FCC NEPA Regulations Update
FCC NEPA Environmental Compliance Updates
Todd Schnakenberg Jodi Jacobson, Ph.D.
Overview 1. 2. 3. 4.
FCC NEPA Environmental Screening Process FCC NEPA Compliance Trends USFWS Concurrence - IPaC System USFWS Proposed Actions for Migratory Bird Treaty Act (MBTA) “Incidental Take” Permit
FCC Requirement for NEPA When Does the FCC NEPA Apply? • FCC Licensed Radio Frequencies • Antenna Structure (Towers) Is Registered Regardless of Height • New Construction or Modification of Existing Towers • FCC NEPA Not Required for Unlicensed Radios on Towers Less Than 200’ Tall With FAA Determination of “No Hazard”
FCC NEPA Checklist • • • • •
• • • •
Will the project be located in an officially designated wilderness area? Will the project be located in an officially designated wildlife preserve Will the project affect listed threatened or endangered species? Will the project affect designated critical habitats? Will the project affect sites significant in American history, architecture, archeology, engineering or culture sites, that are listed, or are eligible for listing, in the National Register of Historic Places? Will the project affect Indian religious sites? Will the project be located in a floodplain? Will the project construction involve significant change in surface features (e.g., wetland fill, deforestation or water diversion)? Will the project be equipped with high intensity white lights which are to be located in residential neighborhood?
FCC NEPA Environmental Screening Process Major Milestones • FCC Form 854 – Antenna Structure Registration System
• Biological Site Assessment – USFWS Consultation
• Cultural/Historical Site Assessment – Tribal Consultations (TCNS) – Public Notice – 620 Form/E-106
FCC NEPA Screening Timeline Overview Timelines for NEPA EA Completion Final EA Report
10
Draft EA TCNS/THPO
30 7
30
30
*SHPO
30
USFWS Review
30
Public Notice
30
Site Assessment
30
FAA/FCC Registration
25
7
7 20
Initial Task/Review Period Review Period Grace Period EA Public Comment Period FCC EA Review Period
10
Draft EA Revisions
7 Final Report 0
20
40
60
80
100 120 140 160 180
FCC on FERC • FERC and FCC – FCC still requires TCNS – Must complete Tribal coordination per FERC requirements – Tower as an impact must be included in FERC NEPA documentation – USFWS coordination must include tower
Positive Train Control: FCC Compliance • PTC – Towers Less than 75 Feet Tall – Batch submission up to 200 towers – Tribal requests for fees and/or monitoring survey fees explicitly stated as allowed – Cultural Survey Reports, Ethnographic Studies, Tribal Surveys, and Monitoring are identified as standard requests. – 15 day notice recommended prior to construction for Tribal monitors
Small Wireless Facilities – NHPA Section 106 Exclusions • Collocation on utility structures, poles, and transmission towers – No significant changes to structure – No new ground disturbance – Not within 250 feet of a Historic District, or on an NHL or NRHP eligible property
Small Wireless Facilities – NHPA Section 106 Exclusions • Collocation on buildings and non-tower structures – All from previous slide – Existing Antenna on structure – Complies with zoning and historic preservation conditions of existing antenna
Antenna Structure Registration System Timeframes • ASR submitted without EA pending for 10 months returned to applicant • 60 days to resubmit, or ASR dismissed • Resubmissions without EA attached dismissed after 6 months Overall Environmental Review and Tribal Response
First Responder Network Authority FirstNet • Still unknown – Programmatic Agreements in Development • Cultural – Batching or new Agreements? • Tribal Responses and Review Fees - Safety
Questions
Any questions so far?
FCC NEPA Checklist – Natural Resources Will the Project Impact Natural/Human resources:
• • • • •
Officially designated wilderness area or wildlife preserve Federally listed threatened or endangered species Designated critical habitats (USFWS) FEMA Floodplains Surface features (wetlands, streams, or water diversion) Any adverse impacts will trigger an FCC Environmental Assessment
FCC NEPA Checklist – USFWS Coordination Process Update U.S. Fish and Wildlife Coordination • REQUIRED for ALL NEPA Filings • “No Effect” Determination – Request an Official Species List through IPaC System – No USFWS review period (automatic response)
• “May Affect, but Not Likely to Adversely Affect” or “Adversely Affect” Determinations – USFWS review period (no time table for review)
FCC NEPA Checklist – USFWS Coordination Process Update Information, Planning, and Consultation System (IPaC)
Trusted Resources Report
FCC NEPA Checklist – Biological Key Applicable Laws • Migratory Bird Treaty Act • Endangered Species Act • Bald / Golden Eagle Protection Act • Clean Water Act / Rivers and Harbors Act
Migratory Bird Treaty Act What is the MBTA?
Migratory Bird Treaty Act • MBTA (16 U.S.C. 703–711) • Signed by Congress in 1916 • Agreement between the U.S. and Great Britain (Canada) to protect migratory birds – Mexico, Japan, Former Soviet Union join later • Makes it unlawful for a “person” to “take” or kill “migratory bird” species found in the U.S.
MBTA- Definitions • “Take” - to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect. • “Person” - any individual, firm, corporation, association, partnership, club, or private body, any one or all, as the context requires.
MBTA - Protection • MBTA protects 1,027 bird species in the U.S. • 8% of migratory bird species protected by ESA – (50 CFR 10.13)
• MBTA does not protect Migratory birds: – Against harassment – Habitat Burrowing Owls!!!!
MBTA – Incidental “Take” • No provisions for incidental “take” for industry sectors – Incidental “take” only authorized by special permits • • • •
Scientific research Rehabilitation Falconry Military readiness activities
• No regulatory assurances for the MBTA against enforcement action for industry sectors.
This is a Problem?
MBTA - Enforcement • USFWS – MBTA Enforcement Agency – USFWS does not distinguish between “intentional or unintentional take”
• Department of Justice – Prosecutorial Discretion
MBTA – Due Diligence • How to avoid USFWS Enforcement Action – Current Process – Low Enforcement Priority • Due Diligence (documented) –Best Management Practices to minimize “take” –USFWS Consultation – High Enforcement Priority • No Due Diligence to avoid “take” • Habitual violators
MBTA – Due Diligence • Voluntary mitigation and Best Management Practices (BMP) with industry sectors. – Nesting bird surveys – Construction done outside of nesting season – Down shielding on outdoor lighting fixtures – Bird flight deflectors on guy wires and overhead electrical power lines – Timed light switches – Tower Lighting Configurations http://www.poweng.com.au/birdflight.htm
MBTA – Proposed Permit Process Migratory Bird Permit USFWS Programmatic Environmental Impact Statement • Public Comment Period Ended July 2015 • Possible Actions from Program Review – – – –
General Conditional Authorization Individual Permits (authorization and procedures only) Memoranda of Understanding With Federal Agencies Development of Voluntary Guidance for Industry Sectors
MBTA – Proposed Permit Process • Proposed MBTA “Incidental Take” Permit Program – Will focus on industries and activities that involve significant avian mortality and for which reasonable and effective measures to avoid or minimize take exist. • Communication Towers • Wind energy • Electrical Transmission lines • Oil and gas pipelines
MBTA – General Conditional Authorization General Conditional Authorization • Incidental “take” Permit for industry sectors • Conditional upon adhering to BMPs to minimize incidental “take” • Similar to the current voluntary mitigation process with USFWS
MBTA – Individual Permit • Individual Permits issued for projects or activities not covered under general conditions authorizations. • USFWS also considering ways to minimize administrative burdens for both parties for issuance of an Individual Permit • USFWS Site-specific NEPA review would used for Individual Permits
MBTA – Mitigation Rules USFWS Presumed Authority for Mitigation • Executive Order 13186 (2001) – Requires FEDERAL AGENCIES that take actions likely to have a negative impact on migratory bird populations enter into a MOU with the USFWS to “promote the conservation of migratory bird populations.” – 2011, MOU between USFWS and FERC • Established mitigation guidelines during USFWS Section 7 consultation
MBTA – Voluntary Guidance • USFWS would continue to work closely with interested industry sectors on BMP • USFWS would not provide legal authorization for incidental take of migratory birds • Reduce the likelihood of and enforcement action for incidental “take” of migratory birds This is the current process to avoid enforcement action under MBTA
MBTA – Public Comments Trending comments from public comment period: (147 comments received) • Overwhelming industry sector support for MBTA “incidental take” permit – Transportation Authorities
Summary • • • • • • •
FCC NEPA Environmental Screening Process FCC NEPA Compliance Trends USFWS Coordination - IPaC System Migratory Bird Treaty Act Overview Problems with MBTA USFWS Proposed Migratory Bird Permits Possible actions from MBTA Program Review
Questions? Todd Schnakenberg Staff Biologist/NEPA Specialist
[email protected] 512.684.3138
Jodi Jacobson, Ph.D. Tower Environmental Compliance Program Manager [email protected] 512.684.3183
Todd Schnakenberg Jodi Jacobson, Ph.D.
Overview 1. 2. 3. 4.
FCC NEPA Environmental Screening Process FCC NEPA Compliance Trends USFWS Concurrence - IPaC System USFWS Proposed Actions for Migratory Bird Treaty Act (MBTA) “Incidental Take” Permit
FCC Requirement for NEPA When Does the FCC NEPA Apply? • FCC Licensed Radio Frequencies • Antenna Structure (Towers) Is Registered Regardless of Height • New Construction or Modification of Existing Towers • FCC NEPA Not Required for Unlicensed Radios on Towers Less Than 200’ Tall With FAA Determination of “No Hazard”
FCC NEPA Checklist • • • • •
• • • •
Will the project be located in an officially designated wilderness area? Will the project be located in an officially designated wildlife preserve Will the project affect listed threatened or endangered species? Will the project affect designated critical habitats? Will the project affect sites significant in American history, architecture, archeology, engineering or culture sites, that are listed, or are eligible for listing, in the National Register of Historic Places? Will the project affect Indian religious sites? Will the project be located in a floodplain? Will the project construction involve significant change in surface features (e.g., wetland fill, deforestation or water diversion)? Will the project be equipped with high intensity white lights which are to be located in residential neighborhood?
FCC NEPA Environmental Screening Process Major Milestones • FCC Form 854 – Antenna Structure Registration System
• Biological Site Assessment – USFWS Consultation
• Cultural/Historical Site Assessment – Tribal Consultations (TCNS) – Public Notice – 620 Form/E-106
FCC NEPA Screening Timeline Overview Timelines for NEPA EA Completion Final EA Report
10
Draft EA TCNS/THPO
30 7
30
30
*SHPO
30
USFWS Review
30
Public Notice
30
Site Assessment
30
FAA/FCC Registration
25
7
7 20
Initial Task/Review Period Review Period Grace Period EA Public Comment Period FCC EA Review Period
10
Draft EA Revisions
7 Final Report 0
20
40
60
80
100 120 140 160 180
FCC on FERC • FERC and FCC – FCC still requires TCNS – Must complete Tribal coordination per FERC requirements – Tower as an impact must be included in FERC NEPA documentation – USFWS coordination must include tower
Positive Train Control: FCC Compliance • PTC – Towers Less than 75 Feet Tall – Batch submission up to 200 towers – Tribal requests for fees and/or monitoring survey fees explicitly stated as allowed – Cultural Survey Reports, Ethnographic Studies, Tribal Surveys, and Monitoring are identified as standard requests. – 15 day notice recommended prior to construction for Tribal monitors
Small Wireless Facilities – NHPA Section 106 Exclusions • Collocation on utility structures, poles, and transmission towers – No significant changes to structure – No new ground disturbance – Not within 250 feet of a Historic District, or on an NHL or NRHP eligible property
Small Wireless Facilities – NHPA Section 106 Exclusions • Collocation on buildings and non-tower structures – All from previous slide – Existing Antenna on structure – Complies with zoning and historic preservation conditions of existing antenna
Antenna Structure Registration System Timeframes • ASR submitted without EA pending for 10 months returned to applicant • 60 days to resubmit, or ASR dismissed • Resubmissions without EA attached dismissed after 6 months Overall Environmental Review and Tribal Response
First Responder Network Authority FirstNet • Still unknown – Programmatic Agreements in Development • Cultural – Batching or new Agreements? • Tribal Responses and Review Fees - Safety
Questions
Any questions so far?
FCC NEPA Checklist – Natural Resources Will the Project Impact Natural/Human resources:
• • • • •
Officially designated wilderness area or wildlife preserve Federally listed threatened or endangered species Designated critical habitats (USFWS) FEMA Floodplains Surface features (wetlands, streams, or water diversion) Any adverse impacts will trigger an FCC Environmental Assessment
FCC NEPA Checklist – USFWS Coordination Process Update U.S. Fish and Wildlife Coordination • REQUIRED for ALL NEPA Filings • “No Effect” Determination – Request an Official Species List through IPaC System – No USFWS review period (automatic response)
• “May Affect, but Not Likely to Adversely Affect” or “Adversely Affect” Determinations – USFWS review period (no time table for review)
FCC NEPA Checklist – USFWS Coordination Process Update Information, Planning, and Consultation System (IPaC)
Trusted Resources Report
FCC NEPA Checklist – Biological Key Applicable Laws • Migratory Bird Treaty Act • Endangered Species Act • Bald / Golden Eagle Protection Act • Clean Water Act / Rivers and Harbors Act
Migratory Bird Treaty Act What is the MBTA?
Migratory Bird Treaty Act • MBTA (16 U.S.C. 703–711) • Signed by Congress in 1916 • Agreement between the U.S. and Great Britain (Canada) to protect migratory birds – Mexico, Japan, Former Soviet Union join later • Makes it unlawful for a “person” to “take” or kill “migratory bird” species found in the U.S.
MBTA- Definitions • “Take” - to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect. • “Person” - any individual, firm, corporation, association, partnership, club, or private body, any one or all, as the context requires.
MBTA - Protection • MBTA protects 1,027 bird species in the U.S. • 8% of migratory bird species protected by ESA – (50 CFR 10.13)
• MBTA does not protect Migratory birds: – Against harassment – Habitat Burrowing Owls!!!!
MBTA – Incidental “Take” • No provisions for incidental “take” for industry sectors – Incidental “take” only authorized by special permits • • • •
Scientific research Rehabilitation Falconry Military readiness activities
• No regulatory assurances for the MBTA against enforcement action for industry sectors.
This is a Problem?
MBTA - Enforcement • USFWS – MBTA Enforcement Agency – USFWS does not distinguish between “intentional or unintentional take”
• Department of Justice – Prosecutorial Discretion
MBTA – Due Diligence • How to avoid USFWS Enforcement Action – Current Process – Low Enforcement Priority • Due Diligence (documented) –Best Management Practices to minimize “take” –USFWS Consultation – High Enforcement Priority • No Due Diligence to avoid “take” • Habitual violators
MBTA – Due Diligence • Voluntary mitigation and Best Management Practices (BMP) with industry sectors. – Nesting bird surveys – Construction done outside of nesting season – Down shielding on outdoor lighting fixtures – Bird flight deflectors on guy wires and overhead electrical power lines – Timed light switches – Tower Lighting Configurations http://www.poweng.com.au/birdflight.htm
MBTA – Proposed Permit Process Migratory Bird Permit USFWS Programmatic Environmental Impact Statement • Public Comment Period Ended July 2015 • Possible Actions from Program Review – – – –
General Conditional Authorization Individual Permits (authorization and procedures only) Memoranda of Understanding With Federal Agencies Development of Voluntary Guidance for Industry Sectors
MBTA – Proposed Permit Process • Proposed MBTA “Incidental Take” Permit Program – Will focus on industries and activities that involve significant avian mortality and for which reasonable and effective measures to avoid or minimize take exist. • Communication Towers • Wind energy • Electrical Transmission lines • Oil and gas pipelines
MBTA – General Conditional Authorization General Conditional Authorization • Incidental “take” Permit for industry sectors • Conditional upon adhering to BMPs to minimize incidental “take” • Similar to the current voluntary mitigation process with USFWS
MBTA – Individual Permit • Individual Permits issued for projects or activities not covered under general conditions authorizations. • USFWS also considering ways to minimize administrative burdens for both parties for issuance of an Individual Permit • USFWS Site-specific NEPA review would used for Individual Permits
MBTA – Mitigation Rules USFWS Presumed Authority for Mitigation • Executive Order 13186 (2001) – Requires FEDERAL AGENCIES that take actions likely to have a negative impact on migratory bird populations enter into a MOU with the USFWS to “promote the conservation of migratory bird populations.” – 2011, MOU between USFWS and FERC • Established mitigation guidelines during USFWS Section 7 consultation
MBTA – Voluntary Guidance • USFWS would continue to work closely with interested industry sectors on BMP • USFWS would not provide legal authorization for incidental take of migratory birds • Reduce the likelihood of and enforcement action for incidental “take” of migratory birds This is the current process to avoid enforcement action under MBTA
MBTA – Public Comments Trending comments from public comment period: (147 comments received) • Overwhelming industry sector support for MBTA “incidental take” permit – Transportation Authorities
Summary • • • • • • •
FCC NEPA Environmental Screening Process FCC NEPA Compliance Trends USFWS Coordination - IPaC System Migratory Bird Treaty Act Overview Problems with MBTA USFWS Proposed Migratory Bird Permits Possible actions from MBTA Program Review
Questions? Todd Schnakenberg Staff Biologist/NEPA Specialist
[email protected] 512.684.3138
Jodi Jacobson, Ph.D. Tower Environmental Compliance Program Manager [email protected] 512.684.3183
