Wind Farms Run Into Turbulence with the FAA

With the current emphasis on “renewable energy” and sustainability, along with a healthy dose of federal funding, many companies have been developing plans for wind farms to help move this nation from the grip of over-reliance on petroleum products for its energy needs. While barriers to their construction are not new, with wind turbine companies fending off Endangered Species Act lawsuit (endangered bats running into blades) and other environmental issues, the FAA recently raised an additional issue: obstruction to aviation.

On Wednesday, January 6, 2010, the FAA found that 15 of Gamesa’s proposed 30 wind turbines for Shaeffer Mountain in Somerset County, Pennsylvania, exceed “obstruction standards and/or would have an adverse physical or electromagnetic interference effect” on the airspace above the ridge or nearby airports and flight routes. Two days later, on Friday, January 8, 2010, the FAA ruled that one of the two wind turbines proposed for the Dartmouth, Massachusetts owned land is a hazard to air traffic and must be lowered.

The FAA may have learned its lesson, since back in April, 2008, it was told to go back to the drawing board with its “Does Not Exceed” determinations for a proposed wind farm above a proposed airport just south of Las Vegas in Ivanpah, Nevada. Clark County v. FAA. There, the court determined that the FAA’s findings flew in the data that the 400 ft towers would penetrate the FAA’s 40:1 slope and that 83 turbines would appear as a “fleet of jumbo jets” to the air traffic controllers.

It may be prudent, then, to review the process established by the FAA for determining if an object will be considered to be an “obstruction.”

Notification

Part 77 of the Federal Aviation Regulations (14 C.F.R., Part 77) establishes standards and notification requirements for objects affecting navigable airspace. This notification serves as the basis for:

  • Evaluating the effect of the construction or alteration on operating procedures
  • Determining the potential hazardous effect of the proposed construction on air navigation
  • Identifying mitigating measures to enhance safe air navigation
  • Charting of new objects.

Notification allows the FAA to identify potential aeronautical hazards in advance thus preventing or minimizing the adverse impacts to the safe and efficient use of navigable airspace.

Contents of Notification

In particular, § 77.13 provides when the FAA needs to be notified of the “construction or alteration” of an object:

  • Any construction or alteration exceeding 200 ft above ground level
  • Any construction or alteration
    • within 20,000 ft of a public use or military airport which exceeds a 100:1 surface from any point on the runway of each airport with at least one runway more than 3,200 ft.
    • within 10,000 ft of a public use or military airport which exceeds a 50:1 surface from any point on the runway of each airport with its longest runway no more than 3,200 ft.
    • within 5,000 ft of a public use heliport which exceeds a 25:1 surface
  • Any highway, railroad or other traverse way whose prescribed adjusted height would exceed that above noted standards
  • When requested by the FAA
  • Any construction or alteration located on a public use airport or heliport regardless of height or location

Persons failing to comply with the provisions of FAR Part 77 are subject to Civil Penalty under Section 902 of the Federal Aviation Act of 1958, as amended and pursuant to 49 U.S.C. Section 46301(a).

FAA Determination

Once the FAA has completed an aeronautical study, a determination is made regarding the impact to air navigation. One of three responses is typically issued:

  1. No Objection – The subject construction did not exceed obstruction standards and marking/lighting is not required.
  2. Conditional Determination – The proposed construction/alteration would be acceptable contingent upon implementing mitigating measures (Marking & Lighting, etc.)
  3. Objectionable – The proposed construction/alteration is determined to be a hazard and is thus objectionable. The reasons for this determination are outlined to the proponent.

If at any time during the aeronautical study, the proposed alteration is determined to be a hazard, the study is halted with no further consideration and an objectionable determination is issued.

After the Determination, Then What?

The real issue comes after the FAA has made its determination. By congressional mandate, the FAA cannotprohibit any construction activities. Instead, the FAA evaluates the proposed construction, and as necessary, works with the proponent to mitigate any impact that may result, even if it finds the obstruction to be a hazard and to be objectionable. A good case in point, again, comes from Las Vegas, where the Stratosphere Tower, completed in 1996, and the second-tallest structure west of the Mississippi River. When the Stratosphere was proposed, the FAA said it would present a hazard for air traffic control. But the tower was built anyway. And now, air traffic controllers account for the Stratosphere when guiding incoming and outbound traffic using Las Vegas McCarran’s north-south runway.

Instead, to make up for the lack of veto power, the FAA depends on collaboration with local jurisdictions to reduce conflicts between new structures and airspace. However, many local jurisdictions are loathe to enact laws that would restrict the height of buildings, even around airports due to fear of a “takings” lawsuit.

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