# Petition for a Writ of Certiorari — Citizens Environmental Council v. Brinegar > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1646%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1974 - **Citation:** 416 U.S. 936 ## Text oo rTP ee 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 II 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 3 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 4 ‘= 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- 5 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). S 7 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 8 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). 9 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 10 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. 11 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). 13 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 14 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). 15 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. 9 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 = 3 H B 5 e & : z. & & & > E 4 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 | a 2 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: se ‘. . . 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. I SR 2 Qe NRC IDRLIR em TRAE NRE a) SATE MON Fe OE OA TO JOR POP ING 2 TTA, DIE Fut em 4 Pb PIO NY eRe CARL IM See GON Browse Push GIB wes ei re ere ree 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. 4 & : 5 8 i = : = E Hl ; ¢ 3 sagrieg 9 Pars (peererrtecannarngs onneng pmveocavn ys rh BE Bitten. Bala 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. 5 i t PPMP IL IT EM Par ar os PY Beteerocrs | ee ns 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. (c) The Congress recognizes that each person should 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; (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the 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 oo 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. a ae nea Be JED NE Sl EE i A SS <= 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. PEPPER ROE TET ER TAN IRIAN HRA DeWCENNE NONE MONET ORA ApBE RAL CAEN, OME RA INE SMYTHE NL MTSE ME OR pare payee DTI AWN HOM (Py PY Re TRL a ie he OLA AR ADNAN LTR RT Arh NAA Ahad ile ac LAP re ett ee es 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. epee ee Mee ne DONA ALLRED BON PEE ME HAART EL NR OT Ow et AP FRE PRION TATE SED RH PRD TNE (P PPR PUM MCL ihe ee Bronisotiersie A SY Seah al A ie 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. f E 5 E [ f . . Oe SRA SPNS RR NER NEEDED TIENEN TERTTIA NE EMT MELA BOY 3A SLOANE SEE YT ON POR SPURS PEAR PTH om cen ; cat * yal ee AN i Bee ssctissxte 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, Se etn ntl tesa cs bh etl ie nhc i a a ld EER TN ee a MPA ARUN D ON LTA = isha aes Matar) is Soca Sa Set ats aR Sk aes ORNS, Ee A40 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 i a 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.” ee ee TS eee Beaten By ee er ered 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. PB a tty oyuutoyty fl TAPUNVOR EPA e EVA RONER® Se sock dee Oe AMS Bid ML By Bl ities EE sa Bash Ole Lleol IOS, teeneeeennnenes Savou JOVINOUS ao ee LINIWIAOUIWI ata ae as a ee 0009 000b pune (22/6: C90 9p 69 log IN4aWLYVd3I0 NOISIG SVSNVX JO NOISSINWOD AVMHOIH JLVIS WL AQ OU Hid VXINTT — = WUVd ONVIUTAD (SSVd-AG WIZLINS) FVII 69 “SN ALNNOD NOSNHOF DAO WET __ Nt. SSS | eapayny bi (sev A46 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 OP Net ae iy eee ee S.Ter a RRNA EOS lal aie antes Lane dk cakes Coin inbe babel LEU PP GRAER LE PRETO AL SOR TI YP D AGAINST ee en aes Bara Ce ah CORO TS lee 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. RY MOS page v RONEN PONTE AILL EGE TERING ARTI IO TENA PO RENN OF LELIT FY ENT AGS STR NE Cm MR Re DT Bittern 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, Cpe: MOLES a is ei i A atl a Ps wvs 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 & - < re NWN ARM CAN UAE 9 7 Se a RN Ce alin ees a ST) Toe ke Row Ep cow ree 6 va eid un, 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. a Be as HEIR YT OMHMNT AT eee ih rien ak aaa nh SOTO GY Cha RIL Bevere AMET EY 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1646%3A1. Public record. Not legal advice.