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Nearly $1 billion in federal grants for interoperable public safety radio projects could be lost unless grant applicants demonstrate compliance with the National Environmental Policy Act before the grant funding deadline of September 30, 2010.

The Public Safety Interoperable Communications (PSIC) grant program was created by the Deficit Reduction Act of 2005 (the Act) (Public Law 109-171), as amended by the Implementing Recommendations of the 9/11 Commission Act of 2007 (Public Law 110-53). Section 3006(a)(2) of the Act established September 30, 2010 as the deadline to expend all previously awarded PSIC grant funds, though pending federal legislation would extend this deadline to September 30, 2012. See H.R. 1819.

Under the Act as amended, the National Telecommunications and Information Administration (NTIA) of the Department of Commerce, in consultation with the Department of Homeland Security, was directed to establish and administer the PSIC grant program to assist public safety agencies in the advancement of interoperable communications. On September 30, 2007, the federal government announced the award of nearly $1 billion in PSIC grant funding to all 56 States and Territories to enhance interoperability nationwide. More than 90 percent ($811 million) of PSIC funds have been designated by State and local agencies for the acquisition and deployment of equipment that will increase emergency communications interoperability.

However, no PSIC grant money may be spent until each eligible project is reviewed under the National Environmental Policy Act (NEPA). NEPA requires all Federal agencies to analyze the possible environmental impacts of actions that a Federal agency implements, funds, permits, or licenses, provided the Federal agency retains some level of control or discretion. The purpose of a NEPA review is to inform Federal decision makers about the environmental impacts associated with their projects (for example, impacts on water resources, endangered species, historical buildings, archaeological resources, or culturally sensitive areas) before construction so that they may make informed planning decisions.

NTIA is the agency responsible for oversight of all PSIC funds. NTIA will determine compliance with NEPA by reviewing the “Statement of Work” submitted by prospective grant recipients for each individual PSIC project. The Statement of Work provides a detailed project description with information ranging from the longitude and latitude of the project location, to site plans, surveys and other data which provide a clear picture of the proposed project, its physical layout and potential impacts on the natural environment, including air and water resources, endangered species, historic sites, and other important national resources.

NEPA review under the PSIC grant program could result in projects (1) needing to be modified or redesigned to reduce or eliminate environmental impacts, (2) requiring an individual site-specific Environmental Assessment (EA) to evaluate the potential for environmental impact, or (3) an Environmental Impact Statement (EIS) developed to assess the extent of the environmental impact of the project under the Council on Environmental Quality general NEPA regulations (40 CFR Part 1500). An EA would provide a snapshot of all potentially significant project impacts on the environment. If these impacts cannot be mitigated, an EIS must be prepared. If an EIS is prepared, the project can only be approved if all adverse impacts have been mitigated to maximum practical extent and the overall project benefits outweigh project risks.

Most projects, however, should be able to comply with NEPA without major modifications, and without the preparation of an EA or an EIS, since NTIA has established four (4) broad project categories that have been deemed to have no significant impact on the environment. Projects that fall within the “no impact” categories automatically comply with NEPA and no further action is required.

The four “no impact” categories established for the PSIC grant program are embodied in a Finding of No Significant Impact (FONSI) which NTIA published in the Federal Register on April 24, 2009 (74 Fed. Reg. 18692). The FONSI for the PSIC grant program determined that the following four project types ordinarily have “no significant impact” on the environment and will thus comply with NEPA without modification: (i) projects that include new and upgraded sites for transmitting and receiving with towers less than 200 feet above the ground and less than 1 acre of ground-disturbing activity; (ii) operations and response centers with less than 1 acre of ground-disturbing activity; (iii) acquisition of mobile infrastructure (e.g. cell-on-wheels), mobile and portable equipment; and (iv) planning and training exercises with less than 1 acre of ground disturbance. As long as project within these four categories do not pose significant risks or impacts to sensitive areas these activities are predicted to have no significant environmental impacts. Nevertheless, if any of these activities involve significant risks or impacts to sensitive areas, they will require further review under NEPA.

But even if a project appears to fit within a “no impact” category, all individual projects will be reviewed by NTIA to determine if the project will involve extraordinary circumstances, defined as an otherwise benign project that involves unusual risks or impacts. The criteria for this determination are listed below. If one or more of the following conditions exist, an environmental assessment must be prepared for the project:

• A potentially significant impact on public health and safety

• A potentially significant impact on species or habitats protected by the Endangered Species Act, Marine Mammal Protection Act, the Migratory Bird Treaty Act, or Magnuson-Stevens Fishery Conservation and Management Act

• A potentially significant impact on a district, site, highway, structure, or objeour categories do not pose significant risks or impacts to sensitive areas these activities are predicted to have no significant environmental impacts. Nevertheless, if any of these activities involve significant risks or impacts to sensitive areas, they will require further review under NEPA.

But even if a project appears to fit within a “no impact” category, all individual projects will be reviewed by NTIA to determine if the project will involve extraordinary circumstances, defined as an otherwise benign project that involves unusual risks or impacts. The criteria for this determination are listed below. If one or more of the following conditions exist, an environmental assessment must be prepared for the project:

• A potentially significant impact on public health and safety

• A potentially significant impact on species or habitats protected by the Endangered Species Act, Marine Mammal Protection Act, the Migratory Bird Treaty Act, or Magnuson-Stevens Fishery Conservation and Management Act

• A potentially significant impact on a district, site, highway, structure, or object that is listed in or eligible for listing in the National Register of Historic Places, affects a historic or cultural resource or traditional and sacred sites, or causes the loss or destruction of a significant scientific, cultural, or historical resource

• A potentially significant impact on an environmentally sensitive area, such as critical habitat, wetlands, and floodplains

• A potential or threatened violation of a Federal, State, or local law or administrative determination imposed for the protection of the environment (Examples of administrative determinations to consider are a local noise control ordinance; the requirement to conform to an applicable State Implementation Plan; and Federal, State, or local requirements for the control of hazardous or toxic substances.)

• An impact on the quality of the human environment that is likely to be highly controversial with regard to scientific validity, likely to be highly uncertain, or likely to involve unique or unknown environmental risks

• Employment of new technology or unproven technology that is likely to involve unique or unknown environmental risks, where the impact on the human environment is likely to be highly uncertain, or where the impact on the human environment is likely to be highly controversial in regard to scientific validity

• Extent to which a precedent is established for future actions with significant impacts

• Potential for significant degradation of existing poor environmental conditions, and initiation of a potentially significant environmental degrading influence, activity, or impact in areas not already significantly modified from their natural condition

• Action related to other actions with individually insignificant but cumulatively significant impacts.

In addition to analyzing the direct and indirect impacts of a specific PSIC project, NTIA will examine the incremental impact of each action when added to other past, present, and reasonably foreseeable future actions no matter whether a federal, state or local agency has undertaken or plans to undertake such other actions. These incremental impacts are referred to as cumulative impacts. “Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time” (40 CFR 1508.7). According to the NTIA, the cumulative impact of multiple project types that fit within the “no impact” categories are not expected to result in significant cumulative impacts to either human health or the environment. See Page 4-91 of the Final Programmatic Environmental Assessment for the PSIC grant program (74 Fed. Reg. 7663).

Given the looming September 30, 2010 funding deadline for the PSIC program, applicants for grant funding should do the following to demonstrate compliance with NEPA. First, streamline the environmental review for grant eligible PSIC projects by designing the project at the outset to fit within one of the four “no impact” categories established by NTIA. Second, the Statement of Work submitted to NTIA by a PSIC grant applicant must be written,

On April 7, 2009, the National Park Service (“NPS”) adopted a plan that will guide the development of wireless services in Yellowstone National Park (“Yellowstone”). Under the new Wireless Communications Services Plan (the “Plan”), visitors to Yellowstone can expect cellular and other wireless devices to work in developed hi-traffic areas of the park. The Plan does not envision bringing wireless coverage to the Yellowstone backcountry or to remote, unspoiled wilderness areas except where there is inadvertent “spill over” coverage from wireless sites serving more developed areas of Yellowstone.

The new Plan takes the form of a Finding of No Significant Impact (“FONSI”) that the NPS adopted under the National Environmental Policy Act (“NEPA”). Before the NPS could adopt the Plan, NEPA required the agency to determine if the increased availability of wireless services could be harmonized with the use, enjoyment and preservation of park resources. The FONSI adopted in connection with the Plan concludes that wireless coverage can be expanded without a significant adverse impact on public use and enjoyment of Yellowstone. A copy of the FONSI is available at http://parkplanning.nps.gov. Yellowstone is the first national park to formalize a wireless communications policy.

ANALYSIS

Plan Overview

Wireless services and infrastructure are essential to daily operations at Yellowstone. For example, wireless services are used daily in park operations, research activities, emergency functions, and by park visitors, contractors, and residents. Wireless facilities range from small-scale stations to monitor stream and thermal features to mountaintop communications sites. Functions include commercial telephone and data transmission, earthquake and other scientific monitoring, two-way radios for park operations and emergency communications, contractor and concessioner operation, FM radio stations, weather-band radio, cellular telephone service, Internet access, satellite TV, remote weather stations, and wireless webcams for resource monitoring. The Plan adopted in the FONIS will protect park resources and values by limiting the location and design of wireless services.

Under the Plan new proposals to install wireless communications services, repeater sites, or equipment will be reviewed by the Yellowstone Telecommunications Committee. This committee will: 1) receive and address requests for wireless service; 2) ensure proposals adhere to the wireless communications plan; and 3 ) make recommendations to the superintendent regarding any action to be taken. The committee will review each proposal for purpose and need, resource impacts, and adherence to the guidance established by the Plan.

The National Park Service was required to examine options for the increased availability of wireless service in parks such as Yellowstone under Section 704(c) of the Telecommunications Act of 1996. Section 704(c) of the Telecommunications Act directs federal agencies to make federal properties, rights-of-way, and easements available for the placement of new telecommunications services, such as wireless antennas. See Notice of Availability of Policy Statement Concerning Access to National Park Service Property for the Siting of Mobile Services Antennas (“Notice of Availability of Policy Statement”) published in 62 Fed. Reg. 19537 (July 23, 1997).

The Telecommunications Act of 1996 directs federal agencies to develop and issue procedures to make available to the maximum extent possible, telecommunication communications facilities on federal lands as long as their placement does not conflict with other federal laws and regulations. The Plan provides for such placement, while still ensuring that park resources including view sheds and pristine “soundscapes” are protected. Prior to the adoption of the plan, Yellowstone had no formal guidelines for assessing the siting or placement of wireless communications facilities.

In adopting the Plan, the NPS balanced its primary mission and responsibility which, as stated in the National Park Service Organic Act, 16 U.S.C. § 1, is to “conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations” with the need to improve operational effectiveness of wireless communications in Yellowstone for the benefit and safety of park visitors, employees, residents, contractors, and concessioners.

The Plan recognizes that visitors tend to congregate in the developed areas of Yellowstone. By providing wireless service to these areas, the NPS expects to respond better to emergencies. However, the NPS acknowledges that hoards of visitors using mobile phones can undermine the park experience. To reduce annoyances and distractions from cell phone use prominent “courtesy signs” will establish cell phone free area where visitors can enjoy the natural surroundings without the intrusion of mobile ring tones and intrusive cell phone conversations. Wireless courtesy signs will therefore be installed to educate and encourage users of wireless communications technologies to act in a considerate manner. Such signs are presently used to help educate and guide visitors in protection of other resources, such signing advising visitors to “please stay on boardwalk” or “please don’t throw objects into thermal features.” Whenever possible signs will be coupled with education and oversight by park staff in areas where abuse is reported.

The Plan for wireless services in Yellowstone embraces the following key elements and procedures for protecting the park experience while also promoting the indisputable public health and safety benefits of reliable wireless service:

• Applications for proposed wireless facilities will be submitted to the park at the conceptual design stage scoping and review under NEPA and National Historic Preservation Act (“NHPA”) and for consistency with the Plan. The final construction plans, including all mitigations, will be presented in a formal application for final review of consistency with park plans and NEPA, NHPA (Section 106), and Endangered Species Act requirements.

• Park staff will send a copy of the application for a proposed wireless facility to the managers of federal lands adjacent to the proposed site so that they can comment on potential impacts or other matters of concern.

• Park staff will comply with NPS DO-53 (Paragraph 10.3) and its implementing guidance in NPS Reference Manual 53 (RM-53), (Appendix 5, Exhibit 6). These policies direct how the NPS implements the Telecommunications Act of 1996 and subsequent directives, including requirements for notices in local newspapers and the Federal Register after NEPA and NHPA review has been completed. Copies of DO-53 and RM_53 can be found at www.nps.gov/applications/npspolicy/DOrders.cfm.

• No wireless facility or combinations thereof will be permitted to produce power densities anywhere in the park that exceed the guidelines established by the Federal Communications Commission (“FCC”) for human exposure to electromagnetic frequencies.

• Any proposed wireless facility must be constructed in a manner that meets the minimum requirements and standards of the Standard Building Code, the National Electrical Code, and the Standard Mechanical Code.

Applications to install wireless facilities in Yellowstone will only be accepted from FCC licensees. All requests for wireless communications services, whether for a cell tower, a resource monitoring site, weather monitoring site, or a site to help improve public safety, will be referred to the Telecommunications Committee. This committee will review each proposal for purpose and need, adherence to NPS DO-53, frequency coordination, and permitting by the FCC. The committee will determine if the proposal is consistent with the selected alternative of this plan, ensure that actions are incorporated into the project to minimize resource impacts, and recommend a course of action for the Superintendent, who will decide whether to approve, deny, or request further information on the proposal.

A “fair market” fee for use of park land will also be assessed by the NPS. Pursuant to the regulations in 36 CFR 14 and RM-53 guidance, the NPS is required to recover from proponents of wireless facilities the full cost of work related to processing their applications, NEPA and NHPA compliance (including subsequent environmental monitoring), and issuance and management of permits, including design review, plan checking, and construction inspection. The NPS is also required to collect a fair market value permit charge. A discussion of how the fair market value of a wireless is calculated may be found at the following link to Government Accountability Office website: http://www.gao.gov/products/A75149

While wireless services are a relatively new part of the national park experience, other utility services have long been located within national parks. Title 16, United States Code, Section 5, and other authorities allow the NPS to issue right-of-way permits for utility services. RM-53 provides detailed instructions on how to process and when to approve applications for utility right-of-way permits. For wireless facilities that require a right-of-way permit (currently cellular communications towers and associated infrastructure), the park would issue a notice in the Federal Register consistent with the requirements of NPS DO/RM-53. The public would have an opportunity to comment on the proposed tower and right-of-way permit. If the impacts of the proposed cellular tower are consistent with the Plan, and public comments do not indicate a potential for significant adverse impacts or reveal impacts that were not analyzed in the Plan, the NPS would write a memo to file as part of the project administrative record and issue a permit for wireless use.

Design Criteria and Construction Planning

Permit applications seeking permission to install wireless facilities in Yellowstone will need to demonstrate that the design, location and operation of the proposed wireless facility will be consistent with the Plan. With respect to the design of a proposed wireless facility, applications must address the following design factors:

• A detailed proposed final design and impact mitigation plan must be submitted demonstrating consistency with the Plan and applicable laws.

• A site plan and map showing the coverage expected from the proposed wireless services together with a realistic photo-simulation showing the proposed wireless facility and access routes, if applicable, after installation.

• If a proposed wireless facility is within a viewshed, recreational use area, or occupied area, and would be visible if not screened, a vegetative screening plan or other proposed “stealthing” or camouflaging options.

• Documentation of the extent to which opportunities for co-location or clustering wireless facilities have been considered, the number of additional wireless facilities that could be accommodated at the proposed site, and a discussion of any of factors that might limit co-location. Co-location is an important element of the Plan. Accordingly, all proposed wireless facilities must be designed to promote facility and site sharing by multiple users. The Plan further indicates that applicants may be required to pay for a report by an independent expert regarding the feasibility of making provisions for co-location by future proponents at the proposed site and strategies that would minimize the number, size, and adverse environmental impacts of a proposed co-located site.

• If the proposed site is within the viewshed of a listed landmark or historic property, photo-simulations depicting which elements of the proposed wireless facility (including screening) could be seen from the historic resource.

• A description of any vegetation removal including tree-trimming or removal that would be required prior to the start of construction of the proposed wireless facility.

• A description of how vegetation and any underground utility connections would be protected during construction of the proposed wireless facility (e.g., temporary fencing, non-disturbance within tree drip lines, avoidance of tree roots, removal of trash and debris, and exotic vegetation control) and a site restoration plan.

• A description of the frequency and anticipated extent of tree trimming and vegetation management that would be required during operation of the proposed wireless facility and how these activities would be conducted to prevent adverse impacts on Park operations.

• A description of the frequency and anticipated extent of operations and management needs including access to the proposed site.

• No company logos or advertising could be displayed on wireless facilities, except as required under FCC signage requirements.

Siting Criteria

Assuming the design of a proposed wireless facility complies with the Plan, the location of the proposed new wireless facility must also comply with the following siting criteria established under the Plan:

• To minimize impacts to natural habitats, the preference is to locate new wireless facilities with existing clusters of communications equipment or in developed areas if possible; otherwise, altered, fragmented, or degraded habitats would be selected over relatively intact native habitats.

• Radio repeater sites may be located in recommended wilderness areas only if they are determined to be the minimum size necessary to carry out wilderness management objectives.

• Access to wireless facility sites must be by existing roads and trails. The applicant for authority to develop a new wireless facility may be permitted to repair an unpaved road, but not to pave currently unpaved roads or trails. Additional parking to accommodate the operation of a proposed wireless facility would be considered only in extraordinary circumstances.

• To ensure that impacts are kept to a minimum, wireless facilities may not be located in a manner that adversely affects a building, district, or element eligible for listing on the National Register of Historic Places. A wireless facility for example, could not be located where it would be detectable within the viewsheds between historic properties and the natural feature or vista it was designed for, such as the viewshed of the Old Faithful Geyser and surrounding Upper Geyser Basin from the Old Faithful Inn (or vice versa), or the viewshed of Yellowstone Lake and surrounding wilderness from the Lake Hotel or the Fishing Bridge Museum. Proposals must follow The Secretary of the Interior Standards for the Treatment of Historic Properties as well as The Secretary of the Interior Standards for the Treatment of Historic Properties with Guidelines for the treatment of Cultural Landscapes.

• The effects on threatened and endangered species would be no greater than “may affect, but not likely to adversely affect.”

• Towers may not be located in or near wetlands, known bird concentration areas, or known migratory or daily movement flyways, or habitat of threatened or endangered species. Tower locations would be configured to avoid areas or landscape features that attract raptors (i.e., hawks, falcons, eagles, owls). The siting of a wireless facility must avoid adverse impacts to wetlands, rare plant populations, species of special concern, and hydrothermal features. If possible, towers should not be located in areas with a high incidence of fog, mist, and low cloud ceilings.

Public Safety Considerations

In addition to proposing an appropriate design and location, applications to construct new wireless facilities must also demonstrate that a site would pose no significant risk to public safety. To achieve this goal, a wireless facility must include: 1) fencing, barriers, or other structures or devices necessary to restrict access; 2) multi-lingual signage with warnings that the facility may result in exposure to electromagnetic energy; and 3) other practices reasonably necessary to ensure the facility is operated in compliance with FCC emission guidelines. To address fire safety concerns, telecommunications towers, antennas, and other supporting equipment must be constructed of metal or other non-flammable material. At least one-hour fire resistant interior surfaces must be used in the construction of all equipment cabinets, enclosures, or other necessary structures. Proponents must install monitored automatic fire extinguishing systems, approved by the NPS, in all structures.

Facility Height Determinations

Determining the appropriate minimum height for a proposed wireless facility is essential to protecting viewsheds, wild life (including birds and bats), and to avoid extraneous tower lighting requirements. The NPS will therefore apply the following criteria when considering the appropriate height for any proposed wireless facility:

• In order to minimize above-ground obstacles to birds in flight and visual obtrusion, wireless facilities can be no taller than necessary to accomplish their objectives; thus detailed radio signal coverage and propagation maps will likely be required to justify the height of a proposed facility.

• To avoid Federal Aviation Administration lighting requirements, no tower can exceed 199 feet in height, as measured from the natural undisturbed ground surface below the center of the base of structure to the maximum height to which the structure can be raised.

• Applications for wireless facilities taller than 20 feet above the surrounding tree height would require a detailed explanation of why a shorter installation is not feasible.

• The tops of antennas and equipment installed in building-mounted wireless facilities would not project above the top of the existing structure, excluding existing attachments such as other antennas.

Environmental Protection

Protecting viewsheds, and avoiding impacts that degrade the enjoyment of Yellowstone by visitors is of paramount importance. Equally important however, is the protection of conventional natural resources and the environment. To promote this objective, the Plan provides that an application to construct a wireless facility must demonstrate consistency with the following environmental objectives:

• The construction and operation of a wireless facility may not increase sediment loading to any creek, stream, or river. Appropriate storm water management practices would be implemented to manage run-off.

• To minimize bird perching and nesting (and future disruptions to these artificial habitats), external ladders and platforms on tubular towers would be avoided and tubular supports with pointed tops would be used when possible rather than lattice supports.

• Construction activities may be seasonally restricted to avoid disturbance of birds during periods of high activity, especially near breeding, feeding, or roosting areas. While birds are nest building or attending young in a nest on a tower, no nests will be removed or maintenance conducted. Tree-trimming or other vegetation removal would be completed before or after the bird-nesting season, which typically runs from mid-February through mid-August. Any work done during the nesting season would require additional coordination with park staff to ensure protection of nesting sites.

• The U.S. Fish and Wildlife Service personnel or other researchers will be allowed access to wireless facility sites to monitor conditions before and after construction, assess impacts to migratory birds and other wildlife, conduct dead-bird searches, and place net catchments and radar, global positioning devices, infrared, thermal imagery, and acoustical monitoring equipment to collect data on bird movements and the impacts of various tower designs and configurations.

• A habitat restoration plan for the proposed site would need to be prepared, showing that development of the site avoids or minimizes negative impacts on vulnerable wildlife while maintaining or enhancing wildlife habitat. If mitigation of construction disturbance or installation of screening requires the planting of vegetation, native vegetation of local genetic stock from the area of the park in which the facility is located must be used. A monitoring and control plan should also address how the introduction or spread of any exotic vegetation will be avoided.

• Ground-mounted wireless facilities would be secured on footings or other devices that minimize the addition of impervious areas.

Good and Bad Siting Examples

To assist the wireless community in applying the Plan, the Plan provides examples of potential wireless facility sites that are appropriate, and inappropriate. The Plan also provides a list of wireless sites that are deemed inappropriate. Applicants for wireless facility sites are encouraged to submit proposals consistent with these examples. The NPS has noted however, that the appropriateness of any site must be confirmed with park staff; a site matching one or more of these criteria could be unacceptable if it would result in a derogation of park resources. The following sites are deemed generally appropriate by the NPS:

(1) Sites using existing infrastructure or non-occupied non-historic structures including streetlight standards, utility buildings, bridges, water tanks, existing towers, smokestacks and chimneys, provided that the proposed location and structure treatment is consistent with requirements found in Yellowstone National Park Management Plans and other applicable plans and guidance, including The Secretary of the Interior’s Standards for Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring and Reconstructing Historic Buildings as set forth in Title 36 of the Code of Federal Regulations, Part 68 (36 CFR 68) and The Secretary of the Interior’s Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings (as set forth in 36 CFR 67).

(2) Non-historic buildings with low use, including non-historic additions to historic buildings, including administrative buildings, utility structures, telephone switching facilities, and non-residential structures such as warehouses, equipment buildings or areas, garages, and service stations.

(3) Vacant or partially vacant non-historic buildings outside residential areas, especially non-occupied buildings that are not scheduled for near term occupancy, reuse, or demolition.

(4) Outdoor sites that A) would not disturb natural resources or require very minimal digging in previously undisturbed areas; B) are not readily visible or accessible to park visitors, tenants, or residents; C) are located away from viewsheds, residences, cultural resources; and recreational use areas; and D) have sufficient road, electrical, and telephone connections available nearby to service the site with minimal new construction.

(5) A historic structure will be considered for a wireless facility installation only when A) no other potentially acceptable sites are available; B) the lack of other potentially acceptable sites has been documented; C) installation of proposed antennas, conduit, and related equipment is limited to non-historic (non-contributing) additions to the historic structure; and D) the proposed installation would fully comply with the regulatory requirements described in the Plan.

(6) Sites for resource monitoring equipment would be provided only in locations that would not adversely affect natural or cultural resources. Monitoring stations for research and safety would only be allowed near a natural or cultural resource if essential to a project approved by the NPS.

(7) Monitoring equipment or radio repeater sites would be allowed in a recommended wilderness area only if the reasons for the placement are consistent with the Wilderness Act of 1964, NPS Director’s Order 41 (Wilderness Preservation and Management), and the needed information could not be obtained in any area outside the recommended wilderness. Approval of such an installation would be consistent with the minimum requirement concept that determines whether the proposed action is appropriate or necessary for administration of the area as wilderness; does not pose a significant impact to wilderness resources and character; and the equipment used is the minimum needed.

Examples of inappropriate wireless facility sites have also been provided under the Plan. The following are examples of sites where the installation of a wireless facility would be expected to result in a degradation of park values or potentially endanger park resources or visitor safety. Applications should not be submitted seeking permission to install wireless facilities in the following inappropriate locations:

(1) Any residential building or within 300 feet of residential areas in the park. This does not include fire lookouts.

(2) Sites within plain view of sensitive natural or cultural areas, visitor centers, campgrounds, residential areas, trails, or park viewsheds.

(3) Sites that would require special painting or lighting by statute or regulation for the facility to operate (e.g., Federal Aviation Administration requirements).

(4) Sites where construction or operation, including use of access roads, would have an adverse effect on a federally or state-listed endangered or threatened species.

(5) Sites where construction or operation occurs within the park’s recommended wilderness,

(6) Outdoor sites on or near the top of an exposed ridge or hill, on a public trail, or within a creek/riparian corridor unless A) necessary to monitor wetlands, surface waters, or geothermal resources; or B) an existing structure or stealth technologies would be used to make the wireless facility unobtrusive to the vast majority of visitors and the wireless facility would not otherwise degrade park resources or endanger visitors or wildlife.

(7) Sites where installation, construction, or operation, including regular access, would require construction of a new road, expansion of trails, or endanger or otherwise harm sensitive natural or cultural resources.

(8) Wireless facilities that are not designed for co-location or clustering with present or future wireless installations if that would be feasible at the site. Clustering of antennas may minimize the overall height of tower, which in many cases is the preferred option.

(9) Wireless facilities whose design and installation are inconsistent with related planning documents, the Secretary of the Interior’s Standards for Rehabilitation, or other plans, guidelines, or documents protecting park resources.

(10) Wireless facilities that are at a significant distance from electrical or telephone connections or existing roads for service access, such that construction to extend utility connections or access would result in a significant impact to park resources.

(11) No wireless facility that would cause unavoidable interference with park communications and emergency systems or other existing or proposed wireless facilities in Yellowstone.

Conclusion

National parks (and parks in general) have always been difficult venues for the development of wireless facilities. However, the adoption of the new Wireless Communications Services Plan for Yellowstone National Park, signals a truce of sorts that recognizes the important public safety benefits of reliable wireless coverage and the ability of wireless facilities to operate without any significant adverse impact on the environment. The Yellowstone Wireless Services Plan provides a useful model that planners at all levels of government can look to for guidance when assessing options for allowing wireless facilities to provide coverage in sensitive locations (such as parks, playgrounds, schools, museums, etc.) that have long been considered off limits to wireless technology.

For a variety of reasons, religious facilities often face vigorous opposition when seeking building permits, variances, and site plan approvals during the land use and zoning process. Congress recognized the widespread nature of this problem and enacted RLUIPA. RLUIPA supplements the protections for religious freedom enshrined in the United States Constitution as set forth in the Free Exercise clause of the First Amendment and the Equal Protection clause of the Fourteenth Amendment. Together, the Constitution and RLUIPA provide a powerful resource for religious institutions that need building permits and other local approvals to construct, expand, or maintain religious facilities. Houses of worship, private educational institutions, and even funeral homes have all been deemed to constitute forms of religious exercise for the purposes of RLUIPA. In addition, the successful plaintiff in a RLUIPA case is entitled to collect attorneys’ fees from its adversary.

RLUIPA has four main provisions: (i) the Substantial Burden provision; (ii) the Nondiscrimination provision; (iii) the Equal Term” provision; and (iv) the Exclusion and Limits provision. The Substantial Burden provision says that a local zoning regulation cannot substantially burden religious exercise unless the burden is the least restrictive means of furthering a compelling governmental interest. The Nondiscrimination provision forbids discrimination “on the basis of religion or religious denomination.” The Equal Terms clause bans “treat[ing] a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” The final Exclusion and Limits provision prohibits municipalities from “totally exclud[ing] religious assemblies from a jurisdiction.”

Firm Experience
The law firm of Snyder & Snyder, LLP, has significant experience securing zoning and land use approvals for religious institutions. Our firm takes a hands-on approach to these matters and prefers to work with clients and their consultants early in the planning process, so a proposed religious facility is designed in accordance with the local zoning law to the maximum practical extent. Early planning in the zoning process may eliminate the need for additional approvals, such as zoning variances. If the need for discretionary approvals such as variances can be avoided, the number of public hearings will be reduced.

To succeed in the zoning process it is essential that the applicant develop a bulletproof record in support of the project. All documents submitted for a project should be carefully structured and reviewed by counsel. All expert witnesses should be thoroughly prepared. Official meetings with local officials should be carefully documented; and when a project faces entrenched opposition, the applicant should be sure its stenographer is present at all public hearings.

Snyder & Snyder, LLP, recently represented a religious institution in its successful effort to expand a house of worship in an affluent New York suburb. Community opposition to the project was intense. However, with our meticulous preparation, relentless follow-up, willingness to compromise, and subtle references to the protections provided by RLUIPA, our client was able to secure the necessary zoning and land use approvals.

For additional information on the zoning counsel Snyder & Snyder, LLP provides for religious institutions and facilities, please contact our managing partner, David L. Snyder, at 914-333-0700 or at dsnyder@snyderlaw.net. Thank you for your interest.

To avoid an uncomfortable descent into regulatory uncertainty, we needed to knock out the stop work order. With this end in mind, we carefully analyzed the town building and zoning code. We concluded there was no legal basis for the stop work order since the wind turbine was not by definition a building under the local statutes ( it did not have a roof!) and was thus not subject to regulation under the local building and zoning code. Ultimately this argument prevailed.

The town backed down and the wind turbine was permitted to go into operation without going through zoning. The lesson here is that before a wind energy or other renewable energy project is casually subjected to the rigors of local zoning, a careful review of the local land use statutes should be undertaken, as there may be exemptions or technicalities that can reduce or eliminate zoning requirements and thus accelerate the construction timetable.

A statewide franchise may be particularly attractive where an energy project (for example, distributed solar panels or small wind turbines) or a wireless communications project (for example, micro-antennas on streetlights or telephone poles) requires numerous small nodes in multiple municipal jurisdictions. In such instances, multiple local franchises may be required to use the public ROW. Local franchises typically allow the franchisee to install physical plant in, on, over, or under the public ROW; but these local franchises can be time-consuming and costly to secure. Alternatively, a statewide franchise typically authorizes a utility to install its physical plant anywhere within the public ROW without securing any local permits or approvals. Operating as a public utility with a statewide franchise can therefore provide a powerful siting tool, particularly where doing so avoids the need to secure multiple local franchises.

Yet even if it is not practical to locate all or some part of an energy, environmental, or telecommunications project in the public ROW, it may still make sense to proceed as a utility. Utilities are typically accorded a deferential status in zoning—even when the utility seeks a land use approval for a facility located on private property. Moreover, some states grant utilities the power of eminent domain. In addition, under federal law a utility enjoys a special right of access to existing utility poles, towers, and conduits, under the federal Pole Attachment Act. By accessing these existing facilities, particularly when they are located in a ROW, an energy, environmental, or telecommunications project operating with public utility status can potentially accelerate deployment of its infrastructure.

Proceeding as a utility is not a panacea; utilities may be subject to regulatory oversight and the payment of additional taxes and fees depending on the state. Utility corporations also operate in an environment where everything from customer contracts to the sale of bonds and securities can be subject to tariff proceedings and oversight by state agencies.

Nevertheless, if a solar, wind, fiber optic, cable TV, or wireless project is incorporated as a utility, secures a statewide franchise, and finds the state ROW suitable for a build-out, local zoning can be abbreviated or potentially avoided. Given the many potential siting benefits, projects that are eligible should weigh the benefits and burdens of proceeding as a public utility.

Regardless of why a project goes to court, success will largely depend on how well the record in support of the project has been developed. The record starts with carefully prepared project applications. Measurements, descriptions, layouts, drawings, visual impact analyses, and emissions data must be clear and consistent across all project documents. We also recommend that a project sponsor use a particularly effective technique known as pre-filed direct testimony to build a compelling public hearing record.

Pre-filed direct testimony is commonly used when an expert, agency head, or individual is called to testify before a congressional committee. A carefully worded statement is filed by the witness, who then orally summarizes the testimony. In the context of permit approval hearings, the benefit of pre-filed testimony is that it becomes part of the official administrative record and represents the project with a precise, thoughtful, carefully crafted message. All witnesses testifying at a hearing in support of a project should use pre-filed direct testimony to establish their position and build a compelling record.

Another important element in building a strong record is bringing a stenographer to all public hearings, particularly when opposition is anticipated. It is not unusual for government agencies to rely on cassette tapes or even handwritten notes as the official record of a proceeding. This type of official record is often difficult to duplicate and distribute and can easily be lost, damaged, or misplaced. A project sponsor that brings a stenographer to a hearing sends the message that it is serious about building and preserving a record and that it is committed to ultimately securing its approvals.

The record also benefits when an effort is made to compile and organize on a continuous basis all project correspondence, e-mails, and meeting notes. These documents are often essential to prevailing in a trial or with a dispositive motion.

By taking the time to prepare a complete application, by using pre-filed direct testimony, by building a stenographic record, and by scrupulously indexing all documents related to the review process, a project sponsor will build a record that supports the best possible outcome should litigation be required to secure project approvals.

When our firm was retained to assist in securing approvals for this pipeline project, we asked the sponsor for any letters from potential customers who were unhappy with current oil heating options and who might want natural gas service. The engineers we were working with did not know if such letters existed. This was not surprising since in large companies the construction division does not regularly exchange information with the customer care division. The customer care division may have information vital to supporting construction of a proposed energy or telecommunications project. Customer complaints about spotty wireless coverage or letters from consumers to their local utility to request renewable energy options can provide the nucleus for grassroots project support.

That was the case with our pipeline project. The engineers responsible for securing approvals and constructing the pipeline extension had not consulted with the customer care division as part of their application groundwork. We saw this as an oversight and asked to speak with the customer care personnel. To our delight, the customer care department located a letter signed by residents at a nearby nursing home asking for natural gas service.

On the first night of the pipeline hearing, after the opposition had finished its presentation, a caravan of senior citizens arrived to testify in favor of the pipeline extension. Our client had invited these seniors to attend the hearing after finding their letter in the customer care files. The outreach effort worked. At the end of the first night of hearings, the board unanimously approved the pipeline extension.

Another option for generating grassroots project support is the public referendum. A referendum is sometimes useful in a community where a vocal minority is opposing a project but where a silent majority supports the project. In such cases it may be possible to call the question. That is, if the right conditions are met, and enough signatures are filed with a local government, a public referendum may be scheduled to determine what the public really wants. Recently, we used the referendum technique to secure public approval for a cellular radio tower that people were reluctant to support publicly.

We petitioned for a referendum and then retained an experienced political consultant to shape a compelling campaign. A referendum was scheduled. A vote was taken, and the cell tower was approved by a wide margin. With the referendum won, the tower proceeded through the approval process without opposition.

By drilling down through customer service records and by reaching out to affected constituencies, project sponsors may be able to gain just enough support to secure project approval. The lesson here: the investment made in mining all potential sources of public support may pay significant dividends.

Agencies at the federal, state, and local level may have different lens, distance, and aperture requirements for the baseline photographs used to support computer-generated renderings used in visual impact analysis. You will save time and money if the initial renderings in the visual analysis are designed to be acceptable across the board. This efficient approach avoids false starts, needless delays, and the whipsaw effect that can result when applicants scurry to meet review requirements after the fact. The same multipurpose approach will benefit other project studies, including those that examine impacts on air, water, or other resources.

Coordination among agencies will be particularly important if the project triggers the preparation of an environmental impact statement (EIS). The National Environmental Policy Act (NEPA) establishes the elements required for a federal EIS. Most states have also enacted their own environmental review statutes, with requirements that may differ from or go beyond NEPA. When a project is subject to both federal and state environmental review, generating compliance documents that satisfy the “hard look” requirements of both federal and state agencies saves time and money.

As the complexity and number of agencies involved in the permit process increase, permit coordination and a holistic approach to project documentation become ever more critical to keeping the permitting process on schedule.

More than twenty years ago, Snyder & Snyder founding partner David L. Snyder was tasked with securing the federal and state environmental permits for a large regional waste-to-energy plant. Construction of the plant required preparation of an EIS for both federal and state agencies. At the outset, a decision was made to prepare a single EIS that met both federal and state requirements. This coordinated approach helped the project move efficiently through the environmental review process. The same approach makes sense today.

The point to be stressed is that minor changes in project design can dramatically shorten the regulatory timeline and even the number or complexity of the federal, state, and local approvals that a project must secure.

Recently, Snyder & Snyder helped secure approvals for a large electric substation based on thoughtful (and relatively inexpensive) project design changes. Opposition to the substation was substantial. However, we helped our client craft a design compromise that mitigated the visual impact of the substation and addressed concerns over potential noise and vibrations. Using landscaping, slotted fences, down-tilted lighting, and other measures, the developer gave the substation a stealth appearance, which made it far less of a concern to the community. Similar approaches have been used in response to community opposition against cell towers, public safety radio facilities, and waste-to-energy facilities.

Design flexibility in all stages of the permit review process can have many benefits, including improved chances for approval, a shortened review period, enhanced project credibility, and diminished public opposition.