FCC Raises Questions About Wetland Tower Regulations
In a potentially troubling development for wireless carriers, the FCC Fri. asked for formal comment on a petition for declaratory ruling asking the Commission to further streamline its rules on tower siting, in this case for towers that have already received wetlands clearance from the Army Corps of Engineers.
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The development follows on the heels of the completion of the National Programmatic Agreement (NPA), which streamlines procedures regarding wireless towers and historic preservation rules. NTIA, in its federal rights of way report, and the Council on Environmental Quality have recommended that federal agencies streamline application procedures.
The problem, carrier sources said Fri., is that it isn’t clear that the FCC is addressing a specific problem. One carrier source said that in general companies run through a National Environmental Policy Act (NEPA) checklist when applying for a tower permit, and presence in wetlands is one of the issues. The FCC may be trying to address cases where wetlands considerations are the only significant environmental issue raised.
“Maybe they're looking to be helpful and make it clearer,” the carrier source said. “What this has the potential to do is create an issue when there isn’t one.”
CTIA Gen. Counsel Michael Altschul told us carriers were reviewing the FCC’s latest action on tower siting. “This can provide an opportunity to streamline as much as it presents a threat to carriers,” he said. Altschul noted that carriers are building fewer new towers these days and instead have concentrated on collocating facilities, which minimizes environmental and other concerns.
The Wireless Bureau asked for comments on a petition for declaratory ruling by Stokes Environmental Services, which raised the wetlands construction issue. “In its petition, Stokes indicates that when an applicant proposes a facility to be located in a wetland, an applicant first obtains a permit from the U.S. Army Corps of Engineers to construct the tower in a wetlands area,” the FCC said. “Stokes asserts that because the Corps conducts a NEPA review of the proposed facility when the Corps approves the wetland permit, filing an [environmental assessment] with the Commission is duplicative.”
Stokes asked in a May letter for an FCC review. “The existence of a Corps-approved permit indicates that the agency with expertise in wetlands has completed its analysis and found the wetland effects are compliant with NEPA and with the Clean Water Act, based on the minimal extent of impacts and/or mitigation to compensate such impacts,” the firm said. “As such, it would appear reasonable to conclude that the project does not involve a significant change in surface features.”
Lauren Patrich, spokeswoman for the Wireless Bureau, said the FCC put out the notice in reaction to the Stokes letter. “This issue has been raised to us and we'd like to know many other people think this is an issue,” Patrich said.
The FCC said it requests comments on Section 1.1307(a)(7) of FCC procedures governing tower construction and Corps’ rules, practices and procedures. In particular, the FCC said it was concerned how construction under a nationwide wetlands permit by the Corps is properly treated under the FCC rules.