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Corridor H Alternatives v. Slater

Citation: 28 ELR 20469
No. 96-2622, 982 F. Supp. 24/(D.D.C., 10/08/1997)

The court holds that the Federal Highway Administration and the West Virginia Department of Transportation's decision to support the building of a new, four-lane highway as part of the Appalachian Highway Development System complied with the National Environmental Policy Act and § 4(f) of the Department of Transportation Act (DOTA). The court first holds that the agencies' consideration and rejection of an alternative plan was reasonable in light of the goals, needs, and purposes that they set for the project. The record indicates that the agencies did give substantial consideration to the alternative. They concluded that it suffered from significant, insurmountable structural and functional deficiencies and that it would not meet the goals and needs of the project. The court next holds that the agencies' decision not to prepare a supplemental environmental impact statement (SEIS) when they changed the alignment of the proposed highway was not arbitrary or capricious. The record demonstrates that the agencies took a "hard look" at the new alignment and determined that it imposed no significant effects beyond those studied in the expansive alignment selection draft SEIS.

The court also holds that DOTA § 4(f)'s compliance scheme described in the record of decision (ROD) does not violate the federal statute or regulations. The agencies issued the ROD, but made final approval of the project contingent upon compliance with a programmatic agreement that mandates completion of the determination of which sites are eligible for the National Register of Historic Places under National Historic Preservation Act § 106. Although full compliance with § 4(f) is impossible to achieve prior to the approval of the ROD, the agencies have made a good-faith effort to achieve as certain compliance as is possible at this stage. The agencies have taken a hard look at the problems associated with DOTA § 4(f) compliance for a project of this magnitude and have arrived at a practical, functional solution to these problems.

The court further holds that the agencies' § 4(f) determinations for numerous unnamed historic resources are not ripe for review. The agencies may still be engaged in decisionmaking on these unnamed, potentially late-discovered § 4(f) resources. The court does hold, however, that the agencies have made a final determination about the nonuse of two battlefields, and that determination is ripe for review. The court also holds that the agencies' determination that another site is not a § 4(f) resource is ripe for review. Finally, the court holds that the agencies' decisions that the new alignment avoids use of the battlefields and that the other site is not a § 4(f) resource were not arbitrary and capricious.

Counsel for Plaintiffs
Andrea C. Ferster
National Wildlife Federation
1400 16th St. NW. Washington DC 20036
(202) 797-5427

Counsel for Defendants
Stephanie M. Parent
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000