October 22, 2001

BY FEDERAL EXPRESS

Honorable Jane Garvey

Administrator

Federal Aviation Administration

800 Independence Avenue, S.W.

Washington, D.C. 20591

Re: Airspace Determination: Proposed Civil Aviation Reuse of

Marine Corps Air Station El Toro, Orange County, California

Dear Mrs. Garvey:

As you know, Orange County is in the process of determining whether to approve an Airport System Master Plan for the proposed civilian aviation reuse of the former El Toro Marine Corps Air Station. Within the last few days, the Federal Aviation Administration released its "Airspace Determination" regarding that proposed reuse.

This Airspace Determination raises extremely significant issues relating to potential federal funding for the County’s proposed reuse, and whether that reuse can legally be approved now, without changes to the current proposal, by the federal government. For example, the Determination’s airspace findings appear to preclude federal grants or assistance of any kind for the County for airport planning or development. If this is true, it will significantly alter the County’s economic analysis relating to the airport, and it may well have significant adverse repercussions for the County’s taxpayers and for the County’s continued reliance on John Wayne Airport operational funds for El Toro planning and promotion.

The Airspace Determination also appears to mean that the FAA is legally barred from both approving an airport at El Toro, and recommending a transfer of the closed base to the County for aviation reuse.

These are significant questions that should be answered before the County takes any further action to approve an airport. I therefore am writing to provide my interpretation of the Airspace Determination and my conclusions regarding its legal impact, and to ask for an official FAA response whether my views are correct or incorrect.

A significant portion of the FAA’s analysis "consists of determining if the proposed reuse plan will result in the safe and efficient use of navigable airspace." Page 14. Accordingly, the analysis evaluated the "potential impact on air traffic of the proposed airport . . . as a public use airport." Page 14. The analysis explicitly concluded, "overall system efficiency in Southern California will be affected." Page 15.

In particular, the analysis reports the following conclusions:

• "The preliminary missed approach procedure for Runway 35 . . . may conflict with John Wayne Airport Runway 19 arrival traffic." Page 16.

• "A method to mitigate this problem includes the use of visual approaches . . . and flow restrictions" at both John Wayne and El Toro. "Overall capacity would be negatively impacted at both airports . . . ." Page 16.

• The proposed departures on Runway 35 "will also interact with Runway 19 arrivals at John Wayne Airport." This will result in additional delays at both airports, and the "FAA considers this a highly inefficient method of managing air traffic operations at both airports." Page 16.

• The County’s proposed operations may result in "extensive delays to aircraft on the ground at MCAS El Toro while waiting for a lull in the arrival flow to John Wayne Airport." Page 16.

• Departures on Runway 35 would impact not only John Wayne efficiency, but "also may conflict with arrivals into Los Angeles International Airport, Long Beach Airport, and IFR traffic on Victor 8 (V8) and Victor 21 (V21) Airways." Page 16.

• "Additionally, potential conflicts with a heavily transited VFR flyway north of the airport has been highly controversial with the Air Line Pilots Association." Page 16.

• If the weather is IFR, then the use of Runway 35 would "cause delays to arrivals into John Wayne Airport and would, in essence, reduce the arrival rate at both John Wayne Airport and the former MCAS El Toro." Page 17.

• Delays for "north departures using Runway 35 at the reused MCAS El Toro were calculated to be between 8 and 60 minutes. This delay range is created by the varying numbers of aircraft in the southerly arrival flow into both John Wayne Airport and Long Beach Airport." Page 17.

• "In summary, regarding the proposed runway usage at former MCAS El Toro, the FAA has concluded that aircraft operations can be operated safely, however would not be the most efficient use of navigable airspace within the National Airspace System." Page 17.

• The FAA has determined "that the LRA’s proposal is not the most efficient use of navigable airspace, as may be possible." The analysis "memorializes FAA’s determination with respect to the safe and efficient use of navigable airspace by aircraft." Page 18.

• The FAA will take "appropriate steps to ensure that any approach and departure procedures developed for the proposed reuse of MCAS El Toro are safe for the flying public and do not unnecessarily degrade the efficiency of the National Airspace System." Page 18.

• All of these conclusions in the Airspace Determination were based only on an analysis of operations of the proposed El Toro airport at a level of 4 MAP, and, as the Mitre Report included in the Determination explains, with regard to 156 flights per day. Additional materials released by the FAA on October 13, 2001 to Congressman Christopher Cox demonstrate that at full planned operations the inefficiencies would be exponentially greater.

Federal law and the applicable FAA Order appear to compel significant consequences as a result of these conclusions in the Airspace Determination.

First, 49 U.S.C. Section 47118(c) specifies that the Secretary of Transportation may make federal financial grants for the civilian aviation reuse of former military airports, only if the proposed airport would "enhance airport and air traffic control system capacity in major metropolitan areas or reduce current and projected flight delays." The conclusions quoted above from the Airspace Determination appear, given this statutory language, to clearly prevent the Secretary from making any further financial grants or providing financial assistance of any sort to the County for purposes of planning or development of El Toro.

If so, the County should be fully aware that no further federal funding will be available for the proposed airport, and that all funding will then have to come from County or other sources.

Second, 14 C.F.R. Section 157.7(b) specifies that an Airspace Determination "will be one of the following": "no objection," "conditional," or "objectionable." The conclusions quoted above appear to indicate that the Determination is "objectionable"(or, at a minimum, "conditional") and that the County must therefore alter its proposed plan of operations in order to preclude an objectionable determination.

If the County must change its proposed plan of operations, the changes may have significant environmental, cost and political consequences, and the County should be fully aware of them before proceeding further with any airport efforts.

Third, FAA Order 5150.2A specifies the FAA’s obligations under federal law with respect to the disposition of surplus federal property. This order specifies that any FAA recommendation regarding the disposal of surplus property for airport purposes must be based on "a current airport layout plan that has been officially approved by the FAA." Further, it specifies that a "favorable airspace determination is required to obtain FAA endorsement." Thus, if the Determination is either "objectionable" or "conditional" then the FAA is barred by federal law from approving or recommending the disposal of El Toro to the County for civilian airport uses.

If this is the result of the Airspace Determination, then that fact has enormous consequences for the County, and the County should understand and evaluate those consequences before spending an additional penny on its airport efforts.

Finally, the Airspace Determination strongly suggests—if not explicitly states—that the use of Runway 25 for departures is necessary to obtain FAA approval of the proposed airport, since such departures would "be consistent with surrounding airport traffic flows in the Southern California basin." Regional Administrator William Withycombe, in comments reported in the Orange County Register (October 10, 2001, at page B-1), apparently confirmed that conclusion by his statements that "[t]he basic problem that air traffic [planners] have with El Toro is that it flows in the opposite direction to the flows with neighboring airports." As he stated, "It’s kind of like a freeway—if all of the cars are flowing in the same direction, it flows" but that "[i]f a wrong-way driver gets on , there’s disruption." This issue is especially important given the repeated comments by the nation’s pilots that Runway 25 is the safest runway for departures under many conditions, and given the explicit recognition in the Airspace Determination that pilots always retain the ultimate authority to reject a noise-preferred runway on safety grounds.

If this is the necessary consequence of the Airspace Determination, then the County must address that issue before proceeding any further.

You should be aware that the County’s response in a lengthy memorandum dated October 15, 2001 (Attachment A), was to suggest that Congressman Cox fabricated these additional materials, and to argue that the FAA’s conclusions with regard to airspace use were unreliable, based on "crude methodology," and were "materially inaccurate." The County further argued in that memorandum that the County is entitled to ignore the FAA’s conclusions with regard to airspace issues and that it alone is entitled "to make the final call on how the airport will be operated." Indeed, the County’s memorandum even suggests that the FAA’s airspace conclusions rely on the fact that "some FAA airspace personnel . . . may find a different way of operating El Toro to be more convenient for them," rather than posing any serious concerns about the proposed airport.

I find this bantering between the County and the FAA unacceptable and unprofessional. This behavior simply continues to undermine our confidence in both entities.

I would also like to inform you that on May 2, 2000 the Board of Supervisors requested an internal audit of the expenditure of 14M Funds. These funds, which come from John Wayne Airport revenues and possible FAA grants, are being questioned to determine if FAA grant money has been utilized to pay for the planning and implementation of the re-use of the former MCAS at El Toro. On October 19, 2001, the County’s Internal Auditor informed my office that the study has been under review by County Counsel, due to the fact that there are items that need legal interpretation.

I would also like to inform you that on March 8, 2001, Supervisor Wilson and I questioned the unilateral transfer of $5,000,000 in Orange County John Wayne Airport revenue along with concurrent delegation of Board statutory and regulatory duties to a separate public entity, the Orange County Regional Airport Authority (OCRAA). In a letter from FAA Acting Associate Administrator Woodie Woodward (Attachment B), date stamped April 6, 2001, it states, "Mr. David Bennett, FAA’s Office of Airport Safety and Standards is currently reviewing the information you provided and will provide a full response to you directly. You should be hearing from Mr. Bennett within 60 days."

To date, neither one of the above requests have been completed. This lack of due diligence, again, suggests incompetence and deliberate foot-dragging.

The answers to the many questions proposed in this document have enormous financial and credibility implications for the FAA and the County in the decision whether to continue spending on or approving the proposed Airport System Master Plan.

I therefore request that you immediately clarify these issues. Without this clarification, the County may be proceeding on a dead-end path while spending enormous amounts of public money unnecessarily and in an effort that will ultimately prove futile.

Thank you very much for your consideration of these important issues.

With warmest regards,

TODD SPITZER

Supervisor, Third District

cc: Norman Mineta, Secretary of Transportation

Senator Barbara Boxer

Senator Dianne Feinstein

Congressman Ken Calvert

Congressman Christopher Cox

Congressman Darrell Issa

Congressman Gary Miller

Supervisor Cynthia Coad

Supervisor Jim Silva

Supervisor Chuck Smith

Supervisor Tom Wilson

Attachment B, Letter from Woodie Woodward, date stamped April 6, 2001.