AOPA Pilot Magazine - January 2012 - 32

PILOTCOUNSEL

BY JOHN S. YODICE
AOPA SECRETARY

Protecting VFR airspace

he airspace in which we fly is finite. There will be no more. So what we have needs preserving. The FAA is charged

there would be a “clear risk of collision with the wind turbine generators.” Attempts to circumvent the turbines would be “problematic because even horizontal diversions of only one or two miles can further compress air traffic into congested corridors.” The “finely balanced airspace over Nantucket Sound is already one of the most congested, foggy, and dangerous airspaces on the eastern seaboard.” with evaluating proposed structures in order to The “encroachment of established VFR routes [would] severely compromise [pilots’] ability to determine if the structures will be “hazards”—that is, obstructions—to air navigation, or to navigational execute collision avoidance maneuvers in the dead or communication facilities. That process is illuscenter of the three airports of Nantucket Sound.” John S. Yodice is Even the National Air Traffic Controllers Associatrated in a recent decision of the United States Court the secretary for tion commented that adding the turbines to the of Appeals for the District of Columbia Circuit. The the AOPA Board of decision is worth review because the court is critical area would be a “disaster waiting to happen.” Trustees. of the FAA for giving short shrift to the possible hazIt is a peculiarity of these proceedings that the ardous effects on VFR flight, a welcome precedent. FAA hazard determinations, by themselves, have no The court decision involves a proposal to build enforceable legal effect. Their real effect is on the the nation’s first offshore wind farm, comprising 130 wind tur- agencies that have the jurisdiction to approve or disapprove bines 440 feet tall in a 25-square-mile area of Nantucket Sound, the structure. In this case, the Interior Department, as lessor Massachusetts. It’s in a well-used VFR flyway midway between of the project, is the ultimate arbiter of whether the wind farm the Barnstable, Nantucket, and Martha’s Vineyard airports. receives government permission. FAR Part 77 requires that notice be given to the FAA of any In its decision the court agreed with the aviation interests proposed construction or alteration that is more than 200 feet that the FAA’s “No Hazard” determinations were arbitrary and agl at its site or that meets certain criteria that could affect capricious because they departed from the FAA’s own internal nearby airports. It describes the standards used to determine guidelines. The FAA finding of no adverse effect on VFR operaobstructions to air navigation that may affect the safe and tions relied solely on one section of its handbook that says that a efficient use of navigable airspace and the operation of air navi- structure would have an adverse effect upon VFR air navigation gation and communication facilities. An object that is of greater if its height is greater than 500 feet above the surface at its site, height than 499 feet agl is presumed a hazard to air navigation and within two statute miles of any regularly used VFR route. unless further aeronautical study concludes otherwise. The FAA overread this section by concluding the turbines would In this case the FAA conducted an extensive aeronautical not have an adverse effect because they would not exceed the study. It circulated a public notice of these studies and invited 500-foot threshold. At the same time the FAA ignored another comments. The FAA ultimately issued 130 identical determi- part of the handbook also dealing with determining adverse nations of “No Hazard,” one for each of the proposed wind effect. That part said that “a proposed or existing structure… turbines. It concluded that the turbines “would have no sub- has an adverse effect if it would…require a VFR operation, to stantial adverse effect on the safe and efficient utilization of the change its regular flight course or altitude.” The FAA failed to navigable airspace by aircraft or on operation of air navigation consider this part, and failed to supply any apparent analysis facilities.” It was these determinations that were challenged in of the record evidence concerning the wind farm’s potentially court by the town owning and operating the Barnstable air- adverse effect on VFR operations. A study commissioned by the port, by a citizens group, and by others. The challengers argued, FAA indicated that many flights flew through the area around among other things, that the FAA departed from its own internal the proposed project. guidelines, and arbitrarily and capriciously failed to calculate “The FAA may ultimately find the risk of these dangers to be modest, but we [the court] cannot meaningfully review the dangers posed to local aviation. In the administrative proceedings before the FAA, the man- any such prediction because the FAA cut the process short in agers of the Barnstable, Nantucket, and Martha’s Vineyard reliance on a misreading of its handbook and thus, as far as airports—and other aviation interests, including AOPA—told we can tell, never calculated the risks in the first place.” The the FAA that many pilots who regularly operate under VFR near FAA determinations were vacated by the court, and the matter the proposed wind farm would have a difficult time staying was remanded back to the FAA. We hope that this decision will beneath the foggy and otherwise inclement weather that often heighten the FAA’s concern about the effects of proposed conplagues Nantucket Sound, while at the same time maintain- struction on VFR flights not only in this case but also in other ing a safe distance from the wind turbines. During such times, proposals to come. 32 • JANUARY 2012

AOPA PILOT •

AOPA Pilot Magazine - January 2012

Table of Contents for the Digital Edition of AOPA Pilot Magazine - January 2012