Regulatory Alert: FAA Releases Draft Policy on Processing Airport Land Use Changes

The Federal Aviation Administration (FAA) on September 14 released a draft policy that outlines how the agency will process and evaluate an airport sponsor's request for a land use change on federally acquired or federally conveyed airport land. The proposed policy is primarily applicable to requests from airports that want to use land for non-aeronautical purposes and the land was either acquired with federal funds or received from the federal government with specific restrictions.

In the draft, FAA emphasized that the agency must approve all non-aeronautical and mixed uses of federally acquired or federally conveyed land. The purpose of the proposed policy is to outline for airports what to submit to the agency when requesting such a land use change, how FAA will evaluate the request, and how the decision will be documented.

FAA is expected to publish the draft policy in the Federal Register on September 15 and has provided a 30-day window for airports and the public to provide feedback. The deadline for responding is expected to be Monday, October 17. Airports are encouraged to carefully review the proposal and notify AAAE of concerns or any other issues. As we consider filing comments, our focus is on ensuring that FAA does not create any new burdensome processes or unreasonably inhibit airports from using land for non-aeronautical purposes.

Background. Under current law, FAA has the authority to convey federal surplus property and provide funding for airports to acquire land when the land is needed for “airport purposes,“ such as for an aeronautical use (e.g., runway protection zone) or to serve as a noise buffer. This federally conveyed or federally acquired land must be used for airport purposes unless FAA approves or consents to a non-aeronautical use.

While Congress recently scaled back FAA's authority over non-aeronautical land use through the 2018 FAA reauthorization bill, also known as “Section 163,“ FAA retained authority to regulate an airport's use of land that was acquired using federal funds or received from the federal government through a written deed with specific restrictions.

Summary of Draft Policy. The goal of the proposal is to clarify and confirm FAA's policy and procedures for processing requests from airports pursuing a land use change on federally acquired or federally conveyed land. The following are highlights of key topics and takeaways from the draft:

• Applicability: Types of Land Use Subject to Policy. FAA noted that the use of airport land will fall into one of four categories: (1) aeronautical use; (2) airport purpose; (3) non-aeronautical use; or (4) mixed use. The agency defines and explains each of these terms in the proposal. If land will be used for an aeronautical use or airport purpose, no consent or approval is needed. As a result, the policy regarding the review and evaluation process is focused on land that will be used for mixed or non-aeronautical purposes. 

• Process for Requesting Land Use Changes. If an airport proposes to use federally acquired or federally conveyed land for either mixed or non-aeronautical purposes, FAA must issue an approval before the airport can move forward. The policy explains how they will process these types of requests. First, airports will have to submit documentation on how the land was acquired, information about current and future aeronautical demand for the airport and the land, and the proposed non-aeronautical use, including length of the proposed lease for such use. FAA will evaluate the request based on several factors and either deny the request or issue a letter of approval. 

• Standard for FAA Issuing Approval. The draft policy is not very clear on how FAA will evaluate and approve requests and whether the agency will have different standards depending on whether land will be used for mixed or non-aeronautical purposes. However, FAA suggests that the primary considerations will include: (a) reasonableness and practicality of the sponsor's request; (b) effect of the request on needed aeronautical facilities; and (c) compatibility of the proposal with the needs of civil aviation. FAA suggests that a proposed use conflicting with the current or future aeronautical demands at the airport are unlikely to be approved. 

• Expiration of FAA's Approval. If FAA issues an approval for land to be used for mixed or non-aeronautical purposes, the agency notes approval will be limited to the duration of the lease term. The agency also emphasizes that the letter of approval must include a requirement that the land be available for aeronautical use at the end of the approval period. While the draft policy does not address this situation, airports would presumably have to seek another FAA approval to extend a lease. 

What's Next? FAA plans to publish the proposed policy in the Federal Register on September 15. AAAE will be engaging with members to determine whether to file comments in response, which must be provided to the agency on or before Monday, October 17. After consideration and adjudication of the comments, FAA noted that the agency will publish a final version in the Federal Register at a future date.