Speech given to the AAAE's environmental conference in Dallas, TX, on October 15, 2012.

1. Steven M. Taber
TABER LAW GROUP PC Irvine, California

2. Introduction
 Bird Strikes: 1,770 reported in 1990, 9,840 reported in
2011 – a five-fold increase.
 Due to increase in large bird populations, such as
Canada Geese, White and Brown Pelicans, Sandhill
Cranes, Wild Turkeys and Bald Eagles.
 Wildlife strikes have resulted in at 24 deaths and 235
injuries in the United States.
 Wildlife Strikes have caused nearly 600,000 hours of
aircraft downtime and $625 million in damages
annually.

4. 49 U.S.C. § 44718
 States that the FAA shall require proponents of
structures to give “adequate public notice” if doing so
will promote “safety in air commerce.” 49 U.S.C. §
44718(a).
 Also requires that the FAA conduct an aeronautical
study when a structure interferes with navigable
airspace. 49 U.S.C. § 44718(b).

5. FAA Order 5190.6B FAA Airport
Compliance Manual
 FAA Order 5190.6B is available online at
http://www.faa.gov/airports/resources/publications/orders/com
pliance_5190_6/
 Section 7.13(e) illuminates a bit an airport’s responsibilities with
respect to wildlife hazards.
(1) “. . . For airports serving only piston-powered aircraft, FAA
recommends a separation distance of 5,000 feet between an AOA and
a hazardous wildlife attractant. . .”
(2) “. . . For airports selling Jet-A fuel, FAA recommends a separation
distance of 10,000 feet between an AOA and a hazardous wildlife
attractant. . .”
(3) “. . . For all airports, the FAA recommends a distance of five (5)
statute miles between the farthest edge of the AOA and the
hazardous wildlife attractant if the attractant could cause hazardous
wildlife movement into or across the approach or departure airspace.”

6. FAA Order JO 7400.2H, Procedures for
Handling Airspace Matters, ¶ 7-1-2(b)
 FAA Order JO 7400.2H is available online at
http://www.faa.gov/documentLibrary/media/Order/Basic7
400.2H.pdf
 While this Order mainly concerns Part 77 obstruction
standards, there is language to indicate FAA’s intention to
have Part 77 Hazard Determinations to cover wildlife
concerns as well.
 Specifically, ¶ 7-1-2(b) states that a division that objects to a
No Hazard Determination for reasons other than Part 77
obstruction standards, such as Wildlife Attractants, shall
issue the Determination instead of Air Traffic.

7. FAA Advisory Circular 150/5200-33B,
Hazardous Wildlife Attractants On or
Near Airports
 It is advisory, but as you well know, it is required for
federally-obligated airports – “Airports that have
received Federal grant-in-aid assistance must use these
standards.”
 This AC represents the most complete discussion of
responsibilities of airports and the FAA with respect to
wildlife hazards at or near airports.
 AC 150/5200-33B is available online at
http://www.faa.gov/documentLibrary/media/advisory
_circular/150-5200-33B/150_5200_33b.pdf

8. Establishes Separation Distances between
Wildlife Attractants and Airports.
 Mentions the separation distances that were also
mentioned in FAA Order 5190.6B.
 5,000 feet for airports that serve piston powered
aircraft
 10,000 feet for airports that serve turbine powered
aircraft
 Five statute miles “between the farthest edge of the
airport’s AOA and the hazardous wildlife attractant if
the attractant could cause hazardous wildlife
movement into or across the approach or departure
airspace.”

9. What Kind of Land Use Practices Are
We Talking About?
 Waste disposal operations
 Municipal Solid Waste Landfills
 Transfer Stations
 Composting operations (not on site or less than 1,200
feet from AOA)
 Underwater waste discharges
 Recycling centers are acceptable, if the waste to be
recycled is cleaned first.
 Construction and Demolition debris facilities,
acceptable if not co-located.

10. What Kind of Land Use Practices Are
We Talking About?
 Water Management Facilities
 Stormwater management facilities
 Wastewater treatment facilities
 Artificial Marshes
 Wastewater discharge and sludge disposal
 Wetlands
 Existing wetlands
 Mitigation for wetland impacts from airport projects

11. What Kind of Land Use Practices Are
We Talking About?
 Dredge Spoil Containment Areas
 Agricultural Activities
 Livestock production
 Aquaculture
 Alternative uses of Agricultural Land
 Golf Courses, Landscaping and Other Land-Use
Considerations
 Golf Courses
 Landscaping and landscape maintenance
 Airports surrounded by wildlife habitat

12. What Kind of Land Use Practices Are
We Talking About?
 Synergistic Effects of Surrounding Land Uses.
 “There may be circumstances where two (or more)
different land uses that would not, by themselves, be
considered hazardous wildlife attractants or that are
located outside of the separations identified in Sections
1-2 through 1-4 that are in such an alignment with the
airport as to create a wildlife corridor directly through
the airport and/or surrounding airspace.”
 Particularly relevant when looking at the “5-mile radius”
separation distance.

13. Procedures for Wildlife Hazard Management by
Operators of Public-Use Airports
 Wildlife Hazard Management at Airports: a Manual
for Airport Personnel http://wildlife-
mitigation.tc.FAA.gov/
 Until recently, Wildlife Hazard Assessments, under
Title 14, Code of Federal Regulations, Part 139 (14 CFR
139.337(b)) were required only under certain
circumstances, enumerated in 139.337(a).
 Wildlife Hazard Management Plan (WHMP)
 FAA will determine if a WHMP will be necessary
 Uses WHA as the basis.

14. Procedures for Wildlife Hazard Management by
Operators of Public-Use Airports
 Local Coordination
 Establishment of a Wildlife Hazards Working Group
 “At the very least, airport operators must ensure they are
on the notification list of the local planning board or
equivalent review entity for all communities located
within 5 miles of the airport, so they will receive
notification of any proposed project and have the
opportunity to review it for attractiveness to hazardous
wildlife.”
 Coordination/Notification of Airmen of Wildlife
Hazards

15. FAA Notification and Review of
Proposed Land-Use Practice Changes
 FAA does not bar wildlife attractants – it “discourages
the development” of wildlife attractants within the
separation distances.
 MSWLF Units – as that term is defined under RCRA –
are pointed to EPA regulation 40 CFR 258.10.
 FAA “strongly recommends against any waste handling
facility within the separation distances”

16. FAA Notification and Review of
Proposed Land-Use Practice Changes
 FAA “encourages” airport operators to be aware of proposed land
use practice changes that may attract wildlife.
 They are “encouraged” to use FAA Form 7460-1 Notice of
Proposed Construction or Alteration to notify the FAA.
 FAA also wants airport operators to know that federally-
obligated airports “are required by their grant assurances to take
appropriate actions to restrict the use of land next to or near the
airport to uses that are compatible with normal airport
operations. The FAA recommends that airport operators to the
extent practicable oppose off-airport land-use changes or
practices within the separations identified in Sections 1-2
through 1-4 that may attract hazardous wildlife. Failure to do so
may lead to noncompliance with applicable grant
assurances.”

17. FAA Has Not Effectively Implemented Its
Wildlife Hazard Mitigation Program
http://www.oig.dot.gov/sites/dot/files/wildlife%20report.pdf

18. Issuance of DOT Inspector General’s
Audit Report
 On August 22, 2012, the DOT Inspector General issued
an Audit Report entitled FAA Has Not Effectively
Implemented Its Wildlife Hazard Mitigation Program
 FAA “is in the process of amending its regulation to
require”all certificated airports to conduct a Wildlife
Hazard Assessment and to periodically update (OIG
p.4) This will require more than 500 WHA’s over the 5
years.
 Once the regulation has been amended, there will be
much more emphasis on Wildlife Hazard
Assessments.

19. FAA’s Oversight and Enforcement of Airport
Wildlife Mitigation Efforts Are Insufficient
 Oversight and Enforcement of Airports’ Compliance with
Wildlife Hazard Mitigation Requirements Is Lacking
 FAA’s Documentation of Part 139 Inspections was unreliable:
OIG found the checklists used by inspectors to be 75%
inaccurate
 FAA missed opportunities to identify instances of
noncompliance
 FAA does not verify that airports check the qualifications of
wildlife biologists who conduct the required assessments
 FAA’s oversight of airports’ assessments and plans is
limited

20. FAA’s Policies and Guidance for Monitoring,
Reporting, and Mitigating Wildlife Hazards Are
Mostly Voluntary
 Most of FAA’s Policies and Guidance are Voluntary,
thereby limiting the FAA’s effectiveness.
 Voluntary Policies and Guidance Result in Incomplete
Strike Reporting and Data
 FAA lacks Performance Metrics to Measure Progress
Toward Its Program Goal

21. FAA’s Coordination with Most Government
Agencies on Wildlife Hazard Mitigation is
Limited and Infrequent
 FAA has deferred its Wildlife program to the USDA’s
Wildlife Services.
 Interagency Coordination with other Agencies is
limited
 FAA does not coordinate with agencies to resolve
permit issues

22. Recommendations In General
 OIG had 10 specific recommendations, but here are
general issues that the OIG thought the FAA should
cover:
(1) FAA must improve its management processes by
improving oversight and enforcement of Program
regulations;
(2) Make strike reporting mandatory;
(3) Establish performance metrics;
(4) Strengthen coordination with other governmental
agencies.

23. Recommendations to Airports
 There are three of the specific recommendations that
Airports need to be aware of – even though FAA objected to
them. These are:
 4. Require that airports, as part of their wildlife hazard
management plans, maintain reports of all wildlife strikes
and submit the reports quarterly to FAA for review.
 5. Require inspectors to verify that airports’ quarterly
wildlife strike reports contain key data fields, such as extent of
damage, species of wildlife, phase of flight, altitude that the
strike occurred, and effect on flight; and to contact the
airports with any incomplete or missing data to obtain the
information, if available.
 6. Reconcile the airports’ quarterly reports with FAA’s
National Wildlife Strike Database and ensure any missing
strikes are entered into the database.

24. Recommendations to Airports:
Notification
 Recommendation 9: “Establish notification
procedures with other government agencies to
notify FAA of project proposals that may increase
hazardous wildlife populations within a 5-mile
radius of airports.”
 This will go a long way to correcting the information
gap that may catch airport operators off-guard – if FAA
shares that information.

25. Recommendations to Airports: Inspection
and Inspectors
 Indirect effect on airports: FAA inspectors are going to
be more thorough in their inspections of airports
 FAA inspectors are going to check qualifications of
Wildlife Biologists who perform WHAs
 FAA Inspectors are going to be more knowledgeable
about Wildlife Hazard issues.

26. Program Guidance Letter 09-01 regarding
Use of Private Wildlife Biologists
 FAA PGL 09-01 Eligibility of Wildlife Hazard Assessments states
that you must first go to the private industry before using USDA-
WS
 “There may be a national shortage of qualified airport wildlife
biologists in the private sector to conduct these assessments. If after
soliciting qualifications from private sector consultants the airport
sponsor determines that a qualified airport wildlife biologist is not
available to complete a wildlife hazard assessment, the sponsor may
utilize the services of the WS.”
 Must certify that there is no qualified private Wildlife Biologist
available before using USDA-WS
 “However, the sponsor must certify to the FAA that they followed
Title 49 CFR Section 18.36 and that no qualified consultants were
available. The certification should be submitted with the sponsor’s
application.”

28. Airports MUST Know What Is Going on
Within 5 Miles of the Airport
 Need to know what is going on within 5 statute
miles of the airport. And airports need to take
reasonable efforts to stop land uses that will create
wildlife attractants, otherwise they may be in
violation of their grant assurances.
 Airports need to push FAA to require notification
from proponents of incompatible land uses
pursuant to its authority under 49 U.S.C. § 44718

29. Wildlife Hazard Assessment and Wildlife
Hazard Mitigation Programs are essential
 Make a mitigation program and stick to it. FAA is
going to push back on the airports because of the
OIG’s Audit Report because FAA perceives that
airports have more authority to carry out the issues
that OIG is concerned about.

30. Increased Liability and Risk for
Airports Due to Wildlife Hazards.
 Increased liability for airports for wildlife hazards is on
the way.
 Liability for bird strikes may land in the airports’ laps.
Aircraft owners may start presenting the bills for
aircraft damage to airports who have not done enough
to mitigate the wildlife hazards.

31. Contact Information
Steven M. Taber
Taber Law Group, P.C.
P.O. Box 60036
Irvine, California 92602
(949) 735-8217
E-mail: staber@taberlaw.com
Website: http://taberlaw.com
Blog: http://airportlaw.wordpress.com
Twitter: @TaberLawGroup