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The US Department of Interior Drops the Gauntlet on SpaceX and the FAA
A new EIS is the Least of Elon's concerns now
SpaceX is headed for an EIS
Fresh off the heels of correctly identifying that Starbase approval wasn’t going to happen on 12/31, I’m back at it. This time it’s a doozy.
Note: I’ve consulted with two Section 4(f) experts for this piece. It’s a dynamic situation.
Let’s Talk Section 4(f) of the Department of Transportation (DOT) Act
As a summary, the debate up to this point has been whether the environmental impacts of Starbase’s future plans are below significance thresholds under the National Environmental Policy Act (NEPA). FAA and SpaceX’s Programmatic Environmental Assessment (PEA) is a stripped-down environmental review document built on the assumption that all impacts are either insignificant (de minimus) or can be mitigated to be such once the EA is finalized with a Finding of Non-Significant Impact (FONSI) statement from the FAA.
If any impacts are determined to be of significance, the FAA is required to initiate a full-blown Environmental Impact Statement (EIS), which would be a multi-year process. An EIS would be required to be drafted, reviewed, completed, and certified before any Heavy Booster static fires, Starship launches, or commitment to further launch infrastructure development can commence. So a lot is on the line here.
FAA is the final authority for this determination and they seem pretty determined to let SpaceX have their way in South Texas. That being said, the FAA is required to follow its own guidance and policy documents as well as any intertwined federal rules that are separate from (but often parallel to) NEPA.
One of these rules is the Department of Transportation (DOT) Act. In particular, section 4(f) of the act regulates DOT actions that might impact “Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites.” In case you weren’t aware, Starbase is surrounded on all sides by hundreds of acres of federal wildlife refuge, in addition to nearby National Park Service protected monuments (Palmito Hill Battlefield Memorial) and Texas Parks and Wildlife lands.
The FAA’s own NEPA documents for section 4(f) impacts have very specific criteria for NEPA significance levels, as follows:
The action involves more than a minimal physical use of a Section 4(f) resource or constitutes a “constructive use” based on an FAA determination that the aviation project would substantially impair the Section 4(f) resource.
An astute reader might point out that “based on an FAA determination” gives the action agency the final say in the matter, but unfortunately for Musk and Company, the law itself isn’t so forgiving.
Land Use Determination
There are a few definitions at play here, so we’ll cover them in some detail:
Use - Use of a Section 4(f) property means the physical, permanent taking or incorporation of covered property. Had the PEA required SpaceX to permanently encompass federal wildlife preserve by handing over land rights, for example, that would be an example of “Use.” That didn’t occur, but there’s some debate as to if SpaceX is effectively taking over the land via road closures.
Constructive Use - Per the rule, “A constructive use occurs when the transportation project does not incorporate land from a Section 4(f) property, but the project's proximity impacts are so severe that the protected activities, features, or attributes that qualify the property for protection under Section 4(f) are substantially impaired. Substantial impairment occurs only when the protected activities, features, or attributes of the property are substantially diminished.”
This definition is broader than “Use” and things like rocket debris being scattered over the refuge or heat plumes from rocket launches scorching the fauna would act as a constructive use of the land. Road closures are also at play here.
Temporary Occupancy- A a use of Section 4(f) lands that is temporary and minor. This could be something like a limited number of road closures per year or needing access to the land for retrieval of rocket debris
De Minimus - This is an activity (for parks and wildlife refuges) “that will not adversely affect the features, attributes, or activities qualifying the property for protection under Section 4(f)”
Regarding SpaceX, here is what the draft PEA determined would be the Section 4 impacts:
The Potential For Adverse Effects determinations were those that are covered under Section 106 of the National Historic Preservation Act. These can be mitigated by having a complete 106 Determination, which would include prescribed requirements. It’s not relevant to this discussion.
The temporary occupancy and de minimus determinations are where the drama is. The FAA can make any determination they want (see example below):
That being said, the DOT Act itself (as well as FAA’s own guidance) indicates that for Temporary Occupancy “There must be documented agreement of the official(s) with jurisdiction over the Section 4(f) resource.”
Additionally, by law, “Prior to making de minimis impact determinations (sic) the official(s) with jurisdiction over the Section 4(f) resource must concur in writing that the project will not adversely affect the activities, features, or attributes that make the property eligible for Section 4(f) protection.”
This is bad news for SpaceX if The US Fish and Wildlife Service and the National Park Service don’t concur with these preliminary FAA determinations. They certainly had some thoughts almost exactly one year ago on, according to a FOIA’d letter from USFWS. Parabolic Arc had a post on it.
“Frequent closures of the Refuge caused by SpaceX activities are already substantially impairing both the Refuge’s ability to adequately manage the Refuge and the public’s enjoyment of the Boca Chica Beach area for wildlife-dependent recreation. There are both ‘adverse’ and ‘severe’ impacts to Refuge public use, management, wildlife, and habitat from the SpaceX activities,” the letter said.
They’re citing section 4(f) language here. Had you checked the appendices to the Draft PEA, you’d have noticed the terse exchange between USFWS and FAA where the Wildlife agency states in August of 2021:
“At the outset, the FWS advises the FAA that ongoing activities (i.e, the SpaceX Starship/Super Heavy Project) previously permitted already result in a constructive use, as defined under Section 4(f). SpaceX activities already exceed the 300 road closure hours of FAA-permitted operations.”
They illustrate other Section 4(f) disagreements, but here is a fundamental disconnect. SpaceX’s PEA claims that there will be no Section 4(f) impacts from the project going forward. USFWS is stating, outright, that not only do we think the project will have an Adverse effect, but it’s already a 4(f) constructive use before the project even started. They are pointing out, not so subtly, that the existing EIS from 2014 was already inadequate.
FAA appears to be trying to bully the agency in submission since they are at the mercy of Section 4(a) land administrators (e.g. the Fish and Wildlife Service). USFWS had been telling them for nearly a year that this was an EIS level project!
In November, as a response to the Draft PEA, the Department of Interior took the gloves off. The joint letter from The National Parks Service and Fish And Wildlife Service and appendices can be found here via the FOIA portal. Some highlights:
These on-going closures extend beyond temporary Section 4(f) property use that is typically considered under Section 4(f) under DOT modal administration Section 4(f) regulations at 23 CFR 774.13(d).
Closure of Palmito Ranch Battlefield NHL to the public 11.4% of the year for launch operations (which does not include closures related to anomalies of up to an additional 6.8% per year) would impair public access to the NHL on a continual basis, and thus contribute to a Section 4(f) use. Restrictions to access substantially diminish the utility of the NHL (visitor use, education, and enjoyment) and thus reduce the ability to meet the NHL's purpose.
…further analysis of the temporary on-going impact of the Project from closures on established purposes of the NWR, such as on 3 recreation and wildlife management, and anomaly events that result in debris on the NWR that will need to be removed, is warranted given the extensive interference and substantial impairment caused by access restrictions that will be permanent during Project operations. The FWS believes that a Section 4(f) use exists and requests FAA provide further clarification.
SpaceX appears to be a permanent facility. As such, continued closures of the road prevent public access to NWR lands and prevent staff and researchers from accessing lands they manage. This adversely and permanently impairs FWS attributes and protected activities as long as SpaceX continues to frequently close State Highway 4. This should be addressed as something other than a temporary or de minimis impact because it is part of a permanent operation plan.
“Occupancy of the Section 4(f) properties would be short term, and there would no permanent or residual effects to the properties lasting beyond occupancy.”
Comment: 100% of scattered debris has not been retrieved. Sharp metal parts can be found below the sand and may not be visible during retrieval of debris. In addition, ruts on algal flats do not recover very easily. The SpaceX contract environmental cleanup should use only specialized personnel and equipment designed to protect and restore the sensitive habitat types found in the area. The Space X should not be allowed to prohibit FWS staff, TPWD staff, NPS staff, or other agency representatives and their researchers to enter to collect biological and cultural resource data even during closures, and ensure SpaceX contract or fund collection of data on impacts to sensitive habitat types and wildlife species impacted by anomalies.
The DOI flatly rejects nearly every single Section 4(f) de minimus and temporary occupancy determination. Their sign-off, in writing, is required by statute for FAA to approve the Section 4(f) determination.
FAA’s guidance states that “When a project would involve the use of a Section 4(f) property and the FAA cannot make a de minimis impact determination, the FAA must prepare a Section 4(f) evaluation.”
The FAA cannot make a de minimus determination, because they don’t have approval from the DOI to do so. That means that this is an EIS project.
Summary: The FAA has no Legal Ground to Stand on to Forego a Full EIS (but it gets worse)
Not only are FAA’s hands tied on the EIS front, a full Section 4(f) Evaluation is a potential nightmare. This evaluation requires the identification of a suitable alternative that is both “Feasible and Prudent.” If this Feasible and Prudent alternative site will have a lower Section 4(f) impact, the FAA is prohibited from giving the Green Light to Starbase. At all. This is outside of NEPA as well. So if, for example, the Cape Canaveral LC 39 pad that SpaceX is developing is determined to be a feasible and prudent alternative, Starbase is dead. Dead Dead.
Both section 4 experts I’ve consulted for this piece agree that LC 39 is basically a poster boy for something that meets the “Feasible and Prudent” alternative. But that’s a legal fight for another day.
What saves the day?
The USFWS must concur with the FAA’s de minimus and temporary occupancy determinations. That’s the only thing that can possibly allow a FONSI this year and forgo a full-blown EIS.
I’d be remiss if I didn’t point out that USFWS appears to have taken some of my talking points to heart
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