Appendix 7. FAA/DOD Memorandum of Understanding

MEMORANDUM OF UNDERSTANDING BETWEEN
THE FEDERAL AVIATION ADMINISTRATION AND
THE DEPARTMENT OF DEFENSE
Concerning
Environmental Review of Special Use Airspace Actions

I. Purpose and Scope.

The purpose of this Memorandum of Understanding (MOU) is to describe the guidelines for compliance with the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321) and the Council on Environmental Quality (CEQ) Regulations (40 CFR Parts 1500-1508) without unnecessary duplication of effort by the Federal Aviation Administration (FAA) and the Department of Defense (DOD). This MOU promotes early coordination between FAA and DOD during the environmental review process associated with the establishment, designation, and modification of Special Use Airspace (SUA); permits the application of “lead agency“ and “cooperating agency" procedures to environmental assessments (EA) and findings of no significant impact as well as to environmental impact statements (EIS); and provides for the issuance of environmental documents for the development, designation, modification, and use of SUA.

II. Definitions.

The definitions contained in the CEQ Regulations (40 CFR Parts 1500-1508), FAA Orders, and relevant DOD and/or Service guidance are applicable to this MOU.

III. Designation of Lead and Cooperating Agency.

A. Introduction: The actions taken by DOD and FAA in the establishment, designation, or modification of SUA are subject to environmental impact evaluation pursuant to NEPA, as implemented by the CEQ regulations. The CEQ regulations encourage a lead agency be designated where related actions by several Federal agencies are involved.

The lead agency, in such instances, is responsible for consultation with other agencies, for coordination of appropriate environmental studies and evaluations, and for preparation of any NEPA-related determinations or documents in cooperation with other Federal agencies. Each agency recognizes the need to eliminate duplication. The cooperating agency assumes responsibility to independently review the environmental documents prepared by the lead agency and to assess whether the environmental documents meet the standards for adequacy under NEPA.

The DOD and the FAA will ensure appropriate consideration of all actions and impacts, including cumulative impacts. The resultant environmental documents of the lead agency are accepted and used in decisions and planning by all agencies involved with the proposed action.

B. Designation of lead agency. When the DOD proposes that the FAA establish, designate, or modify SUA, the DOD shall serve as the lead agency for the evaluation of environmental impacts and the preparation and processing of environmental documents. However, when the FAA proposes the establishment, designation, or modification of SUA affecting DOD, the FAA shall serve as the lead agency for the evaluation of environmental impacts and the preparation and processing of environmental documents.

C. Designation of cooperating agency. When the DOD proposes that the FAA establish, designate, or modify SUA, the FAA shall act as a cooperating agency for the evaluation of environmental impacts. However, when the FAA proposes the establishment, designation, or modification of SUA affecting DOD, the DOD shall act as a cooperating agency for the evaluation of environmental impacts.

IV. Level of Environmental Documentation

A. General. Environmental documentation will be processed in accordance with applicable FAA Orders, and DOD and/or Service directives.

B. Categorical Exclusions. Where the actions of one agency are subject to a categorical exclusion (CATEX), and the actions of the other agency, with respect to the same SUA request, require an EA, the agency requiring the EA will prepare the appropriate environmental documentation. The applicability of a CATEX to parts of the actions of one of the agencies will be noted in the environmental document. The background information in support of CATEXs, identified by either DOD or FAA, shall be forwarded to the agency requiring preparation of the EA and may be used by either agency, as allowed by their respective regulations/directives. When the categorical exclusion of the proponent is not listed in FAAO 1050.1E, Chapter 3, which would require FAA to prepare the environmental documentation; FAA budget constraints may delay processing and implementation of a proponent's proposal.

V. General Guidance

A. Scheduling. Whenever an action under this MOU requires cooperation or coordination between the FAA and DOD, the two agencies shall agree on a schedule to ensure that required actions are taken on a timely basis. Each agency will notify the other of any difficulty with meeting scheduled deadlines or any need to revise the schedule.

B. Resolution of disagreements. If the FAA and DOD fail to reach agreement at the normal working level on any issue relating to environmental processing of SUA proposals, the matter will be referred, in ascending order, as outlined in the table below. At any time, the FAA's Office of the Chief Counsel and the Office of the General Counsel of the Service Department involved shall be consulted for assistance with legal issues.

VI. Effective Date. This MOU shall become effective on the last signature date below and shall remain in effect until otherwise rescinded or modified by both signatory parties. If either party determines that it is necessary to amend this MOU, the other party shall be notified in writing of the specific change(s) desired, with proposed language and the reason(s) for the amendment. The proposed amendment shall become effective upon written agreement of both parties.

SIGNED: DATE: October 4, 2005

Carl P. McCullough                                                              Michael A. Cirillo

Department of Defense                                                      Federal Aviation Administration