Federal Aeronautical Considerations (13-FD-d)
For any notice filed with the FAA pursuant to 49 USC 44718 - Structures Interfering with Air Commerce, the United States Department of Defense will conduct a preliminary assessment to determine whether the project will have an adverse impact on military operations and readiness. The DOD will only object to a project by making a determination of unacceptable risk. Prior to FAA notice, the DOD encourages developers to voluntarily request informal project screening via the DOD Clearinghouse Mission Compatibility Evaluation, which can help to streamline the DOD’s assessment of risk to military operations later on in the process and also identify potential problems at an earlier stage.
Generally, construction or alteration projects that include objects 200 feet above ground level (or higher) require developers to submit notice of the project to the FAA. In addition, construction or alteration projects that breach an ‘’imaginary surface’’ (as defined in 14 CFR Part 77.19 at specified slopes require developers to submit notice. Finally, the FAA may otherwise require notice. The FAA will evaluate the project based on obstruction standards and other factors in order to determine whether the construction or alteration will have a substantial aeronautical impact. Even where the FAA determines that there is no hazard to air navigation, they may include conditional provisions, limitations necessary to minimize potential problems, lighting/marking recommendations, and/or supplemental notice requirements. 14 CFR Part 77.31.
Aeronautical Considerations Process
13-FD-d.1 – to 13-FD-d.2 Does the Developer Voluntarily Request Informal Review of the Project’s Effect on Military Operations?
Certain development projects may pose an unacceptable risk to military operations and readiness. Where notice to the FAA is required for a particular project, the DOD will be involved in a formal process of determining the level of risk the project poses to military operations and readiness. However, developers may voluntarily request informal review of a proposed project’s risk to military operations by following the process fully described in DOD Clearinghouse Mission Compatibility Evaluation Process:
13-FD-f Requesting informal review can benefit the developer by providing upfront information regarding potential project issues and allowing for more time in planning mitigation strategies. In short, the informal review process minimizes the risk of a surprise determination during the formal review process.
13-FD-d.3 – Will the Project Include an Object at Least 200 ft. Tall?
The maximum height of a proposed structure can implicate FAA notice and approval requirements for the project. 14 CFR Part 77.9 requires developers to give notice to the FAA of any proposed construction or alteration that is more than 200 feet above ground level.
13-FD-d.4 - Will the Project Include an Object that Breaches an “Imaginary Surface” of an Airport?
Proximity to an airport is also an indication that the proposed construction may interfere with airspace operations. Even if the proposed construction or alteration is less than 200 feet above ground level, notice is required for: “. . . Any construction or alteration that exceeds an ‘’imaginary surface’’ extending outward and upward at any of the following slopes:
- 100 to 1 for a horizontal distance of 20,000 ft. from the nearest point of the nearest runway of each airport described in paragraph (d) of this section with its longest runway more than 3,200 ft. in actual length, excluding heliports.
- 50 to 1 for a horizontal distance of 10,000 ft. from the nearest point of the nearest runway of each airport described in paragraph (d) of this section with its longest runway no more than 3,200 ft. in actual length, excluding heliports.
- 25 to 1 for a horizontal distance of 5,000 ft. from the nearest point of the nearest landing and takeoff area of each heliport described in paragraph (d) of this section. . .”
14 CFR Part 77.9 defines the different types of “imaginary surfaces,” which are notably different for airports that are public as opposed to military airports. Developers should consult both the nearby airport and the FAA with any questions regarding the technical distinctions of “imaginary surfaces.”
13-FD-d.5 to 13-FD-d.6 – Did the FAA Otherwise Request Notice of the Project?
Even when the project does not fall into the categories described in 13-FD-d.1 and 13-FD-d.2 above, the FAA may still require formal notice of the project where other factors exist that may present a hazard to air navigation. For example, any construction within the boundaries of an airport may trigger a notice requirement to the FAA. Where none of the above categories apply and the FAA does not request notice, no permit is needed and the developer may continue with the project.
13-FD-d.7 - Notice of Proposed Construction or Alteration (Form 7460-1)
13-FD-d.8 – Notify DOD of Proposed Construction or Alteration
Even in cases where the developer went through the informal review of a project’s risk to military operations and readiness via the DOD Clearinghouse (as explained in 13-FD-d.1 above), the Section 358(e) requires the United States Department of Defense to formally determine whether the level of risk that new construction or alteration will negatively impact military operations is unacceptable. The review is triggered whenever the FAA receives a Notice of Proposed Construction or Alteration (Form 7460-1). Although the United States Department of Defense ultimately has responsibility for making these determinations, developers may consult the DoD Preliminary Screening Tool, provided by the FAA , that aids in evaluating potential impacts the construction project may have on United States Department of Defense operations.
13-FD-d.9 – Does the DOD Object to the Project Due to Unacceptable Risk?
The United States Department of Defense will only object to project proposals where the risks presented to military operations, readiness and national security are “unacceptable.” Where risks exist that do not amount to the level of “unacceptable,” the United States Department of Defense may attach conditions for risk mitigation in lieu of objecting to the project.Section 358(e). Developers that submitted to the informal review process via the DOD Clearinghouse (as explained in 13-FD-d.1 above) will likely have prior awareness of necessary mitigation conditions.
13-FD-d.10 – Determination of Unacceptable Risk to Military Operations and Readiness
Where the United States Department of Defense objects due to unacceptable risks to military operations, readiness and national security, the project cannot continue.
13-FD-d.11 – Does the FAA determine that the Project has a Substantial Aeronautical Impact?
Assuming the United States Department of Defense does not object to the project, the FAA still must evaluate the project based on obstruction standards and other factors in order to determine whether the construction or alteration will have a substantial aeronautical impact. Objects that meet the standards for obstruction are presumed hazards to air navigation unless further aeronautical study concludes that the object is not a hazard. The applicable obstruction standards include:
- Objects at a height of 499 feet above ground level.
- Objects at a height of 200 feet above ground level (or above the established airport elevation) within 3 nautical miles of the established reference point of an airport, excluding heliports, with its longest runway more than 3,200 feet in actual length. That height increases in the proportion of 100 feet for each additional nautical mile from the airport up to a maximum of 499 feet.
- Objects at a height within a terminal obstacle clearance area, including an initial approach segment, a departure area, and a circling approach area, which would result in the vertical distance between any point on the object and an established minimum instrument flight altitude within that area or segment to be less than the required obstacle clearance.
- Objects at a height within an en route obstacle clearance area, including turn and termination areas, of a Federal Airway or approved off-airway route, which would increase the minimum obstacle clearance altitude.
If the FAA issues a Determination of Hazard to Air Navigation, the project construction may not commence. The regulations allow for petitions of discretionary review of a determination, revision, or extension of a determination issued by the FAA. The petition must be filed within 30 days after the issuance of a determination and effects of the determination are inoperative pending disposition of the petition. The FAA will revise, affirm, or reverse the determination – at which point the decision is final. . 14 CFR Part 77.37-41
Even where the FAA determines that there is no hazard to air navigation, they may include conditional provisions, limitations necessary to minimize potential problems, lighting/marking recommendations, and/or supplemental notice requirements. 14 CFR Part 77.31. Determinations of No Hazard to Air Navigation operate for a period of 18 months, renewable once. 14 CFR Part 77.35. Developers must construct the triggering project within the 18 month (or renewal period) period. Once construction is complete, developers would only need to give further notice to the FAA for a new construction project or an alteration to an existing structure that triggers the process.
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