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COALITION ON SENSIBLE TRANSP. v. DOLE

July 24, 1986

COALITION ON SENSIBLE TRANSPORTATION INC., ET AL., Plaintiffs,
v.
ELIZABETH DOLE, United States Secretary of Transportation, ET AL., Defendants



The opinion of the court was delivered by: GASCH

 Oliver Gasch, Senior Judge

 This case is before the Court on the parties' cross-motions for summary judgment and plaintiffs' motion for a preliminary injunction. Plaintiffs are the Coalition on Sensible Transportation, the North Bethesda Congress of Citizens Associations, the Sierra Club, and the Washington Area Bicyclists Association. Defendants are Elizabeth Dole, Secretary of Transportation, and Ray Barnhart, Administrator of the Federal Highway Administration ("FHWA"). Defendant-intervenors are Hal Kassoff, Administrator of the Maryland State Highway Administration ("SHA"), the City of Gaithersburg, Maryland, and the Mayor and Council of Rockville, Maryland.

 I. BACKGROUND

 At issue in this litigation is a project which would widen Interstate 270 ("I-270"), a highway which runs through Montgomery County, Maryland. I-270 connects Interstate 70 with Interstate 495, the "Beltway" which encircles metropolitan Washington, D.C. The I-270 corridor is a major transportation corridor and is a heavily travelled route for traffic to and from Washington, D.C. as well as communities such as Rockville and Gaithersburg. Substantial economic development along the corridor has caused increased traffic on and around I-270.

 A. Description of the Project

 The I-270 project would widen approximately 16 miles of highway, extending from the I-270 spur ("spur" or "Y-split") near Montrose Avenue north to the intersection with MD 121. Finding of No Significant Impact ("FONSI"), Administrative Record ("A.R.") 357, at I-1. This expansion of I-270 is expected to cost more than $113 million and will take five years to complete. Id. (Table 1); A.R. 358.

 The I-270 project may be divided into several parts. In the stretch of I-270 running from the I-270 spur to MD 124, the highway would be widened from six lanes to eight "mainline" lanes and four "continuous collector-distributor" ("CC-D") lanes. Two CC-D lanes would be constructed in each direction on this stretch of I-270. FONSI at II-5-6, Plate 2.

 The CC-D lanes are designed to separate entering and exiting traffic from the mainline I-270 lanes in order to facilitate the flow of "through" traffic. FONSI at II-5. The CC-D lanes will be separated from the mainline lanes by a barrier that will be periodically interrupted by "slip ramps" that permit access from the CC-D lanes to the mainline lanes, and vice versa. Id. The traffic on the CC-D lanes would travel at lower speeds in order to promote safer ingress to and egress from the mainline lanes. Id.

 From MD 124 to MD 118, a distance of slightly more than three miles, I-270 would be widened from six to eight mainline lanes. FONSI at II-5-6, Plate 3. Finally, from MD 118 to MD 121, I-270 would be widened from four to six lanes. Id. No CC-D lanes would be constructed along these stretches of I-270. Id. In addition to these widenings of I-270 itself, the project entails modification of the interchanges at Montrose Road, Middlebrook Rd./MD 118, and MD 28. FONSI at II-10-15. *fn1"

 B. Development of the I-270 Project

 The possibility of widening I-270 has been under discussion since the early 1970's. See A.R. 9, 10, 11. Consideration of the instant project began in 1979, when the SHA developed a project planning prospectus which addressed conditions in the I-270 corridor from the I-270 spur to MD 121 and discussed proposals for improving traffic flow. See A.R. 32. This document was circulated to various federal and state agencies for comment and review. See A.R. 33, 34, 35. Thereafter a consultant was hired and project planning began in earnest. See A.R. 39, 40, 44, 45.

 The administrative record establishes that, between 1980 and 1983, project planners discussed and studied various matters related to construction along I-270, including historic sites, A.R. 58, 64; archeological areas, A.R. 72, 75; environmental conditions, A.R. 73; noise levels, A.R. 69, 276; and air quality, A.R. 197, 199, 199a, 200. Planners also reviewed traffic patterns and forecasts. See A.R. 67, 71, 84, 92, 106, 113, 123, 148, 151, 168, 169. Officials discussed means of improving traffic service and developed alternate proposals that included ramp metering, high occupancy vehicle ("HOV") lanes, widening to eight lanes, and widening to eight lanes with CC-D lanes. See A.R. 63, 76, 77, 80, 81, 95, 139, 153, 173, 185.

 On June 11, 1983, the SHA held a public informational meeting on the I-270 project and the alternatives under consideration. A.R. 168, 171. The meeting, held in Montgomery County, was attended by approximately 70 people, who commented on the proposals. A.R. 171. On August 3, 1983, the I-270 project team decided that the eight-lane, CC-D lane proposal and the no-build alternative would be studied in detail. A.R. 180. Although it presented potentially the worst-case environmental effect, the eight-lane, CC-D lane proposal was deemed the "preferred alternative" because it provided the highest traffic capacity on I-270 and the best service. Id.

 By the end of 1983, the SHA had prepared preliminary drafts of an environmental analysis ("EA") and environmental statement required by Section 4(f) of the Department of Transportation Act, which concerns use of parkland in highway construction. See A.R. 193, 205, 208, 208a. This document was sent to the FHWA for comment and, after some revisions, was approved by the FHWA on January 13, 1984. See A.R. 229.

 On February 15, 1984, the SHA held a combined location/design public hearing on the I-270 project in Rockville. See A.R. 225, 266. A report prepared in advance of the hearing and mailed to organizations on the SHA mailing list identified the proposals that had been studied and described the eight-lane, CC-D lane plan as the preferred alternative. See A.R. 225. The public hearing was attended by about 280 people, 28 of whom spoke for the record. FONSI at I-3; see A.R. 266, vol. 1.

 In response to comments made at the public hearing, three alterations to the preferred alternative were adopted. These alterations involved shifting the roadway south of Montrose Road 24 feet to the west, shifting the roadway south of MD 28 30 feet to the east, and shifting the roadway between MD 28 and the proposed Gude Drive Bridge 43 feet to the west. FONSI at II-7-10. These shifts were made to move the highway farther away from certain residential areas. See A.R. 266, 258, 269.

 On April 30, 1984, the FHWA determined that the public hearing requirements established by Section 128 of the Federal-Aid Highway Act had been satisfied. See A.R. 297. Thereafter, the SHA submitted the FONSI to the FHWA. A.R. 338. The FHWA concluded that the I-270 project's environmental impact was not significant and approved the SHA's recommendation for a FONSI. A.R. 356, 357. The SHA then issued a public notice announcing that the Department of Transportation had given location and design approval for the I-270 project. A.R. 362.

 C. Evaluation of Alternative Proposals

 During the administrative consideration of the I-270 project, five alternatives were discussed: the no-build alternative; widening I-270 to eight lanes without CC-D lanes; use of HOV lanes; ramp metering; and widening I-270 to eight lanes with CC-D lanes. See FONSI at II-1-10. These proposals and the reasons for their rejection will be briefly discussed.

 1. No-Build

 The no-build alternative involved only normal maintenance of I-270 without widening. FONSI at II-1. This alternative was rejected for failure to relieve traffic congestion. Id.; see also A.R. 361, at 1. The SHA concluded that, as development in the I-270 corridor intensified, traffic volume on I-270 and other roads in the corridor would increase. Without new construction to alleviate congestion, the SHA found that accident rates would increase and traffic would be diverted to other routes in the corridor, thereby increasing congestion on those routes. FONSI at II-1.

 2. Widening to Eight Lanes Without CC-D Lanes

 This proposal would have added a traffic lane in each direction from the I-270 spur to MD 121, so that there would be eight lanes from the I-270 spur to MD 118 and six lanes from MD 118 to MD 121. FONSI at II-2. The SHA rejected this alternate for several reasons. First, existing ramps along I-270 would need to be lengthened, thus requiring "extensive right-of-way acquisitions and relocations resulting in greater overall adverse impact and substantially greater costs." Id. Second, bridges passing over I-270 would need to be reconstructed to accommodate the addition of new lanes. Id. Third, the alternative would not adequately handle traffic demand in 2010, the "design year" of the I-270 project. Id.; see also A.R. 361, at 1.

 3. HOV Lanes

 Under this proposal, additional lanes would be constructed and would operate as express lanes or HOV lanes. FONSI at II-3. This alternative was rejected primarily as a result of estimated traffic patterns in the I-270 corridor. Id.; A.R. 361, at 1. Projections indicated that a substantial portion of traffic on I-270 was between communities in the corridor and that only a "relatively small percentage of traffic" was destined for the Washington, D.C. central business district. FONSI at II-3. The SHA decided that the express-HOV lanes proposal would not significantly alleviate congestion. Id. at II-4. In addition, bridges over I-270 would have to be reconstructed to permit direct access to the express-HOV lanes. Id.

 4. Ramp Metering

 This alternative called for installation of two-stage traffic lights on entrance ramps to I-270. FONSI at II-4. The metering would attempt to control the flow of vehicles onto I-270 to ensure that traffic would not exceed capacity. Id. This proposal was considered in conjunction with the no-build and eight-lane alternates and rejected. Id. at II-5. The SHA determined that metering would result in "no net savings in vehicle hours of travel" in the I-270 corridor with metering the eight-lane alternate. Id.

 The FONSI includes a Section 4(f) statement that describes the parklands and conservation areas that will be affected by the I-270 project and the steps that will be taken to mitigate harm in those areas. See FONSI at VII-1-11. In all, seven parks and conservation areas were examined: Tilden Park, Cabin John Regional Park, Rockmead Park, Wootten Mill Park, Middlebrook Hill Neighborhood Conservation Area, Metropolitan Grove Road Park, and Seneca Creek State Park. The anticipated impact on these areas will be discussed separately.

 1. Tilden Park

 This 79-acre park, operated by the Maryland National Capital Park and Planning Commission ("MNCPPC"), lies east of I-270. FONSI at VII-1-2. As the project was initially planned, 0.1 acre of Tilden Park would have been used for slopes abutting the highway. Id. at VII-4. Following the public hearing, however, the location of the I-270 project was shifted, so that no property in Tilden Park will be affected. Id.

 2. Cabin John Regional Park

 This 525-acre park, operated by the MNCPPC, is located on both sides of I-270 between the I-270 spur and Montrose Road. FONSI at VII-2. The I-270 project will use more than 7.8 acres of the park in temporary easements to construct slopes abutting the highway. Id. at VII-5. While this use could be avoided through construction of a 7,150-foot retaining wall at a cost of $ 5,461,000, this proposal was rejected as imprudent and infeasible by both the MNCPPC and the SHA. Id.

 During the pendency of I-270 construction, the MNCPPC will grant temporary easements to permit grading of the 7.8 acres. FONSI at VII-5. Thereafter, eight-foot retaining walls will be constructed in certain areas and the acreage will be landscaped, revegetated, and returned to the MNCPPC for use as parkland. Id. The FONSI indicates that the MNCPPC determined that this approach would be more natural and aesthetically acceptable than construction of a large retaining wall. Id.

 3. Rockmead Park

 This 28-acre park lies on the west side of I-270 directly south of the MD 28 interchange. FONSI at VII-2. While use of 1.1 acres of the park was originally contemplated, the SHA elected to avoid any encroachment onto the park through erection of retaining walls. Id. at VII-5. Noise barriers also will be provided along park property. Id.

 4. Wootten Mill Park

 This 80-acre park, operated by the City of Rockville, lies east of I-270 and south of the MD 28 interchange. FONSI at VII-3. It was originally thought that the project would encroach upon a strip of parkland between Watts Branch Parkway and I-270 and would require permanent acquisition of 0.2 acre of parkland. Id. at VII-6. Later engineering studies determined, however, that no parkland need be acquired. See Affidavit of Neil J. Pedersen, Director of SHA Office of Planning and Preliminary Engineering, at 7 (May 19, 1986).

 5. Middlebrook Hill Neighborhood Conservation Area

 This parcel of 11.5 acres is owned by the MNCPPC and is located on the east side of I-270 near Seneca Creek State Park. FONSI at VII-3. During I-270 construction, the MNCPPC will grant a temporary construction easement of 0.5 acre. Id. at VII-6. After construction is completed, this parcel will be revegetated and will remain under MNCPPC jurisdiction. Id.

 6. Metropolitan Grove Road Park

 This 31-acre park is operated by the City of Gaithersburg and lies west of I-270 and north of the MD 124 interchange. FONSI at VII-3. The project requires use of a strip of land 600 feet long and 40 feet wide, a total of 0.2 acre. Id. at VII-6. Temporary construction easements will be acquired for grading; thereafter the acreage will be landscaped and revegetated, and will remain under the jurisdiction of the City of Gaithersburg. Id. at VII-7. The City rejected a proposal to avoid any use of parkland through construction of 500-foot retaining walls at a cost of $500,000. Id.

 7. Seneca Creek State Park

 This 5,127-acre park, operated by the Maryland Forest Service, lies on both sides of I-270 south of Middlebrook Road. FONSI at VII-3. The I-270 project requires use of 2 acres of land in strips varying in width from 10 to 80 feet. Id. at VII-7. The Maryland Department of Natural Resources will grant temporary easements for grading, and after construction is completed, the land will be revegetated. Id. The Department of Natural Resources rejected an alternative which would have avoided any use of the parkland through construction of a 2,750-foot retaining wall at a cost of $1,650,000. Id.

 On September 28, 1984, the Director of the Office of Planning and Program Development of the FHWA approved the above-noted uses of Section 4(f) land. A.R. 361. He determined that there were no feasible or prudent alternatives to such uses and that the I-270 proposal included all possible planning to minimize harm to the parklands from such uses. Id. at 4.

 E. Other Effects of the Project

 1. Displacement and Relocation of Individuals

 The FONSI anticipates that the I-270 project construction will displace a total of 11 residences and require relocation of 25 individuals. FONSI at IV-1. All relocations will be accomplished pursuant to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Pub. L. No. 91-646. The project will provide a lead time of 18 to 24 months to accomplish these relocations. Id. at IV-1-2.

 At the MD 28 interchange, seven residences, two of which are already owned by the SHA, will be displaced. FONSI at IV-1. A total of 14 individuals, none of whom are minorities, will be relocated. Id. The FONSI notes that these relocations would have been required under any of the build alternatives and would have been desirable for safety reasons even under the no-build alternative. Id. A Relocation Assistance Report prepared for the SHA states that there is sufficient housing available to accomplish these relocations. Id. at IV-2.

 The proposed alternate for the Middlebrook Road interchange would require displacement of three residences and relocation of 10 persons, all of whom are minorities. FONSI at IV-1-2. A study found that there is no adequate housing available within the financial means of these people, so that "housing as a last resort is indicated." Id. at IV-2.

 The Montrose Road interchange construction will displace one non-minority residence. FONSI at IV-2. Sufficient housing is said to be available for relocation of the owner-occupier of this residence. Id.

 2. Water Quality

 Construction may cause sedimentation that could adversely affect aquatic species. FONSI at IV-3. The SHA will use erosion and sediment control methods to minimize the impact of this sedimentation upon water quality. Id. The SHA also will provide stormwater management facilities to filter out pollutants such as heavy metals and trash that will be discharged from the I-270 right-of-way. Id. at IV-3-4.

 3. Wetlands

 Three types of wetlands will be affected by the I-270 project. FONSI at IV-4-6. The first type, seasonally flooded basins or flats, will be affected primarily along Watts Branch, due to construction of the MD 28 interchange, and along Gunner Branch, due to construction of the Middlebrook Road interchange. Id. at IV-4. In all, approximately six acres of these wetlands will be lost due to widening of the roadway and grading into the floodplain. Id. The FONSI notes that the only alternative to this loss of wetlands is to forgo construction of the MD 28 and Middlebrook Road interchanges. FONSI at IV-4. Other alternatives, such as relocation of streams rather than piping, were rejected. Id. at IV-4-5. The FONSI states that a six-acre loss "represents a negligible reduction" in this type of wetland in the project area. Id. at IV-4.

 The second type of wetland affected is inland fresh meadow. FONSI at IV-5. Half an acre of this type of wetland, about 10 percent of the meadow in the project area, will be lost. Id. The FONSI describes this loss as negligible. Id. These wetlands are to be replaced at locations to be selected by the Department of Natural Resources. Id.

 Approximately four acres of inland open fresh water, the third type of wetland, will be lost through sedimentation caused by the construction. FONSI at IV-5. Most of this acreage loss is due to the MD 28 and Middlebrook Road interchange construction. Id. The FONSI states that this loss of habitat is negligible, as it amounts to only a small portion of the total amount of inland open fresh water available along streams in the project area. Id. at IV-5-6.

 The FONSI concludes that there is no practicable alternative to the above-noted loss of wetlands and that the project will employ all practicable methods to minimize harm to wetlands. FONSI at IV-7.

 4. Wildlife Habitat

 The FONSI acknowledges that various terrestrial habitats will be lost due to project construction, with a resulting reduction in wildlife populations inhabiting those areas. FONSI at IV-7. The FONSI states, however, that this loss of wildlife habitat is proportionately negligible. Id.

 5. Noise

 Noise levels at 33 noise-sensitive areas along the project were monitored by the SHA. FONSI at IV-8. Fourteen of the 33 areas currently have ambient noise levels higher than the FHWA noise abatement criteria of 70 dBA. Id. Under the no-build alternative, predicted noise levels would exceed 70 dBA at 21 of the 33 areas. Id. Under the project, predicted noise levels would exceed 70 dBA at 24 areas. Id. The FONSI states that noise barriers will be recommended at six locations that represent 13 of the noise sensitive areas. Id. The cost of these barriers is estimated at $4 million. Id.

 6. Air Quality

 Testing indicates that the project will produce concentrations of carbon monoxide 1-2 parts per million higher than would exist under the no-build alternative. FONSI at IV-8. Under either the project or the no-build alternative, there would be no violations of the National Ambient Air Quality Standards in either 1990 or 2010. Id.

 II. DISCUSSION

 Plaintiffs allege that three statutes were violated during the consideration and approval of the I-270 project: Section 102(2)(C) of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4332(2)(C); Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303(c) (1983 Supp.); and Section 128 of the Federal-Aid Highway Act, 23 U.S.C. § 128 (1982). The Court will consider these arguments in turn. *fn2"

 A. Violation of NEPA

 Plaintiffs assert that defendants violated NEPA in two respects. First, they contend that defendants acted improperly by failing to prepare an environmental impact statement ("EIS") prior to approval of the I-270 project. Second, they assert that the EA and FONSI developed by defendants were inadequate as a basis for determining not to prepare an EIS.

 1. Statutory Provisions and Standard of Review

 Section 102(2)(C) of NEPA provides that

 
All agencies of the Federal Government shall --
 
(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on --
 
(i) the environmental impact of the proposed action,
 
(ii) any adverse environmental effects which cannot be avoided should the ...

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