When hospitals — in conjunction with the Helicopter Air Ambulance (HAA) providers that provide their transport services — strive to create a safe and effective infrastructure to meet their patients’ needs, a significant amount of time, effort and money is invested. This is generally true of any heliport. However, what many people do not fully comprehend is that when it comes to private heliports, protecting the surrounding airspace of these assets is the full responsibility of the heliport owner and not a government agency.
While the U.S. government has exclusive sovereignty over U.S. airspace, and the FAA has jurisdiction and oversite for all that airspace, it does not have any legal authority or responsibility in protecting the airspace in support of private heliports. Its role is purely one of recommendation as well as issue and conflict identification and resolution as it relates to public-use airspace. While the FAA will conduct an airspace evaluation for a private heliport, it will only act when specifically requested to do so. It is left up to the owner of the heliport to protect the airspace. The only exception for private facilities is when FAA federal grant monies, through the Airport Improvement Program (AIP), have been used in building a heliport. However, even in these cases the FAA or proponent must secure the air rights over others’ properties to prevent or limit obstacles or operations that may negatively impact the airspace required for safe access to that facility.
Protection of private-use heliport airspace, particularly at hospitals, has been an ongoing yet rarely addressed issue for some time. Over the past 30-plus years, hospital and helicopter air ambulance communities have had a somewhat head-in-the sand approach when it comes to working with the FAA and private-use heliports.
While hospitals and helicopter air ambulance providers must have heliports to conduct business, and patient transport is generally a for-profit commercial operation for the public, there has been an underlying reluctance in working with the FAA. For one, it costs money to do things right and, with budgets being what they are, heliports are oftentimes relegated to being an afterthought rather than a forethought. Also, many hospitals and private heliport owners feel that if they seek the FAA’s help, they run the risk of allowing the FAA to have direct oversight. This presents the potential of closing their heliport if they do not meet every current published criterion. The fact is that closing a private, Prior Permission Required (PPR) heliport is not something a FAA Flight Standards Service (AFS) inspector is authorized to do. Due to years of avoidance, heliport owners and helicopter air ambulance providers are now finding themselves fighting to protect their heliports and supporting airspace from incursion by power lines, antennas, cell towers, buildings and now unmanned aircraft system (UAS) operations.
Numerous private heliports across the country in operation right now, both new and old, have never had a FAA airspace study conducted. Hence these heliports do not have a FAA Airport Master Record (FAA Form-5010) on file with the federal government. Subsequently, none of these heliports are listed in any of the databases for which this information is depended upon.
These databases include those used by online flight planning websites, such as AirNav, SkyVector, FlightAware, AOPA and even the new HEMS WX Tool. Other critical systems that also draw their information directly from this database are the onboard aircraft GPS navigation systems as well as numerous smartphone and tablet apps such as ForeFlight. But the newest and probably most significant tool now using this information is the FAA’s new B4UFLY app.
This newly introduced B4UFLY is intended to help specifically UAS operators know where airspace is located and how best to avoid it. This app pulls its information from the FAA Airport Master Record database. So, in using it, UAS operators may believe to be clear of certain types of airspace when in fact they are not. In turn, this can then pose a significant safety risk to helicopters, their crew, hospitals and the general public.
There are three components that define the required airspace needed to safely support a heliport. They include primary, approach and transitional surfaces.
FAA advisory circular AC 150/5390-2C, “Heliport Design Guide,” further breaks down the primary surface into three specific components for operational and obstruction evaluation purposes.
Touchdown and Liftoff (TLOF) is a load-bearing, generally paved area, normally centered in the Final Approach and Takeoff (FATO), on which the helicopter lands and/or takes off.
FATO is a defined area over which the pilot completes the final phase of the approach to a hover or a landing and from which the pilot initiates takeoff. The FATO elevation is the lowest elevation of the edge of the TLOF.
Safety area is defined on a heliport surrounding the FATO intended to reduce the risk of damage to helicopters accidentally diverging from the FATO.
The FAA’s Role
In the U.S., a land owner’s property rights theoretically extend to the center of the earth, however, the ownership of the air above the surface does not extend endlessly into space. A land owner owns as much of the air above the surface as he or she can reasonably use in connection with the surface. The key limitation is what is being defined as navigable airspace. By definition, navigable airspace belongs to the public and is open to air travel. The U.S. government, with the FAA as the designated agency, oversees all airspace not occupied by a structure. It is the FAA that sets criteria for defining and allowing obstructions within airspace for the general public.
The FAA requires notice for all structures greater than 200 ft agl as well as other lower structures close to public or military facilities. However, the FAA does not require notice for structures below 200 ft in the vicinity of private airports and heliports with the exception of those facilities having an instrument procedure associated with them. A FAA determination related to obstacles located on private property is advisory only. Hence, compliance by the FAA is not required in the cases of private facilities.
Some believe that since they have an instrument procedure associated with their heliport that their airspace is automatically protected. What most people do not realize is that an instrument procedure only provides for notification, not protection. In those cases in which the FAA has been notified of a potential airspace conflict due to the construction of some new structure, the FAA will evaluate the instrument procedure and determine if a conflict exists. If it is determined that a conflict exists, the FAA will not and cannot stop construction of a structure, rather it will increase the minimum requirement of the procedure to negate any airspace conflict. In this case, a viable and high-cost instrument procedure will more than likely no longer be capable of providing for the lower approach minimums that it was originally designed for or capable of achieving.
If the obstacle is a radio tower or other transmitter platform, an Federal Communications Commission (FCC) license is required. The FCC requires applicants follow FAA guidelines and have a “no objection” determination from the FAA. If the structure is allowed by the local zoning and building code authorities, to include variances, the FAA cannot and will not prevent construction.
Many local land-use authorities require an FAA determination to be sought and complied with for issuing zoning and building permits. It is therefore the local authority that is the enforcer in these instances and not the FAA, but only to the extent provided for by local laws and local land-use zoning criteria. The local land-use authority can, by ordinance or other land-use mechanism, restrict development on private property to the extent necessary to assure that a facilities airspace is not intruded.
This concludes part one of the overview on legal protections for airspace surrounding private heliports. Part two will examine what can be done to protect such airspace, including determining whether your heliport is recognized by the FAA, doing an FAA airspace study and brushing up on state regulations. R&WI