Whether it’s a proposed Airport Layout Plan (ALP) change, a change in land use from aeronautical to non-aeronautical, or a request to dispose of airport-owned land, the FAA must determine whether or not the proposal is subject to the agency’s approval authority (Oct. 27, 2020 internal FAA memo).
Airport sponsors who have become familiar with Section 163 as standard process may wonder if they know the outcome, do they really need to go through the process to get a 163 determination. The answer is yes, said Barbie Schalmo, AICP, associate director, C&S Companies.
Schalmo and Catherine van Heuven, partner, Kaplan Kirsch & Rockwell, recently spoke at a Section 163 virtual summit hosted by the Northeast Chapter of AAAE. They, along with C&S Companies director Kelly Moulton, CM, ENV-SP, are authors of the guidebook, “Navigating Section 163: A Guide to Facilitating Non-aeronautical Development at Your Airport.” The guide published in September 2021 is available at www.section163.com.
Van Heuven agreed even if something is obviously regulated by the FAA, the airport needs to go through the 163 process.
"Remember that the FAA has to build a record to make sure that it is appropriately exercising its authority," she said.
The FAA October 2020 memo offering internal guidance says: “The first step is to determine if FAA has ALP approval authority (under section 163(d)). The second step is to determine how the land was acquired (and therefore if a release of obligations may be required (under section 163(a)).” The memo summary notes: "These are internal instructions for implementation of FAA’s statutorily revised authorities over use of airport property and do not require new actions from airport sponsors."
Why is the Burden of Proof on Airports?
Yet, a summit participant noted the burden of proof seems to be on airports and asked why.
“The answer is it’s not,” Van Heuven said. “The burden of proof is on FAA because FAA is the regulated entity regulated by Congress… But, in practice, it’s your project at the airport and you’re the one who really wants it to go quickly. What we can do, and why we outline this as best practices, is to make FAA’s life as easy as possible in deciding whether it retains regulatory authority.”
Van Heuven also suggested, “Don’t focus on the fact that you need to get a 163 determination. This is such a simple process if it's obvious that the FAA retains authority. And you can help by moving this along extremely swiftly by writing your letter to the ADO (Airport District Office)."
She said the letter should state what the airport intends to do and why FAA retains regulatory authority (for example, AIP (Airport Improvement Program) money or Surplus Property Act).
Documentation is important because FAA needs a record to ensure itself that it does retain regulatory authority, Van Heuven said.
Schalmo said it's important to have an ALP property map properly put together and understand the property, including how were the parcels acquired and is the parcel ripe for development (market alignment).
Has the FAA Developed a Checklist?
No, van Heuven said, “FAA has given us this guidance document (the memo) that says how they’re going to look at each question. So, for any new project, we go through the questions in the order FAA has presented them:
- Is there FAA ALP approval authority?
- Do we retain land use authority?
- Are we going to materially affect any of these zones of interest?
- Was there an AIP grant involved?
- Was it surplus property act?
“Those are the questions we ask for each and every project, whether or not it it’s non-aeronautical land, whether or not there was a prior NEPA (National Environmental Policy Act review/airport environmental review) approval. We ask each set of questions again considering the project.”
Van Heuven suggested, “Think about how they’re going to review your project and line up your request to match that.” And, she said provide all of your deed work.
"The easier you make it for them, the quicker they get," Moulton said.
How Long Will a Section 163 Determination Take?
The FAA does not have an articulated timeframe for this review and determination process, Schalmo said.
Aeronautical vs. Non-aeronautical Property?
“Don’t focus on nonaeronautical vs. aeronautical,” said van Heuven, who also noted the terms are not part of the Section 163. “Focus on the test in the statute.”
“This is absolutely project and specific,” she said. “Where is your movement area? Where is this particular structure? Each airport has its own story. Each of you have your own 163 facts.”
What happened pre-Section 163 is irrelevant, she said, “each new project now in wake of 163 is a new question mark of whether or not we retain approval authority going forward. For new projects, we go through the series of flow questions.”
How Does Part 163 Govern FAR Part 150 Noise Parcel Land Acquisition?
“To my knowledge, the FAA has not yet issued a determination on noise land,” van Heuven said.
Not everything is answered by the FAA’s guidance document. They’re working on updates, Van Heuven said, "as different airports go through different projects, we see new things that the guidance doesn’t really address."
Is Section 163 Really Good for Airports?
In the grand scheme of things, Schalmo said, “I think the hope is still, especially as additional guidance is created, that this can considerably shorten the approval process over the long haul and for certain properties.
NEPA and other environmental laws may not be applicable after the Section 163 determination process due to the regulatory authority being removed for a certain property.
“It makes commercial development on airports far more competitive with their local market area,” Schalmo said. Airports may have had to tell developers that they had to go through a process that could take 8 to 18 months.
“That can be very scary and, in fact, a deal killer for a lot of external commercial development that could be a revenue source for your airport,” she said.
Because NEPA may not be applicable, she said the public process can be removed, which she said for some decisions is fine and in others can raise some red flags.
Other times, she said the FAA funds that had been available previously may no longer be available because the FAA no longer has authority in this particular development.
