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April 1, 2022

Ms. Natalie Gates, Superintendent
Haleakalā National Park
PO Box 369
Makawao, HI 96768

Subject: Potential Air Tour Management Plan (ATMP) Alternatives for Haleakalā National Park

Dear Superintendent Gates:

I am writing on behalf of over 2,200 members of the Coalition to Protect America’s National Parks (Coalition), who collectively represent more than 40,000 years of national park management experience. The Coalition studies, educates, speaks, and acts for the preservation of America’s National Park System. Among our members are former National Park Service (NPS) directors, regional directors, superintendents, resource specialists, rangers, maintenance and administrative staff, and a full array of other former employees, volunteers, and supporters.

We offer the following comments for your consideration regarding Potential Alternatives for the Air Tour Management Plan (ATMP) for Haleakalā National Park (HALE), as described in the Newsletter at: https://parkplanning.nps.gov/document.cfm?parkID=306&projectID=103365&documentID=118738.

GENERAL COMMENTS

  1. First and foremost, we greatly appreciate that HALE is conducting a proper planning process in accordance with Council of Environmental Quality (CEQ) National Environmental Policy Act (NEPA) implementing regulations at 40 CFR Parts 1500 – 1508 and the NPS NEPA Handbook 2015: In announcing your plans to prepare an environmental assessment (EA) of potential impacts of air tours at the park, you have invited public comment on potential alternatives; and you have identified a range of alternatives including at least one that would significantly reduce the level of impacts caused by the current level of air tours. Presumably, the EA will disclose, evaluate, and compare the various environmental impacts of those alternatives in order to provide the basis for a reasoned decision about the appropriate level of air tours, if any, at HALE.

In essence, your approach to conducting this ATMP planning process is consistent with applicable CEQ and NPS guidance and makes good sense to us. We applaud you and the planning team for doing the right thing and following the applicable process requirements that this proposal deserves.

  1. The proposed HALE environmental assessment (EA) demonstrates it is feasible for NPS to consider a range of air tour management alternatives and disclose and evaluate their potential impacts while conducting a legitimate level of NEPA review of those alternatives: This begs the question – Why did NPS not do the same thing at all the other parks that have already issued proposed ATMPs? As a practical matter, all 23 proposed ATMPs are being prepared under the same National Parks Air Tour Management Act requirements and the same court order; so what is the NPS rationale for complying with basic NEPA requirements in only a few cases (e.g., HAVO and HALE) but not in many others?

In stark contrast to this EA, all other NPS proposed ATMPs issued to date have inexplicably failed to consider a range of alternatives, including some that would reduce the level of impacts caused by the current level of air tours. Those ATMPs proposed the current level of air tours as the only management option being considered (which is, in effect, the No Action Alternative). In addition, all of the previously issued proposed ATMPs failed to disclose or evaluate potential environmental impacts of the respective proposed actions.

We ask NPS to explain its basis for deciding to prepare EAs for only a few parks while not considering any alternatives to the proposed action and without disclosing the impacts of the proposed action for many other parks where the agencies have been ordered to prepare ATMPs.

  1. The newsletter makes no mention of the NPS Organic Act (54 USC §100101) and offers no explanation as to the Act’s relevance to the proposed action: As stated in NPS Management Policies 2006 Section 1.4.1: “The most important statutory directive for the National Park Service is provided by interrelated provisions of the NPS Organic Act of 1916 and the NPS General Authorities Act of 1970, including amendments to the latter law enacted in 1978.” As further stated in Management Policies Section 1.4.3:

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)

Given that this EA is or should be 100% about evaluating potential impacts of commercial air tours on natural and cultural resources and visitor experience opportunities within a unit of the National Park System, we fully expect that the NPS conservation mandate, derived from the Organic Act of 1916, would serve as a key basis for the agencies to evaluate impacts to national park resources and values and determine an appropriate level of air tours, if any. To be clear, Chapter 1 of the EA should include a section summarizing applicable laws, including the NPS Organic Act, relevant to the proposed action.

  1. The EA should discuss the importance of protecting the exceptional quality of the natural soundscape at HALE from commercial air tour noise as described in the 2015 Foundation Document: https://parkplanning.nps.gov/document.cfm?parkID=306&projectID=55973&documentID=108615.

Relevant sections of the Foundation Document include the following:

(p. 7) “Natural sounds, panoramic views, and dark night skies greatly contribute to Haleakalā’s unique sense of place. Ambient sound levels in the Haleakalā Crater are so low that they approach the threshold of human hearing, and the crater and summit offer world-renowned stargazing opportunities…  In addition to being highly desired values for visitors, dark night skies and natural soundscapes are vital components of a healthy, intact, biological community. Each plays an important role in wildlife communication and behavior. The preservation of natural sounds, viewsheds, and dark night skies is also critical to effective wilderness management.” (Emphasis added)

(p. 8) Wilderness – Approximately 24,000 acres of Haleakalā National Park is federally designated wilderness. The wilderness area includes the majority of the Haleakalā Crater and the Kīpahulu Biological Reserve, which protects one of the most intact rainforest ecosystems in the Hawaiian Islands. The wilderness area also has cultural and spiritual significance to Native Hawaiians, who have used these lands since ancient times, and continue to visit sites and features within the wilderness for traditional practices. Visitors have opportunities to participate in wilderness experiences—from expansive views across undeveloped lands to primitive recreation and solitude.

(pp. 35-36) Appendix B: Analysis of Fundamental Resources and Values states the following about Natural Sounds:

  • Extensive acoustical monitoring and related studies demonstrate that sound levels in Haleakalā National Park are remarkably low and dominated by natural sounds. These studies also show that the most common source of noise is from aircraft and that visitors find the aircraft noise annoying.
  • Repeated studies establish that ambient sounds levels in the park are among the lowest recorded in any national park. (Emphasis added)
  • Natural quiet conditions at the Haleakalā Crater are exceptional. Haleakalā Crater is the quietest area measured in the national park system (approximately 10 decibels). In some cases the sound levels were so quiet that they could not be measured. The lowest sound reading was on Sliding Sands Trail. The highest sound reading was in forested upland near waterfalls (35 decibels). (Emphasis added)
  1. Consistent with Management Policies Section 1.5, the EA should include an “appropriate use analysis” for the proposed action: The National Parks Air Tour Management Act of 2000 (49 USC 40128) does NOT mandate that commercial air tours are appropriate or that air tours should be allowed to occur over units of the National Park System. In fact, section (b)(3)(A) of the Act provides that the agencies “may prohibit commercial air tour operations over a national park in whole or in part.” Under the Act air tours are essentially a discretionary activity subject to agency approval. To our knowledge, NPS has never formally considered or determined whether commercial air tours are an appropriate use of (or over) Haleakalā National Park. We therefore request that the EA include an appropriate use analysis as described in Management Policies Section 1.5.
  2. The EA should also include an “impairment determination” for the proposed action, as described in Management Policies Section 1.4.7, which states, in part: “Before approving a proposed action that could lead to an impairment of park resources and values, an NPS decision-maker must consider the impacts of the proposed action and determine, in writing, that the activity will not lead to an impairment of park resources and values. If there would be an impairment, the action must not be approved.” (Emphasis added) 

    Furthermore, “[t]he impact threshold at which impairment occurs is not always readily apparent. Therefore, the Service will apply a standard that offers greater assurance that impairment will not occur. The Service will do this by avoiding impacts that it determines to be unacceptable. These are impacts that fall short of impairment, but are still not acceptable within a particular park’s environment.” Management Policies 1.4.7.1. (Emphasis added) 

  3. The EA should identify its preparers as well as the respective roles of the NPS and the FAA in the NEPA process: The newsletter solicits public comments that may be submitted electronically, presumably to the NPS, via the park’s PEPC website; or in writing (i.e., hard copy), presumably to the U.S. Department of Transportation (USDOT), at the Volpe Center. As a result, it is confusing which agency is actually coordinating preparation of the EA and serves as the “lead agency” as described in 40 CFR §1501.7; and which agency serves as the “cooperating agency” as described in 40 CFR §1501.8.

This is a concern primarily if NPS plays a passive “reviewer only” role as a cooperating agency during the preparation of the pending EA, as NPS typically does when it serves as a cooperating agency. Despite NPS’s tendency to be passively involved, the NEPA implementing regulations provide for a cooperating agency to play a more active role in the planning process and we strongly encourage NPS to do so in this case. For example, 40 CFR 1501.8(b)(3) provides that each cooperating agency “shall… [o]n request of the lead agency, assume responsibility for developing information and preparing environmental analyses, including portions of the environmental impact statement or environmental assessment concerning which the cooperating agency has special expertise.” (Emphasis added)

The NPS Natural Sounds Program clearly has special expertise with regard to measuring and assessing the impacts of air tour noise on park resources and values, including impacts to wildlife, wilderness, and visitor experience. As a result, we would expect the NPS, not the FAA or the Volpe Center, to prepare the analyses of such impacts. Since the primary purpose of the EA is to assess potential impacts of air tours on national park resources and values at HALE, it is imperative that experienced NPS subject matter experts and NEPA practitioners, who regularly evaluate potential resource impacts through the lens of the NPS conservation mandate, are active participants in preparing the various impact analyses for this proposal.

SECTION-BY-SECTION COMMENTS ABOUT THE NEWSLETTER

  1. Purpose and Need (p. 3): The Purpose and Need, as written, makes sense to us. The Need statement, in particular, is very well written and could serve as a model Need statement for all other park ATMPs.
  2. Resources for Consideration in the EA (p. 3): The proposed list of impact topics appears complete to us. The impact analysis for each topic should include a discussion of available data, such as ambient sound surveys, as well as a review of relevant scientific literature related to the impacts of aircraft noise on specific resources. While this may seem like we are stating the obvious, since NONE of the other proposed ATMPs released thus far have contained any such information, we feel we need to say it here.
  3. Reference materials to consider when preparing the respective impact analyses include the following:

While the above list is by no means complete, all of the materials listed above are available via links found on the NPS Natural Sounds Program website at: https://www.nps.gov/subjects/sound/index.htm.  However, since NONE of this reference material was mentioned in ANY of the proposed park ATMPs that NPS has issued to date, we feel it is necessary to call this information to your attention now.

  1. Alternative 1 – No Action (p. 9-12): Alternative 1 represents a continuation of what is currently flown and/or allowed under existing law including each company’s Interim Operating Authority (IOA) as granted by the FAA (70 Federal Register 36456 (June 23, 2005). As stated on p. 9, “[t]he no action alternative provides a basis for comparison but is not a selectable alternative because it does not meet the purpose and need for the ATMP and is not in compliance with the Act.” (Emphasis added)

The newsletter also states that the average number of air tour numbers conducted from 2017 to 2019 was 4,824. However, as described under the proposed no action alternative, operators could theoretically fly up to the IOA limit of 25,827 air tours per year. Using the maximum theoretical number of flights that could occur, rather than the actual number of flights occurring in recent year, as the baseline for comparison in the EA makes no sense for several reasons:

First, the “NPS has [already] determined the current level of air tours [i.e., 4,824] is inconsistent with the Park’s purpose and values”; and dismissed it (the current level of flights) as a viable alternative “because the NPS determined they would result in unacceptable impacts to Park natural and cultural resources and visitor enjoyment.” (Emphasis added) SeeNewsletter, Alternatives Considered but Dismissed, p. 7. Second, “[t]he agencies consider the 2017-2019, three-year average, to be the existing baseline for the purposes of understanding the existing number of commercial air tour flights over the Park.”See Newsletter, Number of Flights Each Year, p. 9. (Emphasis added)

In addition, one would reasonably expect that the severity of impacts could be quite different between 4,824 actual flights per year vs. the maximum theoretical number of 25,827 flights allowable under IOAs. The latter number of flights has NOT been occurring and there is no data documenting the actual impacts of such a high number of flights. Comparing the potential impacts of alternatives 2-3 to the extremely high number of flights that are theoretically allowable under IOAs provides no meaningful comparison to a realistic baseline. To illustrate this point, we would expect that the current level of air tours (an average of 4,824 flights per year), with few operating conditions, would have relatively “mild” adverse impacts if compared to the impacts of 25,827 flights per year. Yet, as NPS states in the Newsletter (p. 7), “NPS determined they would result in unacceptable impacts to Park natural and cultural resources and visitor enjoyment”; and “the current level of air tours [i.e., 4,824] is inconsistent with the Park’s purpose and values.” (Emphasis added)

Since 4,284 flights per year already surpasses the threshold of “unacceptable impacts” to park resources and values, it would be the most reasonable baseline to consider for comparison to the action alternatives. In addition, here should be considerable data documenting the actual impacts of 4,824 flights per year, which, again, makes it a sound basis of comparison with proposed alternatives 2-3. We therefore strongly recommend that NPS use 4,824 flights per year (not 25,827) as the baseline for its analysis of impacts for alternative 1.

  1. Action alternatives (pp. 13-21): In general, alternatives 2-3 provide a range of alternatives as required by NEPA. Of these, alternative 2, no air tours, would undoubtedly cause the least amount of impacts; and alternative 3 would cause the most impacts of the two action alternatives.

As described, alternative 3 would allow “between 1 and below the current condition (4,824) flights per year, dependent on modeling.” We note that 4,824 is the current average number of air tour flights occurring at HALE; and that the Newsletter (p. 7) states that “the current level of air tours is inconsistent with the Park’s purpose and values.” (Emphasis added)

“Dependent on modeling” is a key, but very ambiguous, phrase in the NPS description of alternative 3. However such “modeling” is conducted will determine whether the number of air tour flights allowed will be closer to 1 per year or closer to the current level of 4,824. We ask that NPS fully describe in the EA its modeling criteria, desired future conditions, monitoring plan, and other information or considerations that will be factored into the modeling process used to determine an appropriate number of flights. Absent such detail, the term “dependent on modeling” is not meaningful.

Because any alternative that is “dependent on modeling” is rife with uncertainty at this point, we strongly recommend that NPS include a more straightforward alternative (e.g., call it alternative 4) that would “phase down, phase out” air tours at HALE over a 5 year period. In practical terms, based on 4,824 being the current average number of flights annually, the annual cap on the number of flights would be decreased by 965 flights per year for 5 years, resulting in the elimination of air tours after five years. This would allow air tour operators an opportunity to adjust their business operations to the eventual requirement that they conduct all air tours outside of the planning area (i.e., at least 5,000 feet AGL over the park and/or at least ½ mile outside of the park boundary).

  1. Minimum altitudes proposed for alternative 3 (p. 20): Alternative 3 would require air tours to fly at a “Minimum 1,500 – 2,000 ft. AGL.” We ask NPS to explain the basis for allowing air tours to fly at only 1,500 feet AGL and question whether that is sufficient to minimize noise impacts over a national park and wilderness. For example, what guideline(s) or studies can you point to that would support 1,500 feet AGL as the minimum altitude?

Instead, we recommend that you consider the following guidance indicating that minimum altitude for air tours, in general, at HALE in all locations should be at least 2,000 feet AGL (not 1,500 – 2,000 feet as proposed):

  • FAA Advisory Circular AC No: 91-36D identifies National Parks, National Wildlife Refuges, Waterfowl Production Areas and Wilderness Areas as “noise sensitive areas”; and recommends that “pilots operating noise producing aircraft (fixed-wing, rotary-wing and hot air balloons) over noise sensitive areas fly not less than 2,000 feet above ground level (AGL), weather permitting.” (Emphasis added) See: https://rgl.faa.gov/Regulatory_and_Guidance_Library/rgAdvisoryCircular.nsf/list/AC%2091-36D/$FILE/AC91-36d.pdf
  • NPS has adopted AC No. 91-36D’s recommendation on the NPS “mitigating the impacts of aircraft” webpage, which states: “All aircraft are requested to maintain a minimum altitude of 2,000 feet above the surface of lands and waters administered by the NPS, UFWS, or USFS Wilderness areas.” See: https://www.nps.gov/articles/mitigating-the-impacts-of-aviation.htm#:~:text=All%20aircraft%20are%20requested%20to,UFWS%2C%20or%20USFS%20Wilderness%20areas.
  • Numerous other federal land and marine sanctuary management agencies have similarly adopted 2,000 feet AGL as the recommended minimum altitude for aircraft flying over federally protected areas.
  • NPS has presented no justification for proposing to deviate from the longstanding minimum altitude standard of 2,000 feet AGL.
  1. Annual/Daily Number of Flights (p. 20): Alternative 3 would allow “between 1 and below the current condition (4,824) flights per year, dependent on modeling.” (Emphasis added) As described in Comment # 5 above, we are concerned that “dependent on modeling” is overly vague and rife with uncertainty. We ask that NPS fully describe in the EA its modeling criteria, desired future conditions, monitoring plan, or other information and procedures that will be factored into the modeling process to determine an appropriate number of flights. We also ask that NPS also consider a more straightforward alternativethat would “phase down/phase out” air tours at HALE over a five year period by reducing an initial cap of 4,824 flights by 965 flights per year in years 2-5, resulting in the elimination of air tours over a 5 year period. This would provide air tour operators an opportunity to adjust their operations to the eventual requirement that all must fly at least 5,000 feet AGL over the park or remain at least ½ mile outside the park boundary.
  2. Proposed Route(s) (p. 20): Alternative 3 would provide “[o]ne air tour route, entering the Park on the west near the State Kahikinui Forest Reserve and exiting the Park near the Kīpahulu area and Visitor Center. This route allows operators to fly in one direction.”

In general, the proposed route seems to be an effective way to limit noise impacts of air tours flying over park lands. On the other hand, if alternative 3 allows up to 4,824 air tours “dependent on modeling” on this one route and all such flights are confined to 11:00 am to 2:00 pm (if non-QT) or 11:00 am to 4:00 pm (if QT), then these portions of the park will be hammered on a daily bases with helicopter noise concentrated within the few hours of late morning to mid-afternoon. This possibility raises questions and concerns about the portions of the proposed route that would allow air tour flights over the park. We ask NPS to provide written descriptions in the EA based on the following questions and concerns that are not easily resolved by looking at the route map on p. 19 of the Newsletter:

  • In the lower center of the map that contains the text block “Proposed Route (Min. Altitude 2,000 AGL)” the route crosses park land. What is the sightseeing purpose of this portion of the flight? Are there hiking trails or other backcountry uses or sensitive wildlife habitat in this portion of the park that will be adversely impacted by the concentrated daily dose of air tour noise? If there is no compelling sightseeing value of this portion of the route, then is its purpose simply to allow air tours to take a more direct route to reach the Kipahulu section of the park? If this portion of the route is simply a short-cut for the benefit of helicopter tour operators, how can NPS justify allowing it?
  • In the Kipahulu portion of the map, it appears that the route goes offshore before it reaches the park boundary near the Kipahulu Visitor Center; then remains at least ½ mile offshore and outside the park boundary. Is that correct? If “yes,” that portion of the proposed route seems appropriate to us. However, the route’s distance from the park boundary is difficult to determine from the map.

In any case, please describe in the EA these two portions of the route that appear to cross park lands; and the rationale behind proposing such routing.

  1. Last but not least, the EA should identify the NPS “preferred alternative” as well as the “environmentally preferable alternative” as described in the NPS NEPA Handbook 2015, Section 4.3: See:https://www.nps.gov/subjects/nepa/upload/NPS_NEPAHandbook_Final_508.pdf.

As described in handbook section 4.3(C), “A preferred alternative is the alternative that ‘would best accomplish the purpose and need of the proposed action while fulfilling [the NPS] statutory mission and responsibilities, giving consideration to economic, environmental, technical, and other factors’ (46.420(d)). It is standard NPS practice to identify the preferred alternative in EAs[.]”

As described in handbook section 4.3 (D), “The environmentally preferable alternative is the alternative developed and analyzed during the NEPA process ‘that causes the least damage to the biological and physical environment and best protects, preserves, and enhances historical, cultural, and natural resources’ (46.30). An environmentally preferable alternative must be identified in a ROD and may be identified in EAs, FONSIs, and draft and final EISs (1505.2(b); 46.450).” (Emphasis added)

The value of NPS identifying both the preferred alternative and the environmentally preferable alternative in this EA is that it would add much needed transparency to what has been a rather murky and not always public process for the past 20 years. While we appreciate that the agencies are now moving forward with the ATMP planning process at HALE, the fact remains that stakeholders had to file litigation in order to force NPS and the FAA to comply with the provisions of the National Parks Air Tour Management Act of 2000 after many years of ineffective progress by the agencies. Improving transparency in the planning process would be a helpful step toward restoring public confidence that NPS is fully committed to its conservation mandate such that “when there is a conflict between conserving resources and values and providing for enjoyment of them, conservation is to be predominant.”

In closing, we appreciate the opportunity to comment on this important issue.

Sincerely,

Michael B. Murray, Chair
Coalition to Protect America’s National Parks
2 Massachusetts Ave NE, Unit 77436
Washington, DC 20013

cc:

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