Testimony of Catherine M. Lang, Acting Associate Administrator for airports, federal aviation administration, before the house of representatives, committee on transportation and infrastructure, on residential through-the-fence agreements at public airports: Action to Date and Challenges Ahead.”  September 22, 2010. 

See The Controversy Over “Through-the-Fence” At 75 Airports Across The Country

Chairman Oberstar, Ranking Member Mica, Members of the Committee: 

Thank you for inviting me here today to discuss the Federal Aviation Administration’s (FAA) proposed policy regarding access to airports from residential property.  Since the 1930’s, the United States has pursued the development of a national system of airports to meet the nation’s air transportation demands.  When Congress created the first airport development program, it tasked our precursor agency, the Civil Aviation Authority, with ensuring that airports that receive monies from the Airport and Airway Trust Fund be available for public use and to serve a variety of public purposes. 

As the aviation industry has evolved, there have been many changes, from the types of aircraft and aeronautical users to the way we plan, build, and develop airports to ensure the highest possible levels of safety.  However, one thing has remained constant: when we invest in an airport, Congress has mandated certain guarantees to ensure both the longevity and the public nature of that investment.

We apply this principle in two ways.  First, we indentify the airports critical to our national system because out of the 21,000-some airports and landing strips in the United States, only 3,332 are designated as a part of the “national system of airports,” and therefore eligible for Airport Improvement Program (AIP) grants.  From the inception of this program, a guiding principle in the selection of airports as part of the national system has been the ability of an airport to be expanded and adapted to meet both current and future needs of the public air transportation system.  

Second, it is a long-standing principle that with the expenditure of any federal grant funds certain conditions attach, such as non-discrimination requirements.  In keeping with this principle, every time we make a financial investment at an airport, the sponsor agrees to 39 federal assurances, the vast majority of which are explicitly Congressionally mandated.  These assurances are designed to protect the public aeronautical characteristics of the airport, encourage good airport management, and impose conditions to protect the public purpose for which the investment of taxpayer dollars was made.

These conditions include requirements pertaining to fair and reasonable rates and charges, airport layout plans, maintenance and operation consistent with safety standards, and prohibitions on discrimination and revenue diversion.  We may not always be able to predict where demand will grow and drive future capacity needs, but we can make long-term investments and through the assurances require airport operators to ensure a solid foundation to serve the needs of future aeronautical users.  These principles and assurances have for 60 years protected and expanded the most robust system of airports in the world.

Today, I’ll be discussing the FAA’s proposed policy regarding access to airports from residential property.  Although the vast majority of residential through-the-fence agreements involve general aviation airports, this policy applies to all airports in the NPIAS.  I’d like to explain why we decided to initiate a policy review earlier this year, how we conducted that policy review, and what we learned.  My testimony will be confined to airport compliance and capacity issues and will not address any potential security issues. 

In order to frame this discussion properly, let me first explain what a public use airport is and how it differs from a private airpark.  Our national plan of integrated airport systems (NPIAS) is comprised of public use airports that must be open to all aeronautical users, must be sufficiently expandable and adaptable so as to accommodate new aircraft types, and must develop in a way that meets FAA safety standards. These airports are eligible for federal Airport Improvement Program grants.  Conversely, private airparks are financed and maintained by the aviation community that uses them and are free to set their own standards for use, access, and safety. 

Through-the-fence access agreements create a right to taxi an aircraft from adjacent or nearby private property across the airport boundary through an established access point. Historically, FAA’s national policy did not focus on residential through-the-fence access to federally obligated airports.  Rather, the principal focus was commercial though-the-fence access.  In general, we discouraged commercial through-the-fence arrangements in most instances.  To promote self-sustainability of an airport (a statutory grant condition), it is a preferable business practice that airports promote on-airport commercial tenants, and airport layout plans include land for such purposes.  However, airports sometimes lack sufficient space for all commercial interests, and in those limited cases we acknowledge the need for commercial through-the-fence arrangements.  In light of these limited exceptions, we have not banned these types of agreements.  

Operating on the prima facie assumption that residences are inconsistent with the values for expandability and adaptability, we did not consider it necessary to put out guidance explicitly banning residential through-the-fence.  However, ambiguity in the language with regard to commercial through-the-fence agreements left insufficient guidance for field staff.  Our lack of awareness and consideration of this issue was further exacerbated by our heavy reliance on our state aviation partners to conduct land use inspections at GA airports.  

In 1999, the Government Accountability Office issued a report titled “General Aviation Airports Unauthorized Land Use Highlights Need for Improved Oversight and Enforcement.”  This report cited serious deficiencies in the way the FAA monitored sponsor compliance with regard to land use and recommended on-site inspections.  As a result, in 2001, we began conducting land use inspections in each of the FAA’s nine regions, as agreed to with GAO.  

Shortly thereafter, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century established a specific grant program for general aviation airports.  These nonprimary entitlements (NPE) have had a profound effect on the FAA’s relationships with, and expectations from, GA airports.  In working more closely with GA sponsors, we realized that some had a better understanding of their federal obligations than did others.  As a result, we have sought to educate GA sponsors and promote our principles for long-term investment by helping GA airports engage in master planning to identify both immediate and long-term needs.  Since the NPE program started, the FAA has issued $132,483,327 in master planning grants at 1,005 GA airports. 

The FAA’s increased involvement with GA airports led to increased knowledge about their facilities and activities. It was shortly after initiating the NPE program that FAA staff in the field began alerting headquarters about proposals to develop residential housing near, and in some cases, on airport property. 

In the mid-2000’s, the Airport Compliance Division responded to several on-airport residence and residential through-the-fence proposals from airport sponsors and developers.  In light of the national policy of constructing and operating aviation facilities so as to minimize current and projected noise impacts on nearby communities, as well as the agency’s experience with noise abatement and residential encroachment, residential through-the-fence arrangements were viewed as being in conflict with policies on compatible land use planning.  We responded to each request, citing actual and potential violations of the sponsor assurances that could occur as a result of these plans.  In 2007, we issued a Director’s Determination, which stated that residential development adjacent to airport property is an incompatible land use.  We also started training our staff in the field about the need to better educate airport sponsors and to mitigate residential through-the-fence problems.  Unfortunately, the ultimate result was mixed.  Some airport sponsors heeded our advice while others did not, and some FAA regional offices sought to identify and mitigate all existing residential through-the-fence access agreements while others chose to wait until an actual grant assurance violation had already occurred.

As these inconsistencies became apparent, we recognized that a more comprehensive approach was warranted.  At that time, we were in the process of updating our Airport Compliance Manual and used that opportunity to clarify our policy residential through-the-fence arrangements.  New Order 5190.6B states: “under no circumstances is the FAA to support any ‘through-the-fence’ agreement associated with residential use since that action will be inconsistent with the federal obligation to ensure compatible land use adjacent to the airport.”  While this Order is internal guidance and binding only on FAA employees, we realize that it is a widely used reference within the airport community.  Although not required to do so, we made the Order available for public comment for a period of six months.

FAA then followed up the Order by issuing for comment Draft Compliance Guidance Letter 2009-1 - Through-the-Fence and On-Airport Residential Access to Federally Obligated Airports.  The Draft Compliance Letter reiterated our views, in more detail, with regard to through-the-fence access and offered some additional suggestions to FAA staff working with airports with such arrangements.  We received a number of comments from through-the-fence homeowners and other interested parties on both documents.  Neither the updated Order nor the Draft Compliance Guidance Letter offered much discussion with regard to what steps the FAA expected airports with existing through-the-fence arrangements to take.  We now realize that vacuum created a very uncertain environment for what we believe to be approximately 75 of the 2,829 GA airports in the continental United States included in the NPIAS.

In January, the Administrator asked the Office of Airports to review its policy on residential-through-the-fence access.  We quickly assembled a policy review team, which began detailed analysis of a core sample of residential through-the-fence arrangements.  In the course of eight months, the policy review team met with a wide variety of interested parties, including aviation associations, state officials, airport sponsors, and impacted residents. The team also conducted site visits at five airports with residential through-the-fence access.  Additionally, staff reviewed the approximately 250 comments filed in response to FAA Order 5190.B, Airport Compliance Manual and the Draft Compliance Guidance Letter, and began compiling an inventory of federally-obligated airports with known residential through-the-fence access arrangements. 

During its site visits, the policy review team observed a number of concerning conditions first hand.  First, we noted the diversity and complicated nature of the various residential through-the-fence arrangements.  We also learned that while some of these arrangements were entered into over the FAA’s objections; others were erroneously approved by FAA field staff.  Finally, we observed that the residential through-the-fence arrangements we visited had compromised one or more of the inherent features of public use airports that taxpayer-funded projects are expected to support. To be clear, these conditions would make these airports ineligible for inclusion in the NPIAS, were they to be considered today. 

Conversations with interested parties also provided a wealth of information.  Perhaps the most important, and most disconcerting, observation the staff made was the intense protectiveness homeowners feel toward “their” airport and the preservation of their access from their private residence.  At many of the sites we visited, the fundamental distinctions between public use, public purpose airports and private airparks have begun to blur.  While private airparks serve an important and cherished purpose for members of the aviation community, AIP funds must be used strategically and responsibly at NPIAS airports that serve public purposes and retain those characteristics expected from public use airports.  

We are particularly concerned by incidents in which adjacent residents, both with residential through-the-fence access and their neighbors, have attempted to prevent an airport sponsor from preserving its rights and powers regarding airport property or future development, a key grant assurance any recipient of AIP funds must agree to meet. As an example, at one location that we visited the airport sponsor lacks full control of the access points.  When the sponsor proposed a fencing project to rectify this situation, adjacent homeowners objected to the placement of the fence, even though the fence was being placed on airport property. Although we now understand that the project is finally moving forward, we believe the influence adjacent homeowners have had over the airport in the process is inappropriate and creates the potential for additional future problems.  An airport sponsor must retain sufficient autonomy and authority to make crucial planning decisions that ensure the long-term usefulness of the airport and to protect the airport’s role as part of the national system. 

The agency’s statutory charge to invest in a national aviation system for the long-term, coupled with the fact that residential through-the-fence arrangements continue to compromise the ability of some airports to serve the broader public purpose expected of federally-obligated airports, led us to the policy we are proposing.  This policy is two-fold.  While we establish minimum requirements that airports with existing residential through-the-fence access must meet, we are also proposing to amend Grant Assurance 5, Preserving Rights and Powers, to prohibit sponsors from entering into new arrangements. 

Airports with existing access, as defined in the proposed policy, would be required to develop access plans to address general authority for control of airport land access, the safety of airport operations, cost recovery, airspace protection, and compatible land use.  To ensure the appropriateness and adequacy of the mitigation components in these access plans, we would consider the nature and parameters of the sponsor’s agreement with the property owner or homeowners on a case by case basis.   These plans will be approved by the Manager of Airport Compliance in headquarters, and sponsors will have approximately two years to develop their access plans.  While these arrangements continue to be undesirable, we believe this will address our more serious concerns, while offering a common-sense and fair solution for the communities involved.  

Additionally, the policy would require sponsors with through-the-fence access arrangements to immediately depict the access points on their airport layout plans using a “pen and ink” change.  They will have additional time to formally update this document – three years from the date the FAA accepts their access plan.  

Based on what we’ve learned over the last nine months, most of the airports with existing access agreements should be able to satisfy the bulk of our concerns associated with the legal terms and conditions associated with receiving AIP grants.  If the sponsor cannot address these minimum requirements, it will be necessary to reexamine that airport’s role in the NPIAS and evaluate if it should remain in our national airport system.  We would also determine what type of AIP investments continue to be appropriate.  If an airport sponsor refuses to develop an access plan, the FAA may consider initiating an investigation.  

There are currently several airports that have through-the-fence arrangements that are in noncompliance for specific grant assurance violations.  To date, we have not put any sponsors into a noncompliant status solely because they have a through-the-fence arrangement.   This proposed policy will not have a significant impact on the eight noncompliant sponsors.  They will be required to continue working with local FAA staff to develop a corrective action plan to address their grant assurance violations.  Once the FAA accepts that corrective action plan, it will become their residential through-the-fence access plan.  

The proposed policy also establishes a process for renewing or extending existing residential through-the-fence access arrangements as well as addressing the rare circumstance in which an airport with existing access might need to develop a new access point or allow a new homeowner to use an existing access point.  We refer to this limited development of new access points as “additional” access.  For an airport to propose “additional” access, it must have had existing access as of September 9, 2010.  In light of the fundamental concerns that are guiding the new policy, any additional access would be subject to stringent requirements to ensure the new access will not limit the airport’s ability to fulfill its role in the NPIAS.  This is also why we propose to limit additional access agreements to twenty years.  We use twenty years as a natural planning horizon, and it’s also used to define the useful life of most capital grants.  

The proposed policy is currently out for public comment, and the comment period will remain open until October 25, 2010.  My office has worked extremely hard to arrive at a policy that addresses the concerns and needs of state and local governments and of the general aviation community while fulfilling our obligation to protect the role that NPIAS airports play in the national system.  I encourage those users to comment and look forward to receiving their input.  I believe our staff has given full and fair consideration to all the ideas and feedback we have received up to this point in the process, and I assure you that we will continue to be open minded as we review the public comments on our draft policy.  

The FAA’s Office of Airports appreciates the important role general aviation plays in our national aviation system.  GA airports play a vital role in the NPIAS, as well as in their local communities.   For communities all over the country, GA airports have for decades been where we train our pilots, have provided medical and law enforcement response, enabled aviation to be at the front lines of response to natural disasters, been the backbone of agricultural communities, and enabled deliveries to remote locations.  It is for these purposes that Congress enacted the Airport Improvement Program, and it is these purposes that are protected by grant assurances. 

As a result, part of the FAA’s responsibility is to safeguard the general aviation infrastructure in this country.  Based on our experience and observations, we believe that residential through-the-fence arrangements have the potential to do far greater harm than good.  If the control exercised by an airport sponsor is compromised, harm is done.  If an airport that was selected for inclusion in the NPIAS based on a strategic long-term vision no longer has the ability to grow and fulfill its role, harm is done.  If public monies can be spent to correct deficiencies or problems caused by residential through-the-fence arrangements, harm is done. 

The FAA takes seriously its responsibility to make wise, value-maximizing investments with its AIP grant funds. I believe our proposed policy regarding access to airports from residential property reflects the long view this Committee expects us to take when we invest $3.5 billion in our airport system annually. This responsibility must also include the continued advancement of the principles that have built the strongest national aviation system in the world.  We may not be able to predict where the demand will grow or how our capacity needs might change, but we must use every available tool we have to ensure the airports selected to serve in our national system remain flexible enough to expand and adapt.