FirstNet Defends Revised NEPA Procedures

The First Responder Network Authority (FirstNet) today defended its final revised procedures for implementing the National Environmental Policy Act (NEPA) in response to criticism from the Interior Department. The procedures, which took effect today, modify previously established categorical exclusions (CEs) and extraordinary circumstances. FirstNet released its original NEPA implementation procedures in 2014 (TR Daily, April 29, 2014). Last year, it sought comment on proposed revisions to its procedures (TR Daily, June 23, 2017).

“As it has continued to mature as an organization, FirstNet, as mentioned above, has identified the need to modify its NEPA implementing procedures, CEs, and related extraordinary procedures to better align with FirstNet’s statutory mission and activities related to the deployment of the NPSBN, as well as better assist FirstNet in complying with NEPA and FCC regulations,” FirstNet said in last year’s notice. “More specifically, FirstNet, as both an independent federal authority and a licensee of the FCC, must satisfy its own NEPA requirements as well as comply with FCC-promulgated NEPA procedures. Under CEQ [Council on Environmental Quality] regulations, federal agencies with overlapping NEPA requirements related to the same project are encouraged to streamline their NEPA implementing procedures to avoid duplicative NEPA review. Accordingly, FirstNet is proposing to modify its NEPA procedures and CEs to better align with FCC procedures in order to avoid duplicative NEPA reviews that would otherwise likely result in unnecessary costs to and delays in the deployment of the NPSBN.

“Generally, FirstNet’s proposed revisions include: (1) Updates to the process for determining and documenting categorically excluded activities; (2) the addition of criteria that may trigger the need for the development of an EA; (3) modifications necessary to account for FirstNet’s changes in organizational structure and internal policies and procedures; (4) modifications to the definition and role of an Applicant in the environmental review process; and (5) the establishment of two new CEs and updates to its extraordinary circumstances,” FirstNet added.

One CE relies on the FCC’s CE for network deployment activities, while the other new CE “will account for the use of cells on wheels, systems on wheels, and similar network equipment,” FirstNet said.

In a notice (Docket number 131219999-7305-03) published today in the “Federal Register,” FirstNet noted that Interior submitted concerns about the proposed NEPA procedure revisions.

For example, FirstNet noted that Interior “requested that FirstNet’s procedures include a process for ensuring compliance with the Bald and Golden Eagle Protection Act (‘BGEPA’), Migratory Bird Treaty Act (‘MBTA’), and Executive Order (E.O.) 13186, Responsibilities of Federal Agencies to Protect Migratory Birds.”

FirstNet said that “its revised NEPA implementing procedures sufficiently consider environmental resources, as well as support compliance with environmental statutes and regulations that are applicable to the deployment of the NPSBN, including those related to migratory birds. In particular, FirstNet’s revised NEPA implementing procedures include, among other statutory and regulatory references, specific language identifying the BGEPA, and MBTA as well as E.O. 13186, Responsibilities of Federal Agencies to Protect Migratory Birds as areas, that should be considered, as appropriate, as part of a NEPA review.”

FirstNet also said it disagreed with Interior’s suggestion that FirstNet has more authority for siting towers than the FCC and that its “NEPA implementing procedures should be explicitly more protective of migratory birds” than those of the Commission.

“First, in regard to the siting of communication towers, the DOI appears to be confused about the statutory roles of both FirstNet and the FCC and the nature of the relationship between the Agencies,” FirstNet said. “The FCC, not FirstNet, is the federal agency primarily responsible for implementing and enforcing the nation’s communications law and regulations, including the management and licensing of the electromagnetic spectrum for commercial use. As part of its responsibilities, the FCC requires its licensees and registrants conducting tower or antenna siting activities (e.g., building a new tower or collocating on an existing structure) to comply with FCC rules for environmental review.

“These rules ensure that licensees and registrants take appropriate measures to protect environmental and historic resources, support FCC compliance with its obligations under NEPA and other applicable environmental laws and regulations, and consider the potential environmental impact of their actions,” FirstNet added. “FirstNet, as a point of fact, is a licensee of the FCC and is subject to FCC environmental rules, including those related to tower and antenna siting. FirstNet’s authority is, therefore, limited to its express statutory mission to ensure the establishment of the NPSBN which is not greater than, but, rather, subject to, applicable FCC rules and regulations, including those environmental rules applicable to tower and antenna siting. Accordingly, the DOI’s comments that FirstNet has a greater degree of authority for siting communications towers than the FCC [are] incorrect.”

FirstNet added that “additional environmental requirements above and beyond those legally required of all FCC licensees would likely disadvantage FirstNet in its efforts to provide timely and competitively priced services to public safety entities due to the addition of unnecessary costs and subsequent delays in network deployment stemming from these requirements. As a result, FirstNet’s ability to meet it statutory mandate and establish and ensure the on-going viability of an interoperable, nationwide broadband network for public safety would be put at significant risk.”

FirstNet also defended its use of the term “wildlife preserve.”

As for Interior’s question about why FirstNet proposed to modify the “environmentally sensitive” resource extraordinary circumstance, FirstNet said that “as the FCC has well established and applied environmental rules for complying with NEPA, specifically applicable to tower construction and siting, FirstNet, among other modifications, removed its previously established categorical exclusion referencing ‘environmentally sensitive’ resources and replaced it with multiple other extraordinary circumstances, which, as discussed above, FirstNet considers both sufficient to account for resources previously identified as ‘environmentally sensitive,’ while ensuring a consistent and streamlined NEPA review process as contemplated by CEQ regulations and guidance.”

FirstNet also noted that Interior “expressed concerns that all towers lower than 450 feet may be pre-determined as CE eligible and recommended FirstNet prepare an environmental assessment for all new installations that are above 199 feet above ground level (AGL), not co-located with existing facilities or are guyed.” It also noted that Interior recommended that FirstNet follow U.S. Fish and Wildlife Service best practices for designing and siting communications towers to minimize the impact on migratory birds.

FirstNet said it “disagrees with the recommendation that new installations that are above 199 feet AGL, not collocated with existing facilities, or are guyed require: (1) An environmental assessment and (2) adherence to the FWS Recommended Best Practices for Communications Tower Design, Siting, Construction, Operation and Decommissioning.

“First, as a point of clarity and contrary to DOI’s concern, FirstNet will not predetermine any proposed action, including towers lower than 450, are eligible for a CE as such a determination would be inconsistent with NEPA or CEQ regulations,” FirstNet added.

“Second, FirstNet asserts that compliance with its revised NEPA implementing procedures will provide sufficient information for FirstNet to review and make a determination as to the appropriate level of NEPA review for any site-specific action, including new installations that are above 199 feet AGL, not co-located with existing facilities or are guyed,” FirstNet added.

“Finally, FirstNet recognizes, as noted by the DOI, that the FWS has formulated best practices for tower siting to address the potential effects of tower and antenna structures on migratory birds,” the notice said. “FirstNet has taken steps that will align the deployment of the NPSBN with these best practices, particularly by adopting a strategy that will facilitate tower co-locations. … Thus, FirstNet, in accordance with the DOI voluntary guidelines, has already undertaken efforts to reduce the potential impacts of NPSBN deployment on migratory birds through the design of its program. Nevertheless, FirstNet, consistent with the FCC’s recommendation to its licensees, will consider implementing these voluntary guidelines, as practicable and feasible, in the deployment of the NPSBN, but will not make them a mandatory requirement of NPSBN deployment.” —Paul Kirby,

Courtesy TRDaily