NEPA

Traffic Impacts – Finding of Insignificance. The plaintiffs argued that the traffic studies were inconclusive as to the severity of the impact that the project would have on traffic patterns, because FHWA had relied on “engineering judgment” and had not performed an origin-destination study. FHWA responded that an O&D study would have been a “viable” way to evaluate traffic impacts, but the costs of doing so would have been “staggering.” The court accepted FHWA’s position. It held that “the feasibility of conducting an ‘O & D’ prior to construction is not dispositive …. Plaintiffs have failed to cite any authority which states that FHWA regulations implementing NEPA require traffic modeling projections in order to demonstrate that an action will not significantly impact travel patterns. This is not a case where Defendants ‘barely took any look’ at the traffic consequences of the Project in the CE Checklist. Rather, the court is satisfied that Defendants took the required “hard look” at the impact of the Project on travel patterns.”

Historic Resource Impacts – Finding of Insignificance. The plaintiffs argued that the project had significant direct and cumulative effects on historic resources, and therefore did not qualify for a CE. The court rejected both of these arguments.

Direct Effects on Historic Properties. The plaintiffs cited statements in by Section 106 consultants acknowledging the potential for adverse effects on historic properties, based on traffic and visual impacts. FHWA responded that those potential adverse effects were resolved through a Memorandum of Agreement. The court accepted FHWA’s position, noting that “In fact, direct visual impacts to historic sites and the direct impact of rehabilitation of the Bridge itself are resolved in the MOA. The MOA provides, in pertinent part, that the reconstructed Bridge will mimic the original in its appearance and materials, and vegetation that is removed will be replaced in accordance with a landscape plan. The MOA is a contract and Defendants are bound by its terms.”

Cumulative Effects on Historic Properties. The plaintiffs argued that the cumulative effects of other projects – specifically, a major new “East End Bridge” proposed in the area – precluded use of a CE. The court rejected this argument, holding that “any impacts … from the abovementioned possible megaprojects are rightfully reserved for study as part of those projects. To conflate the estimated impacts of the proposed East End Bridge, for example, with the impacts of the Project would only serve to obfuscate rather than enlighten the Project’s overall environmental effects.” Section 4(f)

Prudent and Feasible Alternative. The plaintiffs argued that a Section 4(f) programmatic evaluation should not have been used, because there was a reasonable alternative – the “Enhanced One-Lane Bridge Alternative” – that FHWA was obligated to consider in an individual (not programmatic) Section 4(f) evaluation. FHWA argued that it had already considered a similar alternative – the one-lane rehabilitation option – and had appropriately rejected it because it would not improve safety. The plaintiffs challenged the contention that a one-lane bridge is less safe. The court deferred to FHWA’s determination that (1) there was a need to improve safety, and (2) a one-lane rehabilitation option would not achieve the goal of improving safety.

Applicability of Programmatic Evaluation. The plaintiffs argued that the programmatic evaluation for projects with minor impacts on historic sites did not apply, because the project’s impacts would not in fact be minor. The court noted that, under the programmatic evaluation, an impact is considered minor if the Section 106 process results in a finding of “no adverse effect” and the SHPO agrees with that finding and accepts the proposed mitigation. Because those requirements were satisfied, the court upheld the use of the programmatic evaluation.