Petition for a Writ of Certiorari — Citizens Environmental Council v. Brinegar

Supreme Court brief1974

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In the Supreme Court of the United States

OCTOBER TERM. 1973

No. . €3- 943

THE CITIZENS ENVIRONMENTAL COUNCIL, OAK

PARK HOMES ASSOCIATION, CRAIGMONT HOMES

ASSOCIATION. ROBERT J. McELWAIN, PHILLIP L.

CARR. et al..

Petitioners.

vs.

JOHN VOLPE, WILLIAM D. RUCKELSHAUS,

and ROBERT MORRISSEY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

WILLIAM H. PICKETT

801 Traders National Bank Building

1125 Grand Avenue

Kansas City, Missouri 64106

(816) 471-4115

Attorney for Petitioners

FL. Menpengatt, Inc... 26 Cherry street, Kansas Citv, Mo. 64106, 421-8036

I caer stesertcneeainaSedomins ileus Spmsaunee 1

os carat aces ehndeh eceanrs apabondenduniananawics 2

BS EEA Aa oe te OS 2

Statutory and Administrative Provisions Involved ... 2

he EE OCI 3

Reasons for Granting the Writ ..........2............eeseeeeceeeeeeeees 6

OEE SEE A SERS A Pe RR 19

Appendix A—Opinion, United States Court of Appeals,

ERR Re EE Rc eae EAR en Al

Appendix B—Order Denying Injunction ~........2220....... A6

Appendix C—Opinion, United States District Court

(AR Ta 2S BRR i ct ele Ne AQ

Appendix D—National Environmental Policy Act (Ex-

caren acres ai Mer Oi ik pO TD NSE RIOR A27

Appendix E—Environmental Impact Statement .............. A31

Appendix F—Letter to Robert W. Morrissey from

Jerome H. Svore, Regional Administrator, Environ-

nee Pees Bee A46

Appendix G—Department of Transportation Policy and

Procedure Memorandum 90-1 (Excerpts) .................... A48

Table of Authorities

CASES

Citizens Environmental Council v. Volpe, ........ F.2d

ete > E.RC. 1989 (10th Cir. 1973) -............................... 15

Committee to Stop Route 7 v. Volpe, 346 F. Supp. 731

A i a pcepaiomonmion 14

Conservation Society of Southern Vermont, Inc. v. Sec-

retary of Transportation, 362 F. Supp. 627 (D. Vt.

=) ARR as SEIN ret RRS AIA SP Ain PR cd 14, 15, 16

Environmental Defense Fund, Inc. v. Corps of Engi-

neers, 325 F. Supp. 749 (E.D. Ark. 1971) ................ 7, 11,12

Environmental Defense Fund, Inc. v. Corps of Engi-

neers, 348 F. Supp. 916 (N.D. Miss. 1972) .................... 7

Finish Allatoona’s Interstate Right v. Volpe, 355 F.

RN Te Ce, MR) BID essence teeters 15

Greene County Planning Board v. Federal Power Com-

mission, 455 F.2d 412 (2d Cir. 1972), cert. denied,

ats SL | ee ewer 13, 14, 15, 16, 18

Iowa Citizens for Environmental Quality v. Volpe, ........

F. Supp. ........, 4 E.R.C. 1755 (S.D. Iowa 1972) ........ 16,17

Life of the Land v. Brinegar, ........ fe. EE , 9 E.R.C.

Se Es BENE ths ears oionsccnemensencncniane 15, 16

National Forest Preservation Group v. Volpe, 352 F.

wane: ice CO ees. We) 16, 17

Natural Resources Defense Council, Inc. v. Morton, 458

Pe ee Cie a ccecccre secession 8

Northside Tenants’ Rights Coalition v. Volpe, 346 F.

Sma. Oe CHR ee arches 14

Pizitz, Inc. v. Volpe, 467 F.2d 208 (Sth Cir. 1972) ............ 16

Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620

RRR RANE RESALE SRI eae Arte SEER LSD 19

STATUTES

ee ON corre eee ee oeh cece 2

eae me Oe tei 6,12

MISCELLANEOUS

Greis, The Environmental Impact Statement: A Small

Step Instead of a Giant Leap, 5 Urs. Law. 264 (1973) 8

In the Supreme Court of the United States

OCTOBER TERM, 1973

(GCE SC 2 Ua ark aos

THE CITIZENS ENVIRONMENTAL COUNCIL, OAK

PARK HOMES ASSOCIATION, CRAIGMONT HOMES

ASSOCIATION, ROBERT J. McELWAIN, PHILLIP L.

CARR, et al.,

Petitioners,

vs.

JOHN VOLPE, WILLIAM D. RUCKELSHAUS,

and ROBERT MORRISSEY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The Citizens Environmental Council, et al., Petitioners,

pray that a Writ of Certiorari issue to review the judgment

of the United States Court of Appeals for the Tenth Circuit

entered on September 19. 1973.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 5

E.R.C. 1989 and a copy is attached hereto as Appendix A.

A copy of the order of the Court of Appeals denying an

injunction pending appeal to that court, is attached hereto

as Appendix B. The opinion of the District Court of Kansas

is reported at 4 E.R.C. 1970, and a copy is attached hereto

as Appendix C.

JURISDICTION

The judgment of the United States Court of Appeais

for the Tenth Circuit was entered on September 19, 1973.

The jurisdiction of this Court is invoked under 28 U.S.C.

Sec. 1254(1).

QUESTIONS PRESENTED

1. Is a general lack of detail in the environmental

impact statement (EIS) prepared for the Switzer By-Pass

project, particularly with reference to alternatives and

both air and noise pollution, sufficient to raise a genuine

issue of material fact as to the adequacy of the EIS, thereby

precluding the granting of summary judgment in favor of

the respondents?

2. Is the Federal Highway Administration and De-

partment of Transportation’s delegation of the preparation

of the Switzer By-Pass EIS to the Kansas State Highway

Commission, in violation of the National Environmental

Policy Act of 1969, sufficient to raise a genuine issue of

material fact, thereby precluding the granting of summary

judgment in favor of the respondents?

STATUTORY AND ADMINISTRATIVE PROVISIONS

INVOLVED

The pertinent provisions of the National Environ-

inental Policy Act of 1969, 42 U.S.C. Sec. 4321 et seq., are

set cut in Appendix D attached hereto. The pertinent pro-

visions of Department of Transportation Policy and Pro-

cedure Memorandum 90-1 are set out in Appendix G at-

tached hereto.

STATEMENT OF THE CASE

The northern portion of the proposed Switzer By-Pass

involves the relocation of approximately 2.76 miles of U.S.

Route 69 in the cities of Overland Park, and Lenexa, in

Johnson County, Kansas. The project begins at the north

edge of existing Interstate Highway 435, and the Switzer

Road Interchange, and extends north and west to existing

Interstate Highway 35. The project originated in 1959 in a

Kansas City Metropolitan Area Origin and Destination

Survey commissioned by the State Highway Commissions

of Kansas and Missouri. The survey specifically considered

population trends, population growth, passenger car reg-

istration and ownership, and labor force-employment in

Johnson County, Kansas.

The corridor location was determined prior to the

urbanization of this part of the Kansas City metropolitan

area, but the record of the hearing conducted by the Kansas

tate Highway Commission on April 2, 1959, is replete with

evidence that the area through which the proposed by-pass

would travel was undergoing rapid development, both for

residential and commercial uses. It was with the expecta-

tion that the selected corridor would eventually be densely

populated that the location was chosen. On August 26,

1959, the Kansas State Highway Commission was notified

by the Federal Highway Administration that the proposed

by-pass had been approved for addition to the Federal-aid

primary system. The state acquired right-of-way between

March. 1962 and July. 1964, prior to the development of the

‘=

area, as a measure of reducing acquisition costs. The land

acquired has remained under-developed.

On January 1, 1970, the National Environmental Policy

Act of 1969, 42 U.S.C. 4321 et seq., became effective. On

November 30, 1970, the FHWA issued a draft Instructional

Memorandum requiring preparation of an EIS for projects

receiving design approval after February 1, 1971, and

delegating responsibility for preparation of the EIS to the

state highway departments. (This Instructional Memo-

randum was superceded by Department of Transportation

Policy and Procedure Memorandum 90-1 (PPM 90-1) on

August 27, 1971. With regard to the authorization of dele-

gation of EIS preparation, the two regulations are sub-

stantially the same. )

A design hearing, considering the specific location,

major design features, relocation, and the economic, social

and environmental effects of the proposed by-pass, was

held in Overland Park, Kansas, on April 23, 1971. The

final EIS, which was prepared by the Kansas State High-

way Commission, was accepted by the Federal Highway

Administration on August 26, 1971. (The EIS is attached

hereto as Appendix E.) Design approval for the project

and authorization to complete plans, specifications and esti-

mates were given on November 16, 1971. This suit was

filed on November 23, 1971.

In substance, the amended complaint alleges that the

EIS prepared by the Kansas State Highway Commission is

inadequate because it fails to consider alternatives, or the

effects of the by-pass on noise or air pollution. It also

alleges the EIS is inadequate because it did not constitute

an independent determination of the environmental effects

of the proposed Switzer By-Pass by the Federal Highway

Administration, a division of the Department of Transpor-

tation, the federal agency ultimately responsible for the

project.

On May 4, 1972, Jerome Svore, Regional Administrator

of the Environmental Protection Agency, commented in a

letter to the Division Engineer of the Federal Highway

Administration:

Because of the lack of data on both air pollution and

noise levels which will result from the project, it is

impossible to determine the extent or impact of en-

vironmental damage. We suggest that data sufficient

to make these determinations be compiled before con-

struction is initiated.

The full text of Mr. Svore’s letter is attached hereto as

Appendix F.

Motions for summary judgment were made by Re-

spondents, pursuant to Rule 56, F. R. Civ. Proc. After con-

sideration of the pleadings, briefs filed by the parties and

amici curiae, and supporting affidavits, the district court

granted summary judgment for Respondents on January

3, 1973. Timely appeal was taken by the Petitioners, and

on September 19, 1973, the United States Court of Appeals

for the Tenth Circuit affirmed the judgment of the lower

court.

REASONS FOR GRANTING THE WRIT

1. The General Lack of Detail in the EIS Prepared

for the Switzer By-Pass Project, Particularly with

Reference to Alternatives and Both Air and Noise

Pollution, Is Sufficient to Raise a Genuine Issue

of Material Fact As to the Adequacy of the EIS,

and Thereby Precludes the Granting of Summary

Judgment in Favor of the Respondents.

The National Environmental Policy Act of 1969' re-

quires that a detailed statement of environmental impact

be prepared for any “major Federal action significantly

affecting the quality of the human environment.’? The

detailed statement, to be made by “the responsible Federal

official,’ is to cover:

(i) the environmental impact of the proposed action;

(ii) any adverse environmental effects which cannot

be avoided should the proposal be implemented;

(iii) alternatives to the proposed action;

(iv) the relationship between local short-term uses of

man’s environment and the maintenance and en-

hancement of long-term productivity, and

(v) any irreversible and irretrievable commitments

of resources which would be involved in the pro-

posed action should it be implemented.’

Given the incredibly broad spectrum of federal agency

activity which falls under the aegis of NEPA, the amount

of detail required in any particular EIS must of necessity

1. 42 U.S.C. Sec. 4321 et seq. (1970).

2. Id. at Sec. 4332(2)(C).

depend in large measure on the nature of the project itself.

Although no rigid rules are possible of application or en-

{crcement, the courts have developed fundamental princi-

ples to guide them, and as a result, there is a comparatively

uniform approach to the question of “sufficient detail.”

That approach usually takes one of two forms.

The first is the view enunciated by Judge Eisele in the

first Gillham Dam decision: NEPA requires the full dis-

closure of “all known possible environmental conse-

quences.”* The second, as suggested by Judge Keady in

the Tennessee-Tombigbee Waterway decision, is to apply

the more traditional “rule of reason” standard.’ In reality,

beth approaches are very similar, differing only somewhat

in degree rather than kind. As Judge Keady defined the

necessary detail:

. . . the EIS must be “marked by abundant detail or

thoroughness in treating small items or parts”; .. .

Thus, a Section 102 statement must thoroughly discuss

the significant aspects of the probable environmental

impact of the proposed agency action. By definition,

this excludes the necessity for discussing either in-

significant matters, such as those without import, or

remote effects, such as mere possibilities unlikely to

occur as a result of the proposed activities.*

Although Judge Eisele might perhaps require more delving

into the lesser probabilities and possibilities than Judge

Keady, both require a thorough report on the environ-

mental consequences of the proposed action.

4. Environmental Defense Fund, Inc. v. Corps of Engincers

of the United States Army, 325 F. Supp. 749, 759 (E.D. Ark. 1971).

5. Environmental Defense Fund, Inc. v. Corps of Engineers

of the United States Army, 348 F. Supp. 916, 932 (N.D. Miss.

1972).

6. Id.

a OIL e Ad et), da | 4

porn we mameny

This thoroughness must be evidence in the EIS in all

of the six categories listed in NEPA, but particularly in the

discussion of alternatives. The language of the Court of

Appeals for the District of Columbia Circuit is representa-

tive of the general view:

A sound construction of NEPA .. . requires a presenta-

tion of the environmental risks incident to reasonable

alternative courses of action.

We reiterate that the discussion of environmental ef-

fects of alternatives need not be exhaustive. What is

required is information sufficient to permit a reason-

able choice of alternatives so far as environmental

aspects are concerned.... (It is not) appropriate...

to disregard alternatives merely because they do not

offer a complete solution to the problem.’

As one commentator has recently suggested, two of

the three key factors to be considered in determining the

adequacy of an EIS are the amount of detail, i.e., “sufficient

information to alert the decisionmakers to the most prob-

able ‘or definite) environmental consequences of the (pro-

posed) project” and a listing and evaluation of reasonable

alternatives to the project.‘

The application of these principles clearly demon-

strates the inadequacy of the EIS prepared by the Kansas

State Highway Commission for the Switzer By-Pass.

The By-Pass is an expensive project involving the con-

struction of a major highway through a portion of Johnson

County which is becoming urbanized at a rapidly in-

7. National Resources Defense Council, Inc. v. Morton, 458

F.2d 827, 836 (D.C. Cir. 1972).

8. Greis, The Environmental Impact Statement: A Small

Step Instead of a Giant Leap, 5 Urs. Law. 264 (1973).

creasing rate. Yet while acknowledging that traffic de-

mands in the area are now several times greater than the

1964 estimates,* nowhere dces the EIS mention the effects

of 51,602 vehicles per day’ on ambient air quality. The

EIS does not once mention air pollution. Nor is there an

even remotely adequate discussion of the amount or effects

of the noise which will be generated by this volume of

traffic. The only references to noise are:

1. a suggestion: that reduction in traffic on Metcalf

Avenue, two miles east of Switzer Road, will de-

crease ambient noise;"'

2. the statement that the increased traffic would “in-

crease the noise level” but that an effort was made

to reduce the noise by selecting a depressed main

line design:’*

3. a repetition of the preceding statement.’*

With regard to alternatives, the EIS lists three which

were “considered”:

1. not constructing the project (developing existing

routes) ;

2. closing parallel streets:

3. not allowing access to local cross streets."

However, in the body of the EIS, the only “discussion” of

these alternatives consists of a bare three paragraphs which

simply state a conclusion such as:

9. Appendix E at A33.

10. Id. at A32.

1l. Id. at A34.

12. Id. at A35.

13. Id. at A37.

14. Id. at A35.

Ben

Any plan which would not use the existent right of

way would be inconsistent with commitments and

planning which has been made in cooperation with

local agencies, governmental units and the commu-

nity.”

It is respectfully suggested to the Court that those three

short paragraphs can by no stretch of the imagination be

said to be an adequate discussion of even the three alterna-

tives listed, much less any others, such as the development

of mass transit. And in view of the energy crisis now

facing this nation, it is mandatory that this project be

re-evaluated, thoroughly and objectively, particularly

when considered in relation to our dwindling energy re-

sources and the need for alternative modes of transporta-

tion to the passenger car.

The function of an EIS is clearly to provide the agency

decisionmaker with as complete information as possible

about the environmental consequences of the proposed ac-

tion, in order that the decisionmaker may consider this as

one of the factors before making a final decision to modify,

cancel, or proceed with the project. To use the EIS to

justify a decision already reached is to pervert and distort

the intent of Congress in enacting NEPA. Yet an exami-

nation of the phraseology of this EIS strongly suggests

that rather than community desire being one factor in the

objective evaluation of the Switzer By-Pass project, the

EIS is an exercise in self-justification for the project.

For instance, the language quoted above suggests this

view, as well as:

Alternative routes, after years of development con-

templating the construction of the project on existent

15. Id. at A35.

rights of way, are in conflict with existing and pro-

jected growth patterns. ”

Existing planned and controiled urban developments

.. and the continued urban growth that has formed

in the anticipation of the construction of this freeway

indicates an enhancement of the area of influence.

(emphasis added)

The total impression left by this EIS is that the only thing

which is important about the Switzer By-Pass is that it

be built along the previously planned route, and not that

the fundamental policy of NEPA—the full, good-faith con-

sideration of environmental effects before reaching a de-

cision—is to be followed.

This is not to suggest that the work which has already

gone into the project is not an important factor in the

decisionmaking process:

The Court ... is suggesting that the degree of the

completion of the work should not inhibit the objec-

tive and thorough evaluation of the environmental

impact of the project as required by NEPA... . as

the Court interprets NEPA, the Congress of the United

States is intent upon requiring the agencies of the

United States government . . . to objectively evalu-

ate all of their projects. regardless of how much money

has already been spent thereon and regardless of the

degree of completion of the work."*

16. Id. at A35.

17. Id. at A36.

18. Environmental Defense Fund, Inc. v. Corps of Engineers,

325 F. Supp. 749, 756 (E.D. Ark. 1971).

AM ALN 1

Irate

Pee en att ene

Brees: LUTTE OY

The court goes on to say:

The Court is of the opinion that the defendants may

approach the problem of the ongoing project differ-

ently from a new project, but the end product shouid

essentially be the same in both cases.”

In other words, the end result, whether for a new or an

ongoing project should be an objective evaluation of

environmental impact.

It is the belief of Petitioners that the lack of detail in

the EIS, the failure to adequately discuss alternatives or

noise pollution, and the failure to mention air pollution,

are sufficient to raise genuine issues of material fact which

warrant a full trial on the merits, rather than the grant-

ing of summary judgment for the Respondents.

2. The Federal Highway Administration and Depart-

ment of Transportation’s Delegation of the Prepa-

ration of the Switzer By-Pass EIS to the Kansas

State Highway Commission, in Violation of the Na-

tional Environmental Policy Act of 1969, Is Suffi-

cient to Raise a Genuine Issue of Material Fact,

Thereby Precluding the Granting of Summary

Judgment in Favor of the Respondents.

NEPA explicitly states that “all agencies of the Fed-

eral government shall . . . include in every recommenda-

tion or report on proposals for legislation and other major

Federal actions significantly affecting the quality of the

human environment. a detailed statement by the responsi-

ble official (about specified environmental problems).’”°

19. Id.

20. 42 U.S.C. Sec. 4332(2)(C) (1970).

The language of Congress is precise and explicit. The

federal agency “shall include . . . a detailed statement by

the responsible official.” (emphasis added) The “responsi-

ble official” is clearly the head of the federal agency mak-

ing the recommendation or report. Logic alone compels

this interpretation, since the purpose of the EIS is to aid

in the objective evaluation cf a project. If the preparation

of an EIS can lawfully be delegated to a state agency or

private organization which has a stake in seeing that the

project is approved. then there arises a high potential, if

not probability, that self-serving statements and assump-

tions will form the basis of the data presented in the EIS

for consideration by the agency decisionmaker.

This is precisely the view taken by the Second Circuit

in Greene Ccunty Planning Board v. Federal Power Com-

mission.“ There, the FPC had in essence delegated the

EIS for construction of high voltage power lines to the

Power Authority of the State of New York. The entire

project, exclusive of one segment under consideration in

the suit, was approximately 80‘: complete. Yet the Sec-

ond Circuit said:

(Section 4332(2)) is a mandate to consider environ-

mental values “at every distinctive and comprehensive

stage of the (agency's) process.” The primary and

nondelegable responsibility for fulfilling that function

lies with the Commission.

The Federal Power Commission has abdicated a sig-

nificant part of its responsibility by substituting the

statement of PASNY for its own. The Commission

appears to be content to collate the comments of other

federal agencies, its own staff and the intervenors and

(1973). 455 F.2d 412 (2d Cir. 1972), cert. denied, 409 U.S. 849

LEU ATES p 4

once again to act as an umpire. The danger of this

procedure, and one obvious shortcoming, is the poten-

tial, if not likelihood, that the applicant’s statement

will be based upon self-serving assumptions.** (em-

phasis added)

The court later notes that NEPA requires the agency’s own

EIS to accompany the project proposal through the exist-

ing agency review processes.~”

In an action to halt work on a 31-mile highway to re-

place a portion of U.S. Route 7 in Connecticut, the district

court ruled:

. . there is no more basis for the statute to be altered

by the regulation of the FHWA here than by the

F.P.C.’s interpretation of the guidelines of the Coun-

cil on Environmental Quality in Greene County.

. federal officials must prepare the final version of

the impact statement as required by the plain word-

ing of NEPA."

Similar results have been reached in both Wisconsin,”

and Vermont.*"

In the latter case, the court considered a factual situ-

ation almost identical to that at issue here. The Vermont

Highway Department had prepared the EIS under the

22. Id. at 420.

23. Id. at 422.

24. Committee to Stop Route 7 v. Volpe, 346 F. Supp. 731,

741 (D. Conn. 1972).

25. Northside Tenants’ Rights Coalition v. Volpe, 346 F. Supp.

244, 248 (E.D. Wis. 1972).

26. Conservation Society of Southern Vermont, Inc. v. Sec-

retary of Transportation, 362 F. Supp. 627 (D. Vt. 1973).

authority of PPM 90-1. The court heard testimony re-

garding the degree of cooperation, consultation and review

the Federal Highway Administration provided for the

preparation of the EIS, as well as testimony concerning

the Vermont Highway Department’s duty to follow its leg-

islative mandate with regard to highway construction in

general, and the project being challenged in particular.*

Based on Greene County and the evidence that the Ver-

mont Highway Department was as much of an interested

party as PASNY had been, the court ordered the Federal

Highway Administration to prepare its own EIS and is-

sued an injunction halting work on certain portions of the

project until the order had been complied with.

However, the decision of the Tenth Circuit in this

case, and a recent decision from the Ninth Circuit,** have

created divergent interpretations of NEPA on the ques-

tion of delegation.

Citing just a district court decision,*® and not discuss-

ing Greene County at all, the Tenth Circuit relied on a

record that contained only pleadings and affidavits, rather

than substantive testimony that could have been adduced

at a full plenary evidentiary hearing, to find that:

The SHC prepared the impact statement in consulta-

tion with state, federal and private agencies. The Sec-

retary of Transportation did not simply “rubber stamp”

the State’s work. He reviewed it and adopted it as

his own. This procedure is consistent with the goals

of NEPA.*"

7. Id. at 629-632.

28. Life of the Land v. Brinegar, ..... F.2d ...., 5 E.R.C.

1780 (9th Cir. 1973). ;

29. Finish Allatoona’s Interstate Right v. Volpe, 355 F. Supp.

933 (N.D. Ga. 1973).

30. Citizens Environmental Council v. Volpe,

5 E.R.C. 1989, 1990 (10th Cir. 1973).

. eater |

Beene <oppemneiecs Ts

The Ninth Circuit decision involved a runway project

at Honolulu International Airport, with the preparation

of the EIS being delegated by the Federal Aviation Agency

to “a private consulting firm which had a major and di-

rect contingent financial interest in the Reef Runway con-

struction.”*' The court there found that the record showed

active participation by the FAA in all phases of the EIS

preparation process.** The court then said:

The case law dealing with the delegation of EIS prep-

aration has heretofore been limited to federal agency

delegation to a state agency and has permitted such

delegation where the federal agency significantly par-

ticipated in the preparation of the EIS."

and distinguished Greene County and Conservation So-

ciety on the factual basis that the FAA had not abdicated a

significant part of its responsibilities to another organiza-

tion.**

Two district court decisions use the same rationale:

National Forest Preservation Group v. Volpe,’ and Iowa

Citizens for Environmental Quality v. Volpe.’ The lat-

ter court relies on a single sentence in a one page decision

from the Fifth Circuit’ to find:

Reliance on Greene County, in my opinion, is mis-

placed. That case involved a regulatory agency which

31. Life of the Land v. Brinegar, . jg. RR RF | co

1780, 1784 (9th Cir. 1973).

32. Id.

33. Id.

34. Id. at 1784-85.

35. 352 F. Supp. 123 (D. Mont. 1972).

Wee 5! F. Supp. - , 4 E.R.C. 1755 (S.D. Iowa 1972).

37. Pizitz, Inc. v. Volpe, 467 F.2d 208 (5th Cir. 1972).

allowed the applicant for a permit to prepare an en-

vironmental statement. The self-interest in such situ-

ations is obvious and the regulatory agency should be

required to make an independent study of its own as

to the environmental consequences.

The same reasoning does not apply to federal grant

in aid programs, specifically highway construction. A

well developed plan cf cooperation and heavy reii-

ance on state agencies has long existed. They have

for many years handled all steps necessary to con-

struct a highway. The interest of the state is cer-

tainly no more than that of the federal agency which

supplies 90°¢ of the financing.

The record is clear that FHWA did not merely rubber

stamp the state’s work.**

The Montana decision, also involving highway construc-

tion, found that:

There is no indication in this case that the EIS pre-

pared by the HA is self-serving. It should not be

presumed that states are not concerned with the en-

vironmental problems facing us all. . . . Inasmuch as

Section 102(2) (C) does not explicitly require that

a federal official prepare the EIS this court cannot

find as a matter of law that preparation of the EIS by

the HA is a violation of the spirit or the mandate of

the NEPA.”

It is obvious that the Montana and Connecticut district

court judges find different ‘plain’? meanings in the lan-

guage of NEPA.

38. Iowa Citizens for Environmental Quality v. Volpe, _.

F.Supp... . ,4E.R.C. 1755, 1759 (S.D. Iowa 1972).

39. National Forest Preservation Group v. Volpe, 352 F.

Supp. 123, 127 (D. Mont. 1972).

;

Pet AC MRO

——

Sree wigs

| erat etd

The delegation question thus resolves itself into two

fundamental issues:

1. Does NEPA permit delegation of EIS preparation

to state agencies or private organizations?

2. If so, does a failure to adequateiy participate in

the preparation and review of the EIS by the fed-

eral agency require the preparation of a new EIS?

The decision in Greene County, a decision which was

denied certiorari by this Court," can be viewed two ways.

It may be viewed broadly, as holding that NEPA flatly

prohibits delegation, or, more narrowly, that on the par-

ticular facts of that case, delegation was not permissible.

Those decisions which have permitted delegation have

generally not approached Greene County from the broad

viewpoint, but have distinguished it on the narrower,

factual basis, as indicated in the excerpts above. But even

assuming, for the sake of argument, that delegation is per-

missible, all the cases support the view that the adequacy

of that delegation, i.e, the degree of independent, as op-

posed to “rubber stamp” review, is a factual matter, one

to be decided on the basis of a full record. In the case at

issue here, it is difficult to see how the relationship of the

Kansas State Highway Commission to its legislative man-

date, or the scope and degree of Federal Highway Admin-

istration participation in the preparation of the Switzer

By-Pass EIS, can be validly determined solely on plead-

ings and affidavits, and not on evidence adduced at a full

trial on the merits. Summary judgment is singularly in-

appropriate in this case.

40. Supra note 21.

CONCLUSION

Nearly thirty years ago, this Court said in Sartor v.

Arkansas Natural Gas Corporation:

... Rule 56 authorizes summary judgment only where

the moving party is entitled to judgment as matter

of law, where it is quite clear what the truth is, that

no genuine issue remains for trial, and . . . the pur-

pose of the rule is not to cut litigants off from their

right of trial by jury if they really have issues to

try.

It is respectfully submitted that an affirmation of sum-

mary judgment in this case would be tantamount to cut-

ting off Petitioners from their right to a trial of these is-

sues: the adequacy of the Switzer By-Pass EIS and the

question of delegation. It is also submitted that a decision

from this Court, as ultimate interpreter of federal law, is

necessary to determine the parameters of NEPA, so that

there is only one national rule for the Federal Highway

Administration to follow in preparing an EIS for highway

construction, as required by the National Environmental

Policy Act of 1969.

For the reasons set forth herein, it is respectfully

urged that this Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit be

granted.

WILLIAM H. PICKETT

801 Traders National Bank Building

1125 Grand Avenue

Kansas City, Missouri

816-471-4115

Attorney for Petitioners

41. 321 U.S. 620, 627 (1944).

ere

OA Be TE lt OR A

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JULY TERM—1973

No. 73-1158

THE CITIZENS ENVIRONMENTAL COUNCIL,

ET AL.,

Plaintiffs-Appellants,

JOHN VOLPE, SECRETARY OF TRANSPORTA-

TION, ET AL.,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES CoURT

FOR THE DISTRICT OF KANSAS

(D.C. No. T-5057)

(Filed September 19, 1973)

William H. Pickett, Kansas City, Missouri, for Appel-

lants.

Terrence L. O’Brien, Department of Justice, Washing-

ton, D.C. (Robert J. Roth, United States Attorney, Topeka,

Kansas; Wallace H. Johnson and Roger K. Weatherby, As-

sistant Attorneys General, Topeka, Kansas; Edmund B.

Clark and George R. Hyde, Department of Justice, Wash-

ington, D.C., on the Brief), for Appellees.

Donna Munn Heller, State Highway Commission of

Kansas, Topeka, Kansas (James H. DeCoursey, Jr., and Paul

a il ci i kak ole aaa ela

rennrmnen re en cerns corer IMHO TT EI

eben natiscesine an.

W. Clark, State Highway Commission, on the Brief) for

Appellee State Highway Commission of Kansas.

Wright W. Crummett, Overland Park, Kansas, for In-

tervenor-Appellee City of Overland Park, Kansas.

F. Philip Kirwan, Kansas City, Missouri (Gordon R.

Gaebler and Blake A. Williamson, Kansas City, Missouri,

on the Brief: Of Counsel: Margolin and Kirwan, Kansas

City, Missouri and Williamson, Cubbison & Hardy, Kansas

City, Kansas), for Intervenor-Appellees J. A. Tobin Con-

struction Company.

Before LEWIS and BARRETT, Circuit Judges and

SMITH, District Judge.

BARRETT, Circuit Judge.

The Citizens Environmental Council (CEC) brought

this action to enjoin construction of a federally-assisted

highway by-pass. The District Court granted a summary

judgment in favor of the defendants-appellees. See The

Citizens Environmental Council v. Volpe, ........ F.Supp.

(D.Kan. 1973).

The State of Kansas plans to relocate 2.76 miles of

U. S. Route 69, the Switzer By-Pass, in the cities of Over-

land Park and Lenexa, Kansas, close to Kansas City, Kan-

sas and Kansas City. Missouri. The suit involves the

northern leg of the by-pass which will connect two inter-

state highways, I-35 and I-435. The by-pass plan orig-

inated from a traffic study in 1959. Its location was chosen

prior to urbanization of the area but with the expectation

of increased population in the future.

On April 2, 1959, pursuant to 23 U.S.C.A. § 128(a), the

Kansas State Highway Commission (SHC) conducted a

*For the Eastern District of Michigan, sitting by designation.

public hearing at Olathe, Kansas to discuss the proposed

by-pass. On August 26, 1959, the Federal Highway Ad-

ministration Division Engineer approved the by-pass. It

was also approved by the Regional Engineer. In 1962 the

Division Engineer approved SHC’s request to acquire the

right-of-way. Right-of-way acquisition occurred during

1962-1964 at a time when the area was still rural in char-

acter.

Congress enacted the National Environmental Policy

Act (NEPA) in 1969, effective January 1, 1970. Section 102

(2) of NEPA requires all federal agencies to submit an

environmental impact statement in each recommendation

for major federal actions significantly affecting the quality

of the human environment. 42 U.S.C.A. § 4332(2)(C).

The Council on Environmental Quality (CEQ) issued In-

terim Guidelines for preparation of the impact statement.

It also provided for a draft statement and a final statement.

Policy and Procedure Memorandum (PPM) 20-8 was issued

in January of 1969 providing for a corridor hearing and a

design hearing. Pursuant to PPM 20-8, the design hearing

provides an opportunity to present views on major design

features including social, economic, environmental and other

effects of alternative designs. The social, economic and

environmental considerations include the effects of aesthet-

ics, noise, air and water pollution, and displacement of

families and businesses.

On April 23, 1971 the design hearing was held in Over-

land Park, Kansas. The Final Environmental Impact

Statement (EIS) was filed with the CEQ on August 26,

1971. Comments by Ruckelshaus, Administrator of The En-

vironmental Protection Agency, were included.

The CEC contends that: (1) the EIS is inadequate;

(2) an additional hearing is necessary; and (3) the Court

erred in granting appellees’ motion for summary judgment.

or owe

a SGA AE NLA ON) PSEA PRI ORDO PHORUM IN TP IRON RE

VU,

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The CEC alleges that the impact statement is inade-

quate because it was prepared by the State Highway Com-

mission and because it does not detail alternative routes.

The statute provides that the EIS must include:

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot

be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of

man’s environment and the maintenance and en-

hancement of long-term productivity, and

(v) any irreversible and irretrievable commitments

of resources which would be involved in the pro-

posed action should it be implemented.

42 U.S.C.A. § 4332(2) (C).

The SHC prepared the impact statement in consulta-

tion with state, federal and private agencies. The Secre-

tary of Transportation did not simply “rubber stamp” the

State’s work. He reviewed it and adopted it as his own.

This procedure is consistent with the goals of NEPA. Fin-

ish Allatoona’s Interstate Right, Inc. v. Volpe, 355 F.Supp.

933 (N.D.Ga. 1973).

The EIS analyzed possible alternative routes, including

abandonment of the project, and concluded that they would

be in conflict with projected growth patterns. We may

certainly anticipate particular circumstances which require

an exhaustive, painstaking and extensive report of the en-

vironmental effects of alternatives in the EIS. Such, how-

ever, is not required in the case at bar. The discussion of

the environmental effects of alternatives in the EIS in this

case are sufficient to allow a reasoned choice. The EIS

prepared by the SHC and adopted by the FHWA fully

complies with NEPA requirements.

The CEC alleges that an additional corridor hearing

was necessary. The equivalent of a corridor hearing was

held in 1959. The land was acquired in the early 1960's.

A design hearing was held in 1971. The 1959 hearing met

the requirements of PPM 20-8. A new corridor hearing is

therefore not required. PPM 20-8 does not apply retro-

actively. Wildlife Preserves, Inc. v. Volpe, 443 F.2d 1273

(3rd Cir. 1971).

The CEC contends that there were many genuine is-

sues of material fact presented to the trial court. It relies

on several conclusory affidavits and a letter from the EPA

dated May 4, 1972, stating that there is a lack of data on

air pollution and noise levels.

Four affidavits were filed by the CEC to oppose the

summary judgment. They are generalized, conclusionary

and unsubstantiated. They are insufficient to create a

genuine factual dispute. Ashwell & Company v. Trans-

america Insurance Company, 407 F.2d 762 (7th Cir. 1969).

Rule 56(e), Fed.R.Civ.P., requires personalized affidavits to

successfully oppose a motion for summary judgment.

EPA’s comments filed on May 4, 1972 were “category

2” comments according to its procedure. They were merely

comments of inadequate information but not a condemna-

tion of the project itself. We observe also that these com-

ments were received eight months after the final EIS was

filed with the CEQ and six months after design approval

by FHWA. EPA had no comment during the period of re-

view following the design hearing. The EIS, in fact, dis-

closes an awareness of noise impact and notes the selec-

tion of a depressed main line design to muffle it and to

reduce air pollution in the corridor area.

The trial court did not err in granting a summary judg-

ment to the appellees. See The Citizens Environmental

Council v. Volpe, supra.

AFFIRMED.

Eye TN eT ee ee ee.

vere

Be al ee

APPENDIX B

MARCH TERM—APRIL 11, 1973

Before Honorable Delmas C. Hill, Honorable Robert H.

MeWillaims, and Honorable William E. Doyle, Cir-

cuit Judges

No. 73-1158

THE CITIZENS ENVIRONMENTAL COUNCIL, etc., et al.,

Plaintiffs-Appeilants,

Vv.

JOHN VOLPE, etc., et al.,

Defendants-Appellees,

OVERLAND PARK, KANSAS,

Intervenor-Defendant-Appellee,

J. A. TOBIN CONSTRUCTION CoO.,

et al.,

Intervenors-Defendants-Appellees.

This matter comes on for consideration of appellant’s

motion for injunction pending appeal which was set for

hearing before the Court on April 9, 1973 at 2:00 o’clock

pm.

The Court having heard the oral arguments of counsel

and having read the various motions, memoranda and briefs

filed in this cause, and being fully advised in the premises.

IT IS ORDERED that the motion for injunction pend-

ing appeal be, and the same hereby is, denied.

The Clerk shall certify a copy of this Order to the

Clerk of the United States District Court for the District

of Kansas at Topeka, Kansas.

/s/ Howard K. Phillips

Clerk

UNITED STATES COURT OF APPEALS

Tenth Circuit

Office of the Clerk

Denver, Colorado 80202

Howard K. Phillips Telephone

Clerk 303-297-3157

April 11, 1973

To: All Counsel

Re: No. 73-1158

Citizens Environmental Council, etc., et al.

v. John Volpe, etc., et al., and Intervenors

Gentlemen:

Enclosed is a certified copy of an Order entered today

in the captioned case.

Yours very truly,

/s/ Howard K. Phillips

Clerk

amc

Encl.

cc: Mr. William H. Pickett, 2010 Traders Bank Bldg.,

1125 Grand Ave., Kansas City, Missouri 64106

Mr. Lawrence R. Reno, 646 Metropolitan Bldg., Den-

ver, Colorado 80202

Messrs. F. Philip Kirwan and Gordon R. Gaebler,

1000 City Natl. Bank Bldg., Kansas City, Missouri

64106

Messrs. James H. DeCoursey, Jr. and Paul W. Clark;

Ms. Donna Munn Heller, State Highway Commis-

sion, State Office Bldg., Topeka, Kansas

PPPS Meg GI PRINT a

Berman: AMALIE RH WATE FOU NEY ONY AMG 2 PF

SRA ire Abas aK) dail peel

Bednicin: ts.

Mr. Wright W. Crummett, 8500 Santa Fe Drive, Over-

land Park, Kansas 66212

Messrs. Kent Frizzell, Asst. Atty. Genl., George R.

Hyde, Atty., and Terrence O’Brien, Atty., Depart-

ment of Justice, Lands & Natural Resources Divi-

sion, Washington, D.C. 20530

Mr. Roger K. Weatherby, ASst. U. S. ATty., P.O. Box

1537, Topeka, Kansas 66601

SO RL RES LSE GeO Rt eG SL AR Se a RO RSET

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

Civil Action No. T-5057

THE CITIZENS ENVIRONMENTAL COUNSEL, et al,

Plaintiffs,

vs.

JOHN A. VOLPE, Secretary of Transportation, et al,

Defendants.

Memorandum of Decision

(Filed January 3, 1973)

This action was instituted allegedly as a class action

by Complaint filed November 23, 1971, in which plaintiffs

seek a preliminary and permanent injunction restraining

the construction of a relocation of approximately 2.7 miles

of U.S. Route 69 in the cities of Overland Park and Lenexa

in Johnson County, Kansas. This portion of the reloca-

tion is referred to by the parties as the “North leg” of the

Switzer By-Pass. Also, mandamus is sought to compel

an officer of the United States to perform his duty. 28

U.S.C. $1361. The highway would be constructed on right-

of-way acquired for that purpose more than eight years

ago.

Neither party has requested the Court to determine

whether this action should be maintained as a class action

under Rule 23(c) (1). Perhaps such determination is

not necessary, and though the Court entertains some doubts

about the standing of some of the plaintiffs to maintain the

action, other individual plaintiffs do appear to have suffi-

cient interest for themselves and for those similarly sit-

uated, and having the right to make claims typical of those

ROR II TELL GIII ME SP BOLT MASAMI STTG

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of whom it is alleged are representative of a class, the Court

will, on its own initiative, determine that the action may

proceed on a class basis. Johnson v. City of Baton Rouge,

50 F.R.D. 295.

The Court further declares and finds that the repre-

sentation of the class in this case is adequate to determine

the issues involved and that further notice is not necessary

to protect the interests of any other person who might be

affected by the rulings or judgment in this case. Nor is

such notice required. Northern Natural Gas v. Grounds,

292 F.Supp. 619 (Kans. D.C.).

Plaintiffs apparently base their claims generally on

the following grounds:

1. No detailed environmental impact statement re-

quired by 42 U.S.C. §$4332(2)(c) has been prepared or

submitted.

2. The provisions of 42 U.S.C. $1857 h-7 requiring

review and comment by the Administrator of the Environ-

mental Protection Agency have not been complied with.

3. The federal defendants have not provided for

hearings required by 23 U.S.C. $128, and Policy and

Procedure Memo 20-8 (23 C.F.R. App. A).

4. No ruling has been made on whether or not the

project conforms to the needs of the locality as required by

23 U.S.C. §109.

5. The construction and use of the proposed highway

will violate plaintiffs’ rights under the Fifth Amendment,

and the Ninth Amendment.

6. The use of the land now acquired for highway

right-of-way violates 49 U.S.C. $1653(f) and 23 U.S.C.

$138, and the rules promulgated thereunder, because the

All

right-of-way is used for a public park and recreational

area.

A reading of the First Amended Complaint leaves

the impression that the matter of plaintiffs’ greatest con-

cern is the last mentioned claim. It appears to be the most

serious since it has received the greatest attention in the

pleadings.

Jurisdiction exists under 28 U.S.C. $1331(a), 28 U.S.C.

$1361, and 5 U.S.C. $$701-706.

Defendant John Volpe, Secretary of Transportation,

is the public official charged with implementing the Fed-

eral-Aid Highway Program. The other federal defendants

are: William D. Ruckelshaus, Administrator of the En-

vironmental Protection Agency; and Robert Morrissey,

Federal Highway Administration (F.H.W.A.) Division En-

gineer. The state defendants are: John D. Montgomery,

Director of Highways for the State Highway Commission

of Kansas; and Robert P. Hagen, Bob Kent, Henry Schwal-

ler, Karl A. Bruek, Gale Moss, and Louis Kampschroeder,

members of the State Highway Commission of Kansas.

Plaintiffs seek to halt the construction of a Federal-

Aid primary highway within the Kansas City metropolitan

area. The relief sought consists of an order temporarily

and permanently enjoining the defendants from: 1) letting

bids for the construction of the northern portion of the

Switzer By-Pass, 2) continuing to approve or finance the

northern portion of the Switzer By-Pass, and 3) releasing

funds for the project.

Additionally, plaintiffs pray that defendant Ruckels-

haus be ordered to make an independent investigation

as to whether the Environmental Impact Statement re-

quired by 42 U.S.C. §4332(2)(c) complies with the

N.E.P.A.

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Leave to intervene and to oppose the claims of plain-

tiffs was granted to the City of Overland Park and the

City of Lenexa.

Plaintiffs were permitted to file an amended complaint

on March 24, 1972, in which state officers were made

parties defendant. Answers were filed by defendant state

officers April 13, 1972, by defendant federal officers Feb-

ruary 23, 1972, and by intervenor City of Overland Park

May 12, 1972. This answer of Overland Park was adopted

by the City of Lenexa.

The Court has heard arguments and has received evi-

dence on October 25, 1972 and on November 29, 1972.

The state defendants have filed a motion for a pro-

tective order (Doc. 47), in which they assert that on Octo-

ber 12, 1972, the Kansas State Highway Commission

(K.S.H.C.) was served with 107 pages of interrogations

from plaintiffs and that this was done more than four

months after the case was at issue in violation of Local

Rule 14.'. The objection of these defendants is well taken

and the motion will be sustained. Plaintiffs have tendered

no excuse for permitting this case to languish for months

without any activity on their part, after the issues were

made up when defendants’ answer was filed April 13,

1972. Defendant state officials need not answer the 107

pages of interrogatories submitted.

Motions for summary judgment have been filed by

the defendant state officers, by defendant federal officers,

by intervenor City of Overland Park. Briefs have been

submitted by all parties and by the Sierra Club and John-

1. In all civil cases, discovery procedures provided for in

Federal Rules of Civil Procedure shall be completed by the

attorneys within four months after the case is at issue. Rules

< a of the United States District Court for the District

of Kansas.

ee y oe so een ae we

Al3

son County Community Junior College, with the Court’s

permission as amicus curiae.

Plaintiffs, on November 29, 1972, requested leave to

file within five days a proposed amendment to its first

amended complaint. The proposed amendment has been

presented. It seeks to add another cause of action to

the amended complaint by alleging that defendants have

failed to comply with the provisions of the Uniform Relo-

cation and Assistance and Real Property Acquisition Pol-

icies Act of 1970. Plaintiffs allege that “certain members”

of the class plaintiffs purport to represent are or will

be displaced persons under the meaning of the Act (42

U.S.C. $4601, et seq.). To support this proposed amend-

ment are affidavits of four persons who speculate that

their homes will “supposedly” be taken by the construction

of the Switzer By-Pass. Defendants oppose the motion

to amend. The motion to amend will be denied, First,

because the claims of individual homeowners on this point

do not present issues of law or fact common to the named

plaintiffs who purport to represent a class and, Second,

because the claims are speculative and consideration of

individual claims will further delay the final determination

of the case and may not properly be considered in this

class action.

The Court took under advisement the motions for

summary judgment and has reviewed the evidence, the

briefs, and has considered the background and the sur-

rounding circumstances relating to the issues in the case.

This Court has stated the rule to be followed in determin-

ing a motion for summary judgment in the case of Machin-

ery Center v. Anchor Ins. Co., 434 F.2d 1, 6. The Court

may pierce the pleadings and determine from admissions

and affidavits and evidence in the record whether material

issues of fact actually exist. If they do not, summary

judgment is appropriate. Again, under Rule 56(d), the

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Court may ascertain what material facts exist without

controversy and what facts are actually and in good faith

controverted, and shall make an order specifying the facts

without substantial controversy. See Baca Land Co. v.

New Mezico, 384 F.2d 701.

Plaintiffs argue that there are material facts in dis-

pute which may not be resolved by a motion for summary

judgment. Plaintiffs concede that a north-south trafficway

is needed in the area but urge that the established project

should be reconsidered. They also say that they do not

complain about all the project but only the northern por-

tion of it. Plaintiffs insist that a fact question remains

as to whether the land acquired for use as a right-of-

way is used as a park, whether an environmental impact

statement should be required from defendant Ruckelshaus,

whether there has been an abuse of discretion by the

defendants, and whether the Court should require compli-

ance with environmental impact determinations.

This is a proceeding in which equitable relief is sought.

The individual plaintiffs who now complain about an in-

vasion of their rights came into the area several years

after the project was laid out and the right-of-way ac-

quired. They and the developers of the land west of

the By-Pass cannot be heard to say they were not aware

of the existence of the contemplated By-Pass when they

came into the community. Unless other considerations

require this Court to grant relief, it should be said that

the individual plaintiffs by coming to a laid-out highway

with full knowledge of its existence and eventual construc-

tion have no rights in equity to be protected. One may

not voluntarily come to a situation, already established,

with knowledge of its existence and purpose, and later

complain of its use to his inconvenience or detriment as

long as the use is not unlawful.

ee eee ea!

Al5

Because of the several attacks leveled at this highway

project by plaintiffs, an outline of facts disclosed by the

record before the Court is appropriate.

The northern portion of the Switzer By-Pass is the

relocation of approximately 2.76 miles of U.S. Route 69

in the cities of Overland Park, and Lenexa, Johnson

County, Kansas. The project begins at the north edge

of existing I-435 and the Switzer Road Interchange and

extends north and west to existing I-35; Affidavit of Robert

W. Morrissey, par. 6.

The proposed Switzer By-Pass originated in a compre-

hensive Kansas City Metropolitan Area Origin and Destina-

tion Survey prepared in 1959 by Wilbur Smith and Asso-

ciates for the State Highway Commission of Kansas and

Missouri in cooperation with the United States Department

of Commerce, Bureau of Public Roads; Affidavit of Mor-

rissey, par. 6; Ex. A.

This study considered a number of factors. These

were: (1) Traffic conditions in the Kansas City Metro-

politan Area in 1957; (2) Origin and Destination Survey;

(3) Characteristics of travel in 1957; (4) Future travel

in the Kansas City Metropolitan Area in 1970-1980; (5)

Traffic services of the proposed expressway system; and

(6) Traffic volumes—capacity implications ( See Ex. A).

As part of this study, population trends, population

growth, passenger car registration and ownership, and la-

bor force-employment of Johnson County, Kansas, were

specifically considered.

The Switzer By-Pass was included in both the sug-

gested “A” and “B” system of Expressways; Ex. A. The

corridor location, resulting from the planning study is de-

picted extensively in this survey. The by-pass is specif-

ically discussed in relation to I-435, I-35, and as the reloca-

tion of U.S. 69; Ex. A, pp. 141, 142, 143.

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The corridor location was determined prior to the

urbanization of this part of the Kansas City Metropolitan

Area, and selected with the expectation that the project

area would become increasingly populated in the future,

and eventually become densely populated; Affidavit of

Morrissey, par. 7; see generally Ex. A.

On April 2, 1959, pursuant to 23 U.S.C. $128(a) the

Kansas State Highway Commission conducted a public

hearing at Olathe, Kansas, to discuss the proposed By-

Pass. The general hearing requirement of 23 U.S.C.

$128(a) was specifically implemented in F.H.W.A. Policy

and Procedure Memorandum (PPM) 20-8 issued August

10, 1956; Ex. B. This PPM was supplemented by PPM

20-8 issued June 16, 1959. PPM 20-8, issued January 14,

1969 (Ex. C), superseded the earlier PPM’s. The hearing

informed the public of the genera! location and alternate

routes, and provided an opportunity for comment on the

proposal. Design features were discussed, an evaluation

of economic aspects conducted, and advice given to land-

owners who might be in the right-of-way; see generally,

Ex, D; and Affidavit of Morrissey, par. 18(b).

The hearing record includes many examples of the

knowledge by State Highway officials that the area in

Johnson County through which the by-pass would travel

was a fast growing area, developing, or becoming built

up, and that subdivisions would develop in the area; Ex.

D, 8-9, 13, and 19.

In accordance with 23 U.S.C. 128(a), the State High-

way Commisson, on May 20, 1959, transmitted a copy of

the transcript of the public hearing (Ex. D) to the Division

Engineer, F.H.W.A.

Right-of-way acquisition by the State occurred during

1962-1964. Studies of the area at this time indicated the

potential development of commercial and residence sites

Al7

and eventually a dense population; Affidavit of Morrissey,

pars. 7 & 8; Ex. A. Right-of-way acquisition prior to

the development of the area was important in reducing

acquisition costs: Affidavit of Morrissey, pars. 7 & 8. The

land acquired has remained underdeveloped; Affidavit of

Morrissey, pars. 11 & 12.

The State Highway Commission adopted a resolution

on August 12, 1959, to request the Bureau of Public Roads

add the by-pass route to the Federal-Aid Primary System.

On August 19, 1959, this resolution was transmitted to

the Division Engineer. That same date, the Division En-

gineer forwarded this request to the Regional Engineer.

In a memorandum to the Division Engineer, dated August

24, 1959, the Regional Engineer stated that:

“(T]his short length appears to be a desirable

addition to the Primary System, and it will perform

a definite service between Interstate Routes 35 and

435.”

The Division Engineer notified the State Highway

Commission on August 26, 1959, that the proposed addition

was approved for addition in the Federal-Aid primary

system; see Ex. E-1 through E-6.

On March 5, 1962, the Division Engineer approved

the State Highway Commission’s request to acquire the

necessary right-of-way; Ex. F. Later, on July 2, 1964,

the Highway Commission certified that the necessary right-

of-way had been acquired in accordance with all applicable

federal laws and regulations; Ex. G.

Subsequent to the foregoing approvals, Congress

passed the National Environmental Policy Act of 1969

(N.E.P.A.), 83 Stat. 852, 42 U.S.C. 4321, et seq. The ef-

fective date of this Act was January 1, 1970.

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Section 102(2) of that Act provided that all agencies

of the Federal Government shall “. . . include in every

recommendation or report on proposals for . . . major

Federal actions significantly affecting the quality of the

human environment, a detailed statement .. .” discuss-

ing the environmental effect of the proposed action;

4332 (2) (c).

The Council on Environmental Quality issued Interim

Guidelines for preparation of the 102(2) (c) Environmental

Impact Statement on April 30, 1970; 35 F.R. 7390: Ex.

H. These Guidelines provided in paragraph 10(b) for a

two step procedure involving the circulation of a “draft”

statement assessing in detail the potential environmental

effect of the proposed project. The Final Guidelines issued

on April 23, 1971, 36 F.R. 7724 (Ex. I), do not vary from

the two step procedure suggested by the Interim Guide-

lines.

To implement the N.E.P.A. and the C.E.Q. Guidelines,

the Department of Transportation issued D.O.T. Order No.

5610.1 on November 10, 1970; Ex. J. The suggested two

statement procedure was contained therein; Ex. J, par.

7d & 7h. In line with this directive, the F.H.W.A., on

November 30, 1970, issued a draft Instructional Memo-

randum titled Interim Guidelines for Implementation

of Section 102(2)(c) of the National Environmental Policy

Act of 1969; Ex. K. This I.M. required the preparation

of an Environmental Impact Statement for projects re-

ceiving design approval after February 1, 1971; Ex. K,

par. 4. Subsequently, on August 27, 1971, PPM 90-1 super-

seded the Instructional Memorandum with respect to

N.E.P.A. implementation; Ex. L. Accordingly, on March

4, 1971, a draft statement was issued soliciting comments

from appropriate federal agencies on the environmental

effects of the proposed project; Ex. M. The Environmental

LE TEED < ~ 2S ese oe ere A ee

Alg

Protection Agency was requested to comment; Ex. M. The

comment was issued on April 6, 1971; Ex. M.

On March 31, 1971, the Metropolitan Planning Com-

mission, Kansas City Region, reported to the State Highway

Commission that the proposed highway was in agreement

with the Freeway and Expressway Plan adopted by the

Planning Commission; Ex. N. Copies of the Freeway and

Expressway Plan adopted by the Planning Commission

and the Highway Ccmmission of both Kansas and Missouri

were furnished F.H.W.A. on April 16, 1971; Ex. O. This

plan contained the Switzer By-Pass Project. The Kansas

City Region Regional Plan, prepared and accepted by the

Planning Commission lists the Switzer By-Pass among

those projects considered to be “first or top priority” and

a “committed” project; Ex. P.

The amended PPM 20-8, Ex. C issued January 14,

1969, required two public hearings, a corridor hearing and

a design hearing: see par. 6a. As the Highway Commission

had previously conducted a corridor hearing on August

2, 1959, only a design public hearing was held thereafter.

The design hearing, considering the specific location,

major design features, relocation, and economic, social,

and environmental effects of the proposed highway, was

held at Overland Park, Kansas, on April 23, 1971; Ex.

Q. A transcript of the hearing was forwarded to the

Federal Highway Administration.

The Final Environmental Impact Statement, with at-

tached comments (Ex. R), was filed with the Council

on Environmental Quality on August 18, 1971, and accepted

by the Federal Highway Administration on August 26,

1971; Ex. S. The comment of Defendant William Ruckels-

haus, Administrator, Environmental Protection Agency,

dated April 6, 1971, was included in the attachments to

that statement.

eee titties Nene ese kl AOE ay ng a a

A20

On October 29, 1971, the State issued a Study Report

For Design Approval, Ex. T. This report analyzed design

alternates and provided design recommendations for each

of the major design features of the proposed project. The

report at page 1 stated:

“The anticipated social, econcmic, and environmental

effects are reflected by the Final Environmental State-

ment. This Statement shows that the goals and objec-

tives of the urban plan as generally adopted by the

overall community are compatible with this recom-

mended design.”

Design approval for the project and authorization to

complete plans, specifications and estimates were given

on November 16, 1971; Ex. U.

Environmental considerations were a significant factor

bearing upon the location and final design features of

the project; Affidavit of Morrissey, pars. 10-16 Exs. R

& T.

William Ruckelshaus, Administrator, Environmental

Protection Agency, issued a comment on the Final Environ-

mental Impact Statement on May 4, 1972; Ex. V.

Plaintiffs filed this suit on November 23, 1971, seek-

ing to enjoin construction of the proposed Switzer By-

Pass.

Stripped of a great deal of verbiage, the amended

complaint alleges, in substance, that the Environmental

Impact Statement (E.LS.) fails to comply with the require-

ments of 42 U.S.C. $$4431 and 4432, because the conclusions

therein stated do not constitute independent determinations

by the Department of Transportation (D.O.T.), but merely

reflect the opinions of defendants John B. Montgomery

and K.S.H.C., two proponents of the project. The further

contention is that defendant Ruckelshaus, Administrator

A SER AN ESD ER OEE TDR,

A21

of the Environmental Protective Agency (E.P.A.) did not

review the statement and comment in writing on the en-

vironmental impact of the matter to which 42 U.S.C. $4332

that he also failed to make an independent investigation

and determination of the environmental impact of the proj-

ect and that his failure to so act was arbitrary and capri-

cious, and prevented the reference of the project to the

Council on Environmental Quality for further review. It

is also alleged that requirements of the acts referred to

apply to highway projects such as the northern leg of

Switzer By-Pass.

The record discloses that E.I.S. was prepared by the

K.S.H.C. in cooperation with the F.H.W.A., the D.O.T. and

other agencies of the federal government. Highway con-

struction programs are carried out in most instances, cer-

tainly in this one, and are required to be carried out

by the joint development and execution of highway pro-

grams. 25 U.S.C. $101, et seq. The N.E.P.A. expressly

provides that the Act shall not affect statutory obligations

of any agency to coordinate or consult with any other

federal or state agency. The preparation of E.I.S. by the

K.S.H.C. in cooperation and consultation with F.H.W.A.,

is consistent with the intent of Congress. When considera-

tion is given to the procedures required to plan and estab-

lish a highway project and then apply for federal aid

to pay for it, the necessity for an early E.I.S. statement

by the K.S.H.C. at an early stage of the proceeding is

apparent.

Both the C.E.Q. Interim Guidelines, issued April 30,

1970, 35 F.R. 7390 (Ex. H), and the Final Guidelines, issued

April 23, 1971, 36 F.R. 7724 (Ex. I), permits K.S.H.C. to

prepare the Environmental Impact Statement subject to

review and acceptance by F.H.W.A. officials. The only

LYRIS MNCL ID OY

‘

A22

requirement that a draft Environmental Impact Statement

be circulated for comment is found in Section 7 of the

C.E.Q.’s Guidelines:

“A Federal agency considering an action requiring an

environmental statement, on the basis of (1) a draft

environmental statement for which it take responsibil-

ity or (2) comparable information followed by a hear-

ing subject to the provisions of the Administrative Pro-

cedure Act, should consult with, and obtain the com-

ment on the environmental impact of the action of,

Federal agencies with jurisdiction by law or special

expertise with respect to any environmental impact

involved.”

The draft E.I.S., therefore, is in essence an adminis-

tratively created device for facilitating consultation with

appropriate agencies. Nothing in the guidelines requires

that the draft statement be prepared in the first instance

by the federal agency responsible for the proposed action.

The only requirement set forth in C.E.Q.’s Guidelines is that

the federal agency “take responsibility” for the draft state-

ment which is circulated.

Moreover, Section 2 of the final Guidelines provide:

“2. Policy. As early as possible and in all cases pri-

or to agency decision concerning major action or rec-

ommendation or a favorable report or legislation that

significantly affects the environment, Federal agencies

will, in consultation with other appropriate Federal,

State and local agencies, assess in detail the potential

environment impact in order that adverse effects are

avoided... .”

The Interim Guidelines, Section 2, contained substan-

tially similar wording. Thus, both the Interim and final

Guidelines emphasized that state and local government

units were to be drawn into the F.H.W.A. administrative

~ oe 7 2 NS Pe hee 2G DL we oe en OS otek ee eae |

A23 |

process so as to assess in detail the environmental impact

of the proposed action to be taken. This consultation to

“assess in detail” by state and federal agencies acquires

added significance when considered in the light of the

unique F.H.W.A.—state relationship, 23 U.S.C. §101, et seq.

Section 3(d) of the final Guidelines stated:

‘. . . It is imperative that existing mechanisms for

obtaining views of Federal, State, and local agencies

on proposed Federal actions be utilized to the extent

practicable in dealing with environmental matters.”

The Interim Guidelines contained similar wording in Sec-

tion 2.

Both the F.H.W.A. draft Instructional Memorandum

titled “Interim Guidelines for Implementation of Section 102

(2) (c) of the National Environmental Policy Act of 1969”

(Ex. K), issued November 24, 1970, and PPM 90-1 (Ex. L,

par. 6b & i), issued August 24, 1971, which superseded the

I.M. with respect to N.E.P.A. implementation, required

that the State Highway Commission prepare the draft and

final Environmental Impact Statements.

It appears from the public interpretations made by

the Chairman of the Council on Environmental Quality

(C.E.Q.) that the agency has likewise accepted this pro-

cedure. (See testimony of Russell E. Train, pp. 261 and

263, Ex. X, “Red tape—Delays and Excessive Paper Work

in Administration of the Public Works Program.’’)

When considered in the light of the provisions and re-

quirements of the Federal-Aid Highway Act, the interpre-

tations by D.O.T. and F.H.W.A. of the N.E.P.A. and C.E.Q.

Guidelines countenancing state participation in preparation

of E.I.S., the procedures in this case do not appear clearly

erroneous and should be accepted as reasonable and prac-

tical, if not, in fact, necessary, if any substantial develop-

ment of transportation facilities are to be carried on in this

country.

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A24

Plaintiffs predominate purpose in maintaining this ac-

tion, judging by the emphasis placed on this issue by them

in the record, is to somehow require the use of a strip of

land, acquired several years ago for highway purposes, for

a public park and recreational area. They base their claim

in this regard on the provisions of 49 U.S.C. $1653(f) and

23 U.S.C. $138, and regulations promulgated thereunder.

Neither of the statutes apply to the situation before the

Court in this case. The land acquired for highway right-

of-way was not taken from publicly owned land used as a

public park, recreation area, or wildlife and waterfowl ref-

uge of national, state or local significance, as determined

by federal, state or local officials having jurisdiction there-

of. The right-of-way in this case, as revealed by the rec-

ord, was acquired from private owners of many tracts of

land.

Also, it appears that the City of Overland Park,

through which the largest segment of the right-of-way ex-

ists, has a City Park Department and has established a

City Park System as it is authorized todo. The undisputed

evidence is that the By-Pass right-of-way was never in-

cluded in the City Park System, was never intended to be

and that other and more practical and appropriate recrea-

tional facilities are being constructed in the neighborhood

for the benefit of those who live thereabout; Affidavit of

Larry Flatt, Doc. 51.

Since the right-of-way has never been designated for

use as a public park or recreational area, the laws relied

upon by plaintiff do not apply and their claim may not be

sustained. Penn. Environmental Council v. Bartlett, 454

F.2d 613 (3 Cir.).

It ought to be observed that the record discloses the

careful study and planning for this By-Pass Project by a

number of city, state, federal and metropolitan agencies.

Public hearings and discussions were held over a period of

fourteen years to consider the need, the advisability and

the feasibility of this By-Pass. The officers of the cities,

the county, the state, the federal government have studied

and approved its establishment. A great deal of public

money has been appropriated and spent to establish the

By-Pass which all the public officials charged with the

responsibility of doing so have approved. A Community

College. accommodating several thousand students in the

area, was located and built with the construction of this

By-Pass a major factor in arriving at a choice of location.

Zoning ordinances and programs of community develop-

ment have been established relying upon the eventual con-

struction of this By-Pass to facilitate the movement of traf-

fic and accommodate the great majority of people whose

interests and welfare are more than equal to the class al-

legedly represented by plaintiffs. To enjoin the construc-

tion of this highway after twelve years of effort to obtain

it because a relatively few persons wish it to be used as a

recreational area, is neither reasonable, practical or equi-

table. There must come a time, after the passage of years,

when a needed public improvement, such as this one, ought

to be built.

After considering all the numerous contentions of plain-

tiffs, the Court, after threading its way through the pro-

visions of several legislative acts and regulations adopted

thereunder, all of which, it should be assumed, were pur-

posely enacted or promulgated to be reasonably and sen-

sibly applied,* must find and determine the environmental

impact statement required by 42 U.S.C. $4332(2)(c) has

been prepared and submitted by F.H.W.A., that the pro-

visions of 42 U.S.C. $1857 requiring review and comment

by defendant Ruckelshaus, as administrator of E.P.A.. have

observed to the extent required by the statute as its ap-

“a See National Forest Group v. Volpe, D.C.Mont., Dec. 11,

ie.

;

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A26

plication is interpreted and applied by the responsible ad-

ministrators of the Council on Environmental Quality.

The Court further finds and determines that the record

before it shows conclusively that hearings required by 23

U.S.C. $128 and Policy Procedure Memo 20-8, have been

provided and that a determination has been made that the

project conforms to the needs of the locality as required

by 23 U.S.C. $109.

The Court must also conclude that no constitutional

right of plaintiffs have been violated. They came to a proj-

ect already announced and for which right-of-way had

been acquired. Having done so, none of their constitutional

rights could be violated.

The contention that the land acquired for a highway

right-of-way should be used as a public park and recre-

ational area is without merit.

After careful scrutiny of the voluminous record before

it, and after considering the circumstances and interests

of all the parties, the delay by plaintiffs in prosecuting their

case, and the commonsense application by the administra-

tors of the several governmental agencies in carrying out

the mandates of Congress, this Court concludes that the

pleadings in this case should be pierced and the actual is-

sues determined. In doing so, it is now found that no ma-

terial issue of fact exists and that the case is ripe for dis-

position by summary judgment.

IT IS THEREFORE THE RULING AND ORDER AND

JUDGMENT of this Court that the motions of the defend-

ants and the intervenors for summary judgment, be, and

they are, sustained, and plaintiffs’ action is dismissed.

Dated at Topeka, Kansas, this 3rd day of January,

1973.

/s/ George Templar

United States District Judge

A27

APPENDIX D

The National Environmental Policy Act

PURPOSE

Sec. 2. The purposes of this Act are: To declare

a national policy which will encourage productive and en-

joyable harmony between man and his environment; to pro-

mote efforts which will prevent or eliminate damage to the

environment and biosphere and stimulate the health and

welfare of man; to enrich the understanding of the ecologi-

cal systems and natural resources important to the Nation;

and to establish a Council on Environmental Quality.

TITLE I

DECLARATION OF NATIONAL

ENVIRONMENTAL POLICY

Sec. 10i. (a) The Congress, recognizing the pro-

found impact of man’s activity on the interrelations of all

components cf the natural environment, particularly the

profound influences of population growth, high-density

urbanization, industrial expansion, resource exploitation,

and new and expanding technological advances and recog-

nizing further the critical importance of restoring and main-

taining environmental quality to the overall welfare and

development of man, declares that it is the continuing

policy of the Federal Gcvernment, in cooperation with

State and local governments, and other concerned public

and private organizations, to use all practicable means and

measures, including financial and technical assistance, in a

manner calculated to foster and promote the general wel-

fare, to create and maintain conditions under which man

and nature can exist in productive harmony, and fulfill the

social, economic, and other requirements of present and

future generations of Americans.

PPMP IL IT EM Par

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A28

(b) In order to carry out the policy set forth in this

Act, it is the continuing responsibility of the Federal Gov-

ernment to use all practicable means, consistent with other

essential considerations of national policy, to improve and

coordinate Federal plans, functions, programs, and re-

sources to the end that the Nation may—

(1) fulfill the responsibilities of each generation

as trustee of the environment for succeeding genera-

tions;

(2) assure for all Americans safe, healthful,

productive, and esthetically and culturally pleasing

surroundings;

(3) attain the widest range of beneficial uses of

the environment without degradation, risk to health

or safety, or other undesirable and unintended conse-

quences;

(4) preserve important historic, cultural, and

natural aspects of our national heritage, and main-

tain, wherever possible, an environment which sup-

ports diversity and variety of individual choice;

(5) achieve a balance between population and

resource use which will permit high standards of living

and a wide sharing of life’s amenities; and

(6) enhance the quality of renewable resources

and approach the maximum attainable recycling of

depletable resources.

enjoy a healthful environment and that each person has a

responsibility to contribute to the preservation and enhance-

ment of the environment.

Sec. 102. The Congress authorizes and directs that,

to the fullest extent possible: (1) the policies, regulations,

ee eee ee 2D ee

A29

and public laws of the United States shall be interpreted

and administered in accordance with the policies set forth

in this Act, and (2) all agencies of the Federal Govern-

ment shall—

(A) utilize a systematic, interdisciplinary ap-

proach which will insure the integrated use of the

natural and social sciences and the environmental de-

sign arts in planning and in decisionmaking which

may have an impact on man’s environment;

(B) identify and develop methods and proce-

dures, in consultation with the Council on Environ-

mental Quality established by title II of this Act,

which will insure that presently unquantified environ-

mental amenities and values may be given appropriate

consideration in decisionmaking along with economic

and technical considerations;

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 proposal be im-

plemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term

uses of man’s environment and the maintenance and

enhancement of long-term productivity, and

(v) any irreversible and irretrievable commit-

ments of resources which would be involved in the

proposed action should it be implemented.

FD AE PETRY he

rae

A30

Prior to making any detailed statement, the responsi-

ble Federal official shall consult with and obtain the

comments of any Federal agency which has jurisdic-

tion by law or special expertise with respect to any

environmental impact involved. Copies of such state-

ment and the comments and views of the appropriate

Federal, State, and local agencies, which are authorized

to develop and enforce environmental standards, shall

be made available to the President, the Council on

Environmental Quality and to the public as provided

by section 552 of title 5, United States Code, and

shall accompany the proposal through the existing

agency review processes;

(D) study, develop, and describe appropriate al-

ternatives to recommended courses of action in any

proposal which involves unresolved conflicts concern-

ing alternative uses of available resources;

(E) recognize the worldwide and long-range

character of environmental problems and, where con-

sistent with the foreign policy of the United States,

lend appropriate support to initiatives, resolutions, and

programs designed to maximize international coopera-

tion in anticipating and preventing a decline in the

quality of mankind’s world environment;

(F) make available to States, counties, munici-

palities, institutions, and individuals, advice and in-

formation useful in restoring, maintaining, and enhanc-

ing the quality of the environment;

(G) initiate and utilize ecological information in

the planning and development of resource-oriented

projects; and

(H) assist the Council on Environmental Quality

established by title II of this Act.

APPENDIX E

DEPARTMENT OF TRANSPORTATION

FEDERAL HIGHWAY ADMINISTRATION

PREPARED BY THE STATE HIGHWAY

COMMISSION OF KANSAS

FINAL ;

ENVIRONMENTAL STATEMENT

ro PANT TINMD Ta eT

FOR

US-69 (SWITZER ROAD) IN JOHNSON COUNTY,

KANSAS

PURSUANT TO SECTION 102(2) (C)

P. L. 91-190

Wan

RE GY Pe er nee me

KANSAS HIGHWAY COMMISSION

FINAL ENVIRONMENTAL STATEMENT

69-46 U-083-3(22) Parts I and II

U.S. 69 Alternate (Switzer Road)

Johnson County, Kansas

SECTION I. Project Description

The project is located within the cities of Overland

Park and Lenexa, Kansas. It begins at an existing inter-

change of Interstate I-435 and US-69 (Switzer Road) and

extends 2.760 miles north and northwesterly to a proposed

directional interchange connection with Interstate I-35 im-

mediately north of 87th Street.

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A32

The purpose of the facility is to complete a prolonged

and demanded improvement. In response to local requests,

the original rights of way were purchased in 1964. Con-

firmation of the need is reflected in the anticipated average

daily traffic (ADT) for the design year 1990 which num-

bers 51,602 vehicles per day.

The proposed project design envisions a four-lane di-

vided highway with depressed median. The design in-

cludes concrete pavement with stabilized shoulders for the

project proper; detours and frontage roads are to be con-

structed with asphaltic concrete. Full control of access

utilizing chain link fencing is included in the design to

afford maximum safety. At cross street locations, the

structures will include sidewalks for pedestrian traffic.

The project will be constructed within existing right of

way. To complete the design of the interchange locations

(103rd, 95th, and 87th Streets) to current safety standards,

additional rights of way will, however, be required at

these points.

The project location is further identified by the area

map, Figure 1 and the aerial mosaic, Figure II.

SECTION 2. The Probable Impact of the Proposed Project

on the Environment

The area is entirely urban in nature. Most of the

development has occurred since the original purchase of

rights of way in 1964 and has formed in anticipation of

the project. Controlling governmental units have regu-

lated such development to provide a planned and controlled

growth centered around the improvement. Areas not now

developed are or will, with the completion of the project,

follow the urban, industrial, and commercial patterns

existent within the project’s area of influence.

A33

There are no conditions existent which address the

interests of fish and wildlife. The fact that the project

has been protected from the surrounding city growth may

have attracted occasional wildlife in the form of rabbits

and prairie fowl.

Railroad facilities are not involved.

There are no known mineral deposits within the cor-

ridor and the expansion potential of such resources is

mute.

The project has been reviewed by State Historical

Society archeologists and found to be void of any indica-

tions of such sites. There are no known historical areas

in the area of influence.

There are no lands as defined under section 4(f) of

the Department of Transportation Act as related to public

parks, public recreational areas, wildlife refuge and histori-

cal sites.

The project is uniquely fitted to local traffic patterns.

Interchanges at 103rd Street, 95th Street and at 87th Street

will require improved geometrics to carry increased traffic

assignments. The improvement to local and long distance

travel mobility of the area has been recognized for a dec-

ade. Traffic demands have increased several times beyond

predictions made in 1964. The project will create a most

favorable environmental impact upon traffic quality and

its associated social and economic opportunity and will

compliment the existing and rapidly expanding residential-

commercial propagation of the area.

With the depression of the main line traffic lanes,

an opportunity to provide continuity of existing local

streets is afforded.

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A34

The inclusion of early seeding and erosion control

measures along with bluegrass sod and placing of Select

Soil will establish initial and lasting pollution controls.

The proposed roadway will not significantly alter the

existing character of the area. The requirement for addi-

tional right of way at interchanges will force the relocation

of five families living in three duplex rental structures

and two families whose properties will be required. The

duplex owner also uses one apartment as an office. Ade-

quate replacement housing is available within a reasonable

distance. Local parallel streets will be rerouted. Circula-

tion will not be greatly affected at 103rd, 95th and 87th

Streets.

A carefully planned approach to the location and to

the design of this project has been made in close coopera-

tion with local, state and federal agencies. The impact

of the project upon the area environments, coupled with

the impact of projects being developed by others, has multi-

plied the favorable results which will be obtained.

Project 69-46 U-083-3(20) south of I-435 is presently

scheduled for construction at approximately the same time

as this project. Therefore, the continuity of the north-

south traffic using this portion of US-69 will be established.

The existing Metcalf Avenue portion of US-69 is lo-

cated two miles east of Switzer Road. The construction

of the Switzer Road location (this project) will reduce

traffic on Metcalf Avenue. Therefore, increased safety

at the existing intersections and entrances, along with de-

creased ambient noise, can be expected.

SECTION 3. Probable Adverse Environmental Effects

Which Cannot be Avoided

The displacement of three duplex dwellings and two

houses are unavoidable effects precipitated by the project.

— oe Sa a TR EEE

A35

A use of vehicular traffic would also increase the noise

level; however, an effort to reduce such effects was made

by selecting a depressed main line design which appre-

ciably muffles ambient noise levels.

Elementary school districts are not divided by the

project. Although high school and junior high school dis-

tricts were organized after the purchase of the right of

way for this project, it does form a division of such dis-

tricts. Harm to pedestrian traffic is minimized by provid-

ing sidewalks on cross street structures.

SECTION 4. Alternate Routes and Designs

Alternate routes, after years of development contem-

plating the construction of the project on existent rights

of way, are in conflict with existent and projected growth

patterns. The project is in complete compliance with the

transportation plan developed by the Kansas City Area

Metropolitan Planning Commission. To retain present

routing would result in local traffic stagnation and the

overloading of portions of I-435 and I-35.

Any plan which would not use the existent right of

way would be inconsistent with commitments and planning

which has been made in cooperation with local agencies,

governmental units and the community.

Design proposals have been generated by the progres-

sive analysis of alternate designs at the three proposed

interchange locations (103rd, 95th and 87th Streets). The

interchange designs are based on routing simplicity com-

bined with adequate traffic services for the design year

of 1990. Future internal expansion can be accomplished

as the need may arise.

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A36

SECTION 5. The Relationship Between Local Short-Term

Uses of Man’s Environment and the Main-

tenance and Enhancement of Long-Term

Productivity

The proposed project is compatible with the antici-

pated social and environmental changes of this area of

Overland Park and Lenexa and enhances its potential as

a long-term productive facility.

A safer and more effective use of the present traffic

facilities will be created by the addition of this improve-

ment.

This facility will offer the potential for the accelera-

tion of planned and future development of the adjacent

area.

SECTION 6. Irreversible and Irretrievable Commitments

of Resources

The many elements which will go into this project

cannot be classified as irreversible or irretrievable commit-

ments of resources. If the facility is no longer needed as

a transportation network or if a greater need arises for the

area occupied by the highway facility, it can be converted

to the needed land use. Most highway construction ma-

terials are not consumable; therefore, conversion to other

uses may require the reshaping of the existing resources.

Air space as a resource is exercised in situations where it

is economical and feasible to do so. The use of air space

is not eliminated; its use in this project is now, however,

not contemplated.

SECTION 7. Problems and Objections

The coordination and cooperation of the county and

city officials and the assistance rendered by several inter-

ee Oe et

A37

ested citizens organizations and individuals has led to the

resolution of many problems which developed on this proj-

ect.

A few major design problems and objections have been

encountered. An objection to closing one of the parallel

streets has been overcome by the proposal of extending this

side street to an intersecticn approximately 275 feet farther

away from the highway ramp intersection. Another ob-

jection has been overcome by the proposal of including

access at one of the cross streets.

A proposal to not construct this project has been de-

termined invalid. A future traffic impasse along with ad-

verse social, economic and environmental consequences

would be created by this proposal.

SECTION 8. Summary of Steps Taken to Minimize Harm

The summation of the project’s use of the environment

terminates in a cumulative enhancement rather than abuse

of its effect. The project and its total effect was considered

from its inception; therefore, adverse effects were avoided

or prudently minimized.

A depressed main line grade design with short fill areas

to accommodate cross surface drainage will minimize the

ambient noise level, enhance the aesthetic and visual con-

tinuity of the established community, along with a minimum

of division and disruption of present cross traffic facilities.

SECTION 9. Summary of the Environmental Comments

Received at the Design Public Hearing

This summary of the environmental comments will

analyze both positive and negative effects along with ref-

erences to those comments received.

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A38

Numerous comments and letters indicating very little

need for this project, mostly originating from one source

and amplified by an article printed in the Johnson County

Scout dated May 7, 1971 (ref. =65, =78 to =82, =85 to

+127, +177 to +186, +192 to +201, and =311) were re-

ceived. Reference +65 and +311 contained a statement

“up to a week ago very few people outside the commer-

cial interests promoting this project really knew what is

involved or whether or not it is a vital or necessary road

for the county”.

The Switzer Bypass portion of the US-69 highway

has been under consideration by the local county, city and

the State Highway Commission of Kansas since some time

in the 1950’s. (ref. +306 to +310)

A public hearing on the route location was held April

2, 1959. (ref. +307 to =309)

Right of way acquisition on the section north of I-435

was in the process during the period 1959 to 1964. (ref.

R/W records and +310)

Right of way acquisition on the section South of I-435

was acquired during the period 1963-64. (ref. R/W records)

This traffic corridor has been shown as an essential

route in all the planning studies for this area since 1959.

(ref. =2) These studies referred to include “Kansas City

Metropolitan Origin and Destination Study”—Wilbur

Smith and Associates (1959); “Report on Traffic Study

and Master Plan for Roads, Streets and Highways in

Johnson County, Kansas’—Black and Veatch (1967);

“Comprehensive Plan, Overland Park’—Hare and Hare

(1963); and “Cooperative Through Planning”—Metropol-

itan Planning Commission—Kansas City Region (1969

_. Note: Ref. # refers to the design public hearing page

identification number.

A39

annual report and prior reports). (ref. on file) This proj-

ect agreement (22) will service the local area whose

development has been and will continue to be generated

with the road being a major consideration of the planned

activity of the local community. If the northern project is

not constructed the continuity of this traffic corridor would

be broken and therefore the southern project could be re-

placed by a system of arterial streets which would not con-

centrate traffic at one point. Both projects are essential

to facilitate the movement of traffic in this traffic corridor.

Delegations of public officials and the Chamber of

Commerce of Overland Park requested the State Highway

Commission of Kansas to advance the construction of the

entire route (US-69 to I-35). (ref. =302 and +304)

All of the recited circumstances would indicate that

the project has had wide support and publicity, at least

since 1959. The physical evidence of the presence of the

right of way corridor prior to the residential development

and to the planning of the street system of this development,

shows conformance with the alignment of this route and

would seem to have been an adequate indication of the Com-

mission’s intention.

The statement is made that the primary purpose of

this project is to relieve congestion on the Metcalf Avenue

portion of US-69. (ref. =11, =37, =65, +168, =242 and

+311)

Although it is true that the relief to Metcalf Avenue

is a major benefit to be gained from the bypass, there are

many other important reasons for constructing this route.

Support of all local governing bodies including the cities of

Lenexa and Overland Park, the Metropolitan Planning

Commission, Johnson County, and the Junior College

is evidenced by their strong responses. (ref. +13, +17,

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2165-4166, 4222, 227-228, +230, +237, +264-+265

and Section 10-Page 8) Support for the project also comes

from many citizens as evidenced by their letters. (ref.

+161, +163, +170, +174, +190, +203, +207, +209, #211,

3215, $218, $224, +246, =248-2251, +253, #255, +258,

3267, +268, +270 and +274)

Traffic projections show that unless the portion north

of 1-435, this project, is constructed, the existing I-435

(from Switzer Road west to I-35) and existing I-35 (from

the I-435-I-35 junction north to 87th Street) would be

seriously overloaded by the design year of 1990. The sec-

tion of I-435 referred to would have a traffic demand of

over 120,000 ADT, well over its capacity. This same

section, if this project is constructed, would have a traffic

demand of approximately 86,000 ADT which would allow

an acceptable level of service on these sections of the In-

terstate System. (ref. see section 4 and traffic study)

Traffic studies show that approximately 5% of the

total traffic would be trucks. (ref. traffic study) Through

truckers and local truck stops and facilities would benefit

from this route; however the major benefit would accrue to

local traffic originating from adjacent areas and im-

mediately south of I-435.

This indicates approximately 95% of the principal

traffic served will be that of the community college and

the developing residential areas adjacent to the project and

extending south. (ref. traffic study)

The traffic and capacity problems just discussed are

a clear indication that the Commission has indeed con-

sidered alternates including the alternative of not con-

structing the Switzer Bypass portion north of I-435.

The suggestion that the land could be used for a park

if the highway was not constructed (this project). (ref.

A4l

+11, +16, +78 to +82, +85 to +127, +177 to +186,

+192 to +201)

The land in question was acquired partly by the State

Highway Commission and partly by the cities of Overland

Park and Lenexa for highway right of way. The portions

acquired by the cities were paid for by state highway funds;

Kansas law would not permit the Commission to donate

this land for park purposes or to permit such use by the

cities without full reimbursement to the state highway fund.

Part of the land was condemned and part of it was pur-

chased. By condemnation, the Commission can acquire

only an easement for highway right of way. (ref. KSA

68-413). By purchase it can acquire a greater interest

but would not be authorized to dispose of the right of way

so acquired by donation for park purposes, or by selling it

for a limited use, such as for park purposes.

The statements (ref. +311) imply that a representa-

tive of the State Highway Commission of Kansas had

made statements indicating that the Commission was not

really concerned about the effects on the environment or

the cost and was not willing to consider any alternate. As

has been pointed out, the Commission has considered a

number of alternates, including that of not building a road.

Our concern with the environment is evidenced by the

fact that a full environmental statement was prepared for

this project, circulated to over twenty Federal Agencies

as required by law, and this environmental statement was

available at the public hearing. (ref. +1) None of the

fourteen replies from the Federal Agencies commented un-

favorably on the environmental analysis. Only two agen-

cies had precautionary statements. (ref. attachments)

Very few of the comments (those referenced) made at

the public hearing or subsequent to the hearing spoke to

Biievintinin: i cee |

A42

specific environmental factors or to the environmental

statement. A few comments were rade and received about

preservation of certain trees and shrubs along the right of

way.

It appears that in most cases we shall be able to pre-

serve the trees mentioned or will replace them with ade-

quate landscaping.

In response to the individual asking for the construc-

tion of a higher fence than normally constructed (4’), we

propose to install a 5’ high chain link fence. (ref. +16)

In response to not close a parallel street, we are rec-

ommending that this street not be closed but to be ex-

tended to an appropriate intersection iocation. (ref. +15,

17, +18, =19, +20, +63, =129 to +145, +156, +158)

As with all projects the consideration of all environ-

mental factors is a very major item of concern to the State

Highway Commission of Kansas.

In the conclusion of this section, a number of state-

ments and letters indicate a real feeling of compliance to

the consideration and discussion of the environmental ef-

fects. (ref. +13, +14, +17, #18, $19, +21, +70, +161,

+163, =165, +168, +170, +172, =174, +188, +190, +203

to +288)

SECTION 10. Summary of the Environmental Com-

ments Received From Federal Agencies

Twenty-four Federal agencies and several state agen-

cies received a copy of the draft environmental statement

for their review and comment regarding this project.

Eleven of the Federal agencies responded with a con-

currence or no comment; ten did not respond and three

replied as follows:

A43

Department of Health, Education, and Welfare—“It is

suggested, however that precautions be exercised during

construction and with the finished product to insure that

mosquito breeding or other vector problems are not cre-

ated because of it.”

The proposed ditch grades and the drainage structure

design along with the construction specifications, should

preclude mosquito breeding and other vector problems.

U. S. Department of Agriculture-Soils Conservation

Service—“It does not appear that any existing conserva-

tion measures will be affected. Also there should be no ef-

fect on wildlife.” ‘However I believe it would be appro-

priate if the measures to be used, such as early seeding

and application of top soil were mentioned in the state-

ment.”

The proposed Project Water Pollution Control (Soil

Erosion), placing of Select Soil, permanent seeding, and

the landscaping of the intersection locations should ade-

quately cover these suggestions.

Department of the Army-Kansas City District-Corps

of Engineers - - - “The only effect we note will be a prob-

able lake access enhancement.” “No land requirements.”

The state agencies replied as follows:

Department of Administration-Budget Division - - -

“No State objections.”

Kansas State Park and Resources Authority - - - “No

conflict.” “For present and future recreation and park

plans and programs—coordinate with the local identities

of government.”

State Water Resources Board - - - “Would not affect.”

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A44

The Metropolitan Planning Commission-Kansas City

Region replied as follows: “Is a key element.” “Will aid

and influence the shaping of future development.” “We

are in agreement.”

In that no specific negative comment was received

from the federal and state agencies addressed toward en-

vironmental features and that any comment offered was

positive in nature, concurrence in the draft environmental

statement has been given by all Federal Departments as

required by Section 102(2)(C), P.L. 91-190, the National

Environmental Policy Act of 1969.

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APPENDIX F

ENVIRONMENTAL PROTECTION AGENCY

Washington, D.C. 20460

Mr. Robert W. Morrissey

Division Engineer

Federal Highway Administration

512 West 6th Street

Topeka, Kansas 66603

Dear Mr. Morrissey:

In response to the final environmental impact state-

ment which the Federal Highway Administration has filed

with the President’s Council on Environmental Quality

on the proposed completion of U.S. 69 (Switzer Bypass)

project No. 69-46 U832-3(22) and pursuant to Section 309

of the Clean Air Act, as amended, dated December 1970,

we have the following comments to make on the project’s

final environmental impact statement.

Two major environmental impacts of the project which

were not investigated in sufficient depth are air pollution

and excessive noise levels.

1. The statement points out that the freeway will

probably attract additional traffic. The traffic will be

moving at freeway speeds and will not emit as many

pollutants per car as stop and start slow-moving traffic.

However, it is not clear that there will be a net reduc-

tion in air pollutants in the area. Studies were not done

to determine what the ambient air pollution level will

be in the adjacent residential areas.

2. The noise level generated by the freeway traffic

moving at high speeds may be much higher than with

oN EE RA SA NY

A47

normal stop and start driving on local roads. Studies

should be made to determine if the projected noise levels

will exceed those acceptable for residential areas. We

suggest you see FBF, procedure memorandum PPM90-

2 “Noise Standards.”

Because of the lack of data on both air pollution and

noise levels which will result from the project, it is impos-

sible to determine the extent or impact of environmental

damage. We suggest that data sufficient to make these

determinations be compiled before construction is initiated.

Very truly yours,

Jerome H. Svore

Regional Administrator

ce: Mr. Dan Joseph

General Council, EPA

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A48

APPENDIX G

Transmittal 202

90-1

August 24, 1971

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL HIGHWAY ADMINISTRATION

POLICY AND PROCEDURE MEMORANDUM

GUIDELINES FOR IMPLEMENTING SECTION 102(2)(C)

OF THE NATIONAL ENVIRONMENTAL POLICY ACT

OF 1969, SECTION 1653(f) OF 49 U.S.C., SECTION 470f

OF U.S.C., AND SECTION 309 OF THE CLEAN AIR ACT

OF 1970

Par. Purpose

Authority

Definitions

Policy

Application

er PP PP

Procedures

Appendix A—Procedures on Historic Preservation

Appendix B—Example of Design Concurrence Let-

ter

Appendix C—Location Stage Flow Chart

Appendix D—Design Stage Flow Chart

Appendix E—Environmental Statements—Contents

and Format

Appendix F—Evaluating Highway Section Environ-

mental Effects

Appendix G—lInter-Agency Review of Draft Envi-

ronmental Statements

DARN ACRES Ze ~ a

A49

Appendix H—Selections from PPM 20-8, dated Jan-

uary 14, 1969, for use with the National Environ-

mental Policy Act Guidelines

Appendix I—Purchasing Copies of Environmental

Statements

1. PURPOSE

To provide guidelines to highway departments and

Federal Highway Administration (FHWA) field offices to

assure that the human environment is carefully considered

and national environmental goals are met when developing

federally financed highway improvements.

2. AUTHORITY

a. Section 102(2)(C) of the National Environmental

Policy Act of 1969 (P.L. 91-190) states that all agencies

of the Federal Government shall:

“include in every recommendation or report on pro-

posals for legislation and other major Federal actions sig-

nificantly affecting the quality of the human environment,

a detailed statement by the responsible officials on - - -

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot

be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses

of man’s environment and the maintenance and enhance-

ment of long-term productivity, and

(v) any irreversible and irretrievable commitments

of resources which would be involved in the proposed

action should it be implemented.

A50

Prior to making any detailed statement, the responsible

Federal official shall consult with and obtain the comments

of any Federal agency which has jurisdiction by law or

special expertise with respect to any environmental impact

involved. Copies of such statement and the comments

and views of the appropriate Federal, State, and local

agencies which are authorized to develop and enforce envi-

ronmental standards, shall be made available to the Presi-

dent, the Council on Environmental Quality and to the

public as provided by Section 552 of Title 5, United States

Code, and shall accompany the proposal through the exist-

ing agency review processes.”

b. Section 1653(f) of 49 U.S.C.1, Section 138 of 23

U.S.C., and Section 4(f) of the Department of Transporta-

tion Act (all of which are hereafter referred to as “Section

4(f)”) permits the Secretary of Transportation to approve a

program or project which requires the use of publicly

owned land from a park, recreation area, or wildlife and

waterfowl refuge of national, State, or local significance as

determined by the Federal, State, or local officials having

jurisdiction thereof, or land from an historic site of na-

tional, State, or local significance as so determined by such

officials (hereafter “Section 4(f) land’’) only if:

(1) there is no feasible and prudent alternative to

the use of such land, and

(2) such program includes all possible planning to

minimize harm to the Section 4(f) land resulting from

such use.

1. Section 1653(f) of 49 U.S.C. is identical to Sections 138

of 23 U.S.C. and 4(f) of the Department of Transportation Act

oo in Section 18 of the “Federal-Aid Highway Act of

1969.”

A351

c. Section 470f of 16 U. S. C2 provides that the head

of any Federal agency having direct or indirect jurisdic-

tion over a proposed Federal or federally assisted under-

taking in any State and the head of any Federal depart-

ment or independent agency having authority to license

any undertaking shall, prior to the approval of the ex-

penditure of any Federal funds on the undertaking or prior

to the issuance of any license, as the case may be. take

into account the effect of the undertaking on any district,

site, building, structure, or object that is included in the

National Register. The head of any such Federal agency

shall afford the Advisory Council on Historic Preservation

a reasonable opportunity to comment with regard to such

undertaking.

d. Section 309 of the Clean Air Act of 1970 (Public

Law 91-604), as amended, provides:

“(a) The Administrator (Environmental Protection

Agency) shall review and comment in writing on the en-

vironmental impact of any matter relating to duties and

responsibilities granted pursuant to this Act or other pro-

visions of the authority of the Administrator, contained in

any ... (2) newly authorized Federal projects for con-

struction and any major Federal agency action (other than

a project for construction) to which Section 102 (2) (C)

of Public Law 91-190 applies .... Such written comment

shall be made public at the conclusion of any such review.”

3. DEFINITIONS (as used in this memorandum)

a. Highway Section—a substantial length of highway

between logical termini (major crossroads. population

centers, major traffic generators, or similar major high-

2. This requirement is also found in Section 106 of the

National Historic Preservation Act of 1966.

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A52

way control elements) as normally included in a single

location study. (See paragraph 6).

b. Agency Decision—FHWA approval of the location

of a highway improvement. (Subsequent approval of the

design; right-of-way acquisition; the plans, specifications,

and estimates (PS&E) or authorization to construct a proj-

ect within the highway section is not, for the purposes of

this memorandum, an additional agency decision. )

(1) A determination to prepare and process a sup-

plemental environmental statement would be the basis for

a new agency decision for either a highway location or

design. (See paragraph 6p).

(2) In accordance with the Secondary Road Plan as

permitted by Section 117 of Title 23 U. S. C., the approvals

of the location, design, right-of-way acquisition and con-

struction (PS&E) have been delegated to the appropriate

State highway department for highway improvements on

the Federal-Aid Secondary System.

c. Environmental Statement—a written statement

containing an assessment of the anticipated significant

beneficial and detrimental effects which the agency de-

cision may have upon the quality of the human environ-

ment for the purposes of:

(1) assuring that careful attention is given to en-

vironmental matters,

(2) providing a vehicle for implementing all appli-

cable environmental requirements, and

(3) to insure that the environmental impact is taken

into account in the agency decision.

d. Negative Declaration—a written document in sup-

port of a determination that, should the proposed highway

SPORE on

7a Ee Oe OS a IR Tae ES

secticn improvement be constructed, the anticipated effects

upon the human environment will not be significant.

e. Highway Agency (HA)—the agency with the

primary responsibility for initiating and carrying forward

the planning, design, and construction of the highway.

For highway sections financed with Federal-aid highway

funds, the HA will normally be the appropriate State high-

way department. For highway sections financed with

other funds, such as Forest highways, Park roads, etc., the

HA will be the appropriate Federal or State highway

agency.

f. Human Environment—the aggregate of all ex-

ternal conditions and influences (aesthetic, ecological, bio-

logical, cultural, social, economic, historical, etc.) that af-

fect the life of a human.

* + *

ENVIRONMENTAL STATEMENTS—CONTENTS AND

FORMAT

1. Environmental statements and combination en-

vironmental,Section 4(f) statements (draft and final)

shall have a title page similar to the examples attached

to this Appendix.

2. The following sections, as a minimum, are to be

covered in environmental statements:

a. A description of the proposed highway improve-

ment and its surroundings. The description should in-

clude the following type information: type of facility;

length; termini; basic traffic data, including trips for the

design year and anticipated new trips generated two years

after completion of the highway section; right-of-way width

(including existing ROW); lengths on existing and new

location; major design features such as number of lanes,

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A54

access control, location of bridges and interchanges, etc.:

a general description of the surrounding terrain, existing

land use and propcsed land use (a map preferable), and

other existing environmental features; existing highway

facilities including their deficiencies; the need for the pro-

posal; the benefits to the State, region, and community;

an estimate of when the proposal will be constructed; and

the current status of the proposal with a brief historical

resume. Inventory of economic factors such as employ-

ment, taxes, property values, etc., should be included as

appropriate. The description should also include any in-

volvement with Section 4(f) land (Paragraph 3 of this

Appendix). A vicinity map(s) shall be furnished which

will show the proposed highway section and its relation-

ship to surrounding natural and cultural features such as

towns, lakes, streams, mountains, historic sites, landmarks,

institutions, developed areas, principal roads and highways

and similar features that are pertinent to a highway study.

Detailed maps, sketches, pictures, and other visual exhibits

should be used to show specific environmental involve-

ments as necessary. Maps and layouts of the proposed

highway/Section 4(f) land involvement should be suffi-

ciently detailed to give a layman reviewer a reasonable

understanding of the highway impact and proposed mea-

sures to minimize harm.

b. The probable impact of the proposed develop-

ment or improvement. The evaluation and discussion

should specifically emphasize significant beneficial and

detrimental environmental consequences upon the State

or region or community, as appropriate, of building a new

highway into or through an area, or modernizing the ex-

isting highway by upgrading and/or relocation.

(1) This section, for instance, would discuss and

evaluate the broad impacts on the area or regain such as

A55

the problems relating to anticipated increase in urbani-

zation or the probable impact of displacing people (if these

are significant elements of the highway proposal). Efforts

to minimize impact should also be discussed in broad items.

For example, measures necessary to insure proper rehous-

ing should be discussed rather than evaluating specific

number of people displaced by different alternatives and

other differences of the alternatives. The significant en-

vironmental impacts of alternative locations and, as appro-

priate, designs, including a “do nothing” alternative is a

proper subject for discussion under “Alternatives” para-

graph 2d of this Appendix.

(2) Impacts upon the narrow band (i.e., about

1000 feet) adjacent to the highway may be included when

significant to the whole of the region or community. How-

ever, the discussions under this section should address

the probable significant impacts of the highway proposal

(as opposed to individual alternative locations or designs)

which might include the probable impact upon such ele-

ments, factors, and features listed in paragraph 3 of Ap-

pendix F.

c. Any probable adverse environmental effects which

cannot be avoided should the proposal be implemented

such as water or air pollution, effect upon Section 4(f)

land, damage to life systems, urban congestion, threats to

health or other consequences adverse to the environment

identified under paragraph 2b of this Appendix. Adverse

effects should include those which cannot be reduced in

severity and those which can be reduced (but not elimina-

ted) to an acceptable level unless the reductiion is a result

of a different location in which case it should be included

in the discussion of alternatives (paragraph 2d of this

Appendix).

A56

d. Alternatives: The locations andor designs

studied in detail by the HA are to be described (narra-

tively and with maps ard other visual aids, as necessary)

and the probable beneficial and/or adverse effects of each

alternate (including a do-nothing alternative) identified

to the extent practicable consistent with the scale of the

proposed highway improvement and significance of the

impact. The exploration of alternatives should include an

objective evaluation and analysis of estimated costs (social

and transportation), engineering factors, transportation

requirements, and environmental consequences. The

description of alternatives will include information, as

appropriate, similar to that suggested in Section A of this

Appendix. The discussion of environmental impacts will

include more detailed impacts for each alternative than

the broad environmental consequences for the corridor

identified in paragraphs 2b and 2c of this Appendix. The

draft environmental statement should indicate that all al-

ternatives are under consideration and that a specific al-

ternative will be selected by the HA following the public

hearing. The final environmental statement will be pre-

pared for the selected alternative. Unless the final state-

ment is included in the location study report (design re-

port when prepared and circulated during design study),

the final statement should include a brief discussion of the

data supporting the se'ected alternative. This section

should also include a discussion of alternatives to the use

of Section 4(f) lands.

e. The relationship between local short-term uses of

man’s environment and the maintenance and enhance-

ment of long-term productivity. The short-term uses

should be evaluated (construction, changes in traffic pat-

terns, the taking of natural features such as trees, etc.,

and man-made features such as homes, churches, etc.) as

compared to the long-term effects (foreseen changes in

So AEE OS RRS We 2 ee

AS7

land use resulting from the highway improvement or other

similarly related items that may either limit or expand

land use, affect water, air, wildlife, etc., and other en-

vironmental factors).

f. Any irreversible and irretrievable commitments of

resources which would be involved in the proposed action

should it be implemented. Highways require use of nat-

ural resources such as forest or agricultural land, however,

these are generally not in sufficient quantity to be sig-

nificant. The improved access and transportation af-

forded by a highway may generate other related actions

that could reach major proportion and which would be

difficult to rescind. An example would be a highway im-

provement which provides access to a nonaccessible area,

acting as a catalyst for industrial, commercial, or residen-

tial development of the area.

g. Where unavoidable adverse environmental effects

are encountered, planning and measures taken and pro-

posed to minimize harm should be identified. These in-

clude procedural and standard measures which are re-

quired by standard specifications or standard operating

procedures such as erosion control, stream pollution pre-

vention, borrow pit screening or rehabilitation, fencing,

relocation of people and businesses, land acquisition pro-

cedures, joint development, etc. Measures unique to a

specific project should be discussed in detail. Examples

of such would be depressing an urban highway to mini-

mize audio and visual effects, providing buffer zones for

esthetic purposes, replacement of parklands, etc.

h. Final statements shall incorporate all comments

received on the draft (including environmental com-

ments contained in the public hearing transcript) along

with a discussion of the comments and suggestions. The

HA shall describe its disposition of the comments and

suggestions (e. g., revisions to the proposed development

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A358

or improvement to overcome anticipated problems or ob-

jections; reasons why specific comments and suggestions

could not be accepted; factors of overriding importance

prohibiting the incorporation of suggestions, etc.). This

section may be added at the end of the review process in

the final text of the environmental statement.

i. Measures to minimize harm to Section 4(f) lands

should be included under a separate paragraph even

though discussed elsewhere in the final statement.

j. Each copy of draft and final environmental state-

ments should be accompanied by a summary sheet pre-

scribed as attached to this Appendix.

3. The following information, when pertinent and

available, should be included in the combination environ-

mental /Section 4(f) statements. (See paragraphs 2a, 2c,

2d, and 2i of this Appendix.) To the extent practicable,

this information should be included in the draft to initi-

ate the necessary interagency review.

a. The description of the project (see paragraph 2a

of this Appendix) shall include information about the Sec-

tion 4(f) land in sufficient detail to permit those not ac-

quainted with the project to have an understanding of the

relationship the highway and park and the extent of the

impact, such as:

(1) Size (acres or square feet) and location (maps

or other exhibits such as photographs, slides, sketches,

etc., aS appropriate).

(2) Type (recreation, historic, etc.).

(3) Available activities (fishing, swimming, golf,

etc.). .

(4) Facilities existing and planned (description and

location of ball diamonds, tennis courts, etc.}.

we - mR OT eR re Se a ee a ee CE ee

A59

(5) Usage (approximate number of users for each

activity if such figures are available).

(6) Patronage (local regional, and national).

(7) Relationship to other similarly used lands in the

vicinity.

(8) Access (both pedestrian and vehicular).

(9) Ownership (city, county, State, etc.).

(10) If applicable, deed restrictions or reversionary

clauses.

(11) The determination of significance by the Fed-

eral, State, or local officials having jurisdiction of the

Section 4(f) land.

(12) Unusual characteristics of the Section 4(f) land

(flooding problems, terrain conditions, or other features

that either reduce or enhance the value of portions of

the area).

(13) Consistency of location, type of activity, and

use of the Section 4(f) land with community goals, ob-

jectives, and land use planning.

(14) If applicable, prior use of State or Federal funds

for acquisition or development of the Section 4(f) land.

b. A description of the manner in which the highway

will affect the Section 4(f) land (include within paragraph

2c of this Appendix) such as:

(1) The location and amount of land (acres or square

feet) to be used by the highway.

(2) A detailed map or drawing of sufficient scale

to discern the essential elements of the highway /Section

4(f) land involvement.

(3} The facilities affected.

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A60

(4) The probable increase or decrease in physical

effects on the Section 4(f) land users (noise, fumes, etc.).

(5) The effect upon pedestrian and vehicular access

to the Section 4(f) land.

c. Aspecific statement (with supporting reasons) that

there is no feasible and prudent alternative. (Include

in discussion of alternatives, paragraph 2d of this Ap-

pendix. )

d. Information to demonstrate that all possible plan-

ning to minimize harm is or will be included in the high-

way proposal. (See paragraph 2i of this Appendix.) Such

information should include:

(1) The agency responsible for furnishing the high-

way right-of-way.

(2) Provisions for compensating or replacing the Sec-

tion 4(f) land and improvements thereon, including the

status of any agreements. (Include agreed upon compen-

sation, replacement acreages, and type land, etc., when

known. )

(3) Highway design features developed to enhance

the Section 4(f) land or to lessen or eliminate adverse

effects (improving or restoring existing pedestrian or ve-

hicular access, landscaping, esthetic treatment, etc.). .

(4) Coordination of highway construction to permit

orderly transition and continual usage of Section 4(f) land

facilities (new facilities constructed and available for use

prior to demolishing existing facilities, moving of facilities

during off-season, etc.).

e. Evidence that the provisions of Section 470(f) of

16 U.S.C. (Section 106 of the Historic Preservation Act

of 1966) have been satisfied when National Register Prop-

erties are involved.

~ N rine nern ge e

A61

SUGGESTED FORMAT—DRAFT STATEMENT

DEPARTMENT OF TRANSPORTATION

FEDERAL HIGHWAY ADMINISTRATION

Prepared by

(Appropriate Highway Agency )

DRAFT

(Environmental Statement of Environmental/Section

4(f) Statement)

ADMINISTRATIVE ACTION

for

(Brief Description of Highway Improvement: Route,

Termini, County, City, etc.)

THIS HIGHWAY IMPROVEMENT IS PRCPOSED FOR

FUNDING UNDER TITLE 23, U.S.C. THIS STATEMENT

FOR THE IMPROVEMENT WAS DEVELOPED IN CON-

SULTATION WITH THE FEDERAL HIGHWAY AD-

MINISTRATION AND IS SUBMITTED PURSUANT TO:

SECTION 102(2) (C)

PUBLIC LAW 91-190

and

(when applicable)

Section 4(f)

PUBLIC LAW 89-670

Date Signature of Appropriate Highway

Agency Official

CLEARED BY FHWA FOR CIRCULATION AND COM-

MENTS

Date Signature of FHWA Reviewing Official

we NOIR ROL ar Mate PRA She Pe Upnieety

tis he at

Brcoane tere ennees

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.