This revised route capitalizes on NOAA’s published regulations for the Greater Farallones National Marine Sanctuary²https://nmsfarallones.blob.core.windows.net/farallones-prod/media/archive/manage/pdf/80fr13078.pdf; and provides air tour passengers with equal views of the coastline. In addition, these adjustments to the proposed route would avoid all sensitive habitat at the Point thereby reducing impacts to harbor seals and nesting seabirds; and would also reduce noise impacts to the Phillip Burton Wilderness Area.

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 # 9: 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 PORE. 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 # 10: 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 # 11: 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 implemented. 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?

In other words, 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 in the future based on existing compliance when that compliance does not yet exist is disingenuous. 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, NPS and the FAA are over 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 ATMP requirements under the NPATMA of 2000.

Our biggest concern is that, with each new ATMP NPS has issued, it has become increasingly clear that NPS has engineered the planning process to reach a specific and essentially predetermined outcome, which is to ratify air tours more or less as they currently exist. For such a controversial, litigious, and longstanding issue, it would have been prudent for NPS to diligently follow well-established NEPA procedural norms (i.e., by “taking a hard look” at alternatives and impacts of alternatives), as described in the NPS NEPA Handbook 2015 and summarized in our comments above. These norms include: conducting public scoping to invite input on possible alternatives and concerns; fully considering a range of reasonable alternatives for the ATMP; and disclosing potential impacts of each alternative considered, including the proposed action. At the end of the day, NPS’s best defense in future legal challenges to the ATMPs would be to ensure a valid planning process has occurred that is consistent with NEPA and other procedural requirements. However, the NPS planning effort thus far falls well short of being defensible.

Last but not least, we urge NPS to turn management of the ATMP planning process over to experienced NEPA project manager(s) at the NPS Environmental Quality Division (EQD). The ongoing appearance that NPS has “engineered” the planning process to reach a specific and essentially predetermined outcome (which is to ratify existing air tours) is becoming increasingly problematic. The ATMPs will not withstand further legal scrutiny if the planning process is not valid.

We appreciate the opportunity to comment on this important issue.

Sincerely,

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

cc:
Shawn Benge, Acting Director, National Park Service
Cindy Orlando, Acting Regional Director, Regions 8, 9, 10, and 12, National Park Service
Ray Sauvajot, Associate Director, Natural Resource Stewardship and Science, NPS
Karen Trevino, Chief, Natural Sounds and Night Skies Division, NPS