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Case Law Updates on the Environment (CLUE)

Case Law Update Details

Case Title

Waukesha County Environmental Action League v. USDOT

Case No.

2018 WL 5085519

Court

U.S. District Court - Wisconsin

State

Wisconsin

Date

10/18/2018

Project

West Waukesha Bypass

Project Type

Highway

Project Description

This project is a proposed four-lane divided arterial roadway on the west side of the City of Waukesha, Wisconsin. The purposes of the project were to improve safety by providing a north-south roadway west of Waukesha that met current design standards and to accommodate existing and projected traffic demand. The Wisconsin Department of Transportation (WisDOT), Waukesha County, and FHWA published a DEIS in 2012. The agencies held a public hearing on the DEIS that included (1) an open house for members of the public to discuss the project with agency representatives, (2) a formal hearing with an opportunity to provide public testimony to a panel of agency representatives in an auditorium, and (3) an opportunity to provide private testimony to a court reporter. The agencies issued an FEIS in 2014 and a ROD in 2015, but then proposed to shift the project’s alignment to avoid impacting a wetland. In 2016, the agencies prepared a reevaluation that studied the realignment and determined that a supplemental EIS was not necessary. The U.S. Fish and Wildlife Service (FWS) concurred that the project was covered under a programmatic biological opinion for transportation projects in the range of the northern long-eared bat, a threatened species.

Case Summary

The plaintiffs alleged that the agencies committed various violations of NEPA, including failing to adequately analyze reasonable alternatives, failing to adequately analyze indirect and cumulative impacts, failing to prepare a supplemental EIS, and inadequately describing mitigation measures. The plaintiffs also alleged that the agencies violated the public hearing requirement in the Federal-Aid Highways Act and violated the Endangered Species Act by failing to consult with FWS on impacts to the northern long-eared bat. The court rejected all the plaintiffs’ arguments and upheld the agencies’ decision.

Key Holdings

NEPA

Alternatives Analysis.

Two-Lane Alternatives.  The plaintiffs claimed that the agencies defined the project’s purpose and need too narrowly, which allegedly allowed the agencies to eliminate two-lane alternatives for the project’s northern section solely because those alternatives were not consistent with earlier transportation plans. The EIS stated that the purpose and need were based on project history, transportation and land use planning, traffic demand, truck traffic, highway capacity, safety, roadway characteristics and deficiencies, system linkage, and environmental and socioeconomic impacts. The EIS also explained that the agencies eliminated the two-lane alternatives based on a combination of reasons, including future traffic volumes, safety, the number of homes that would be displaced, and public support. The court determined that the agencies “both (a) considered more than just the project’s history in defining their purpose and need and (b) rejected the two-lane alternatives for many reasons, not just because they did not comport with old transportation plans. The plaintiffs disagree with the agencies’ conclusions, but the agencies’ definition of the project’s purpose and need does not constitute clear error.”

Combination of Alternatives.  The plaintiffs argued that the agencies should have considered whether a combination of rejected alternatives could meet the project’s purpose and need, even though the agencies had determined that each of those alternatives individually would not meet the project’s objectives. In particular, the plaintiffs claimed that the agencies should have considered whether the project’s purpose and need could be met by a combination of rejected alternatives that included expanding public transit, implementing coordinated signal timing, and making improvements to the existing two-lane roadway in the project corridor. The court held that the agencies did not need to evaluate a combination of rejected alternatives because there was no evidence in the administrative record that a combination of rejected alternatives would meet the project’s purpose and need:

“Here, the record shows that the plaintiffs’ proposed alternatives would be ineffective in fulfilling the project’s purpose and need. Nothing indicates that a combination of the alternatives would adequately address the project’s purpose and need. Without grounds in the record for concluding that some combination of alternatives might be effective, the court finds that the defendants’ failure to consider a combination of individually ineffective alternatives did not constitute clear error in violation of the [Council on Environmental Quality NEPA] regulations.”

No-Action Alternative.  The plaintiffs argued that the agencies improperly rejected the no-action alternative because the EIS overestimated traffic delays and the Level of Service on a nearby roadway, did not discuss the possibility of increasing speed limits, and did not address whether existing hills in the project area correlate with increased accidents. The court deferred to the agencies’ expertise in calculating the roadway’s Level of Service: “the court is not a professional transportation analyst. It declines to critique the agencies’ methodology in reaching its Level of Service determination.” The court also held that the EIS sufficiently discussed the roadway’s characteristics and deficiencies, noting that the EIS included an explanation that locations in the project corridor with hills that exceed WisDOT’s recommended maximum grade also have crash rates above the statewide average. The court concluded that the agencies made a sufficiently informed decision to reject the no-action alternative: “The record reflects that the agencies conducted safety analyses using empirical data. The record also shows that the agencies used the Road Safety Audit to evaluate relative safety implications of different alternatives.”

“No-Build Improve” Alternative.  The plaintiffs claimed that the agencies improperly rejected an alternative (the “No-Build Improve” Alternative) that involved making improvements to the existing two-lane roadway along the project corridor (including adding turn lanes, adding stop signs and stop lights, reducing speed limits, improving signage, and minimizing a hill at one intersection). The plaintiffs challenged the agencies’ decision to rely on the Road Safety Audit for a different two-lane alternative to analyze the safety of the No-Build Improve Alternative, which the agencies concluded would have similar impacts. The court held that the agencies provided an adequate reason for not separately modeling the No-Build Improve Alternative given their conclusion that the two alternatives would have similar crash characteristics.

Project Need.  The plaintiffs argued that a four-lane roadway was not needed for a portion of the project where crash rates were lower than the statewide average. The court noted that the EIS adequately explained how inconsistencies in route width (i.e., expanding from two lanes to four lanes, then tapering back to two lanes) could increase the risk of crashes compared to a consistent four-lane roadway. The court explained that this was a sufficient reason for building four lanes for the entire project.

Indirect Impacts.  The plaintiffs claimed that the EIS did not address indirect impacts that the project would have on urbanization and development. The court disagreed. The court explained that the EIS discussed how the project would induce residential development and how environmental features (including wetlands and floodplains near the project) would limit areas for residential or commercial development.

Cumulative Impacts.  The plaintiffs claimed that the EIS did not adequately analyze cumulative impacts, including commercial development, air quality and noise impacts, and the amount of impervious surfaces in the Pebble Creek watershed. The plaintiffs also alleged that the cumulative impacts study area was too small. The court held that the EIS adequately considered cumulative impacts. The court noted that the EIS discussed how commercial development would be limited by environmental features (such as wetlands and floodplains) and how the project was expected to improve overall air quality by reducing idling times. The EIS also explained that the project would cause a slight increase in imperviousness in the Pebble Creek watershed but that it remain below the threshold for maintaining biotic integrity that was identified in a prior watershed protection plan. The court also held that the agencies adequately explained their reasons for selecting the Pebble Creek watershed—rather than the larger Fox River basin—for analyzing cumulative impacts. The EIS explained that the Pebble Creek watershed was chosen because wetlands and water quality were the key resources evaluated in the cumulative impacts analysis and the watershed’s boundaries included the project area and the nearby area that was most likely to experience development. “While the Final EIS did not discuss precisely why it chose the Pebble Creek Watershed as opposed to the other boundaries, the agencies did not fail to provide their reasoning.”

Mitigation.  The plaintiffs claimed that the mitigation measures in the ROD were not sufficiently definitive. The plaintiffs also argued that the agencies impermissibly delegated identification of mitigation measures to the Army Corps of Engineers (Corps): After the agencies redesigned the project to avoid impacting a wetland, the agencies no longer committed to preserve upland forest (which the Corps had previously required to mitigate impacts to the wetland), and the Corps concurred in its decision. First, the court explained that NEPA did not require the agencies to commit to definite mitigation measures; rather, it was sufficient for the EIS and ROD to discuss how the agencies would identify certain mitigation measures in future stages of the project. Second, the court held that the agencies did not impermissibly delegate mitigation to the Corps. The court explained that the agencies adequately described the project to the Corps after the redesign, and the Corps concurred that protecting upland forest was no longer required as mitigation.

Supplementation.  The plaintiffs challenged the 2016 re-evaluation and claimed that the agencies should have prepared a supplemental EIS to evaluate impacts associated with the redesign of the project (which would use an additional 11.2 acres of right-of-way) and the removal of 6,500 tons of newly identified hazardous waste within the project corridor. The court concluded that the re-evaluation document adequately considered whether the re-design would cause any significant impacts. The court also affirmed the re-evaluation’s conclusion that the removal of newly discovered hazardous waste would not be a significant impact, noting that the Wisconsin Department of Natural Resources approved of the removal of the contaminated soil.

Endangered Species Act

The plaintiffs claimed that the agencies did not adequately consult with FWS regarding the project’s impacts on the northern long-eared bat, a threatened species. FWS concurred with the agencies’ determination that the project was not likely to adversely affect the northern long-eared bat because the project complied with conditions in FWS’s programmatic biological opinion for transportation projects in the species’ range. The plaintiffs argued that compliance with the programmatic biological opinion was not enough to conclude that the project would not adversely affect the northern long-eared bat. The court held that the agencies had adequately consulted on impacts to threatened species, explaining that FWS’s scientific determinations are entitled to substantial deference.

Public Hearing (23 USC 128)

The plaintiffs claimed that the agencies violated the public hearing requirement in the Federal-Aid Highways Act (23 U.S.C. § 128) because the format of the public hearing allegedly diluted opportunities for members of the public to hear others’ viewpoints. The court disagreed. The court explained that even though other activities (the open house and an opportunity to provide private testimony to a court report) were occurring in other rooms at the same time as the formal hearing in the auditorium, the auditorium hearing allowed all members of the public an opportunity to provide public testimony to the agencies and to influence other interested individuals who chose to attend. This was all that was required by the Federal-Aid Highways Act, the court held. “The fact that one or more citizens chose to attend other presentations going on at the same time does not change the fact that they had an opportunity to attend the auditorium hearing. The answer to the question of whether the defendants held a ‘public hearing’ does not turn on whether anyone chooses to attend the hearing—the question is whether they had an opportunity to do so.”

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